CEQA Standing and Exhaustion Rules Applied In Action Challenging City of San Jose’s General Plan Update

by Miller Starr Regalia
Contact

The Sixth District Court of Appeal, in a published decision filed September 30, 2013, reversed a grant of summary judgment in favor of defendant City of San Jose in an action challenging its “Envision San Jose” comprehensive general plan update. California Clean Energy Committee v. City of San Jose (6th Dist. 2013) ___ Cal.App.4th ___, 2013 WL 5803717. The trial court found plaintiff CCEC failed to exhaust administrative remedies (as required to file a mandamus action challenging the general plan EIR) because it did not file an administrative appeal of the City planning commission’s certification of the EIR (as required by the City’s Municipal Code). The Court of Appeal held this was in error because under CEQA’s delegation rules the planning commission couldn’t validly make a final EIR certification decision that could be appealed to the Council.

The case’s relevant facts are simple.  The public comment period for the Draft EIR (DEIR) ran from June 17, 2011, to August 1, 2011. Within that period, on July 28, 2011, CCEC submitted a written comment letter to City raising all the issues ultimately raised in its lawsuit. City’s planning commission held a public hearing on the Final EIR (FEIR) on September 28, 2011, and even though it was only an advisory body to the City Council with respect to approval of the general plan update, it issued a resolution purporting to certify the FEIR on that date. The resolution declared the FEIR was completed in compliance with CEQA, reflected the independent judgment of City, and that copies would be delivered to the City’s decisionmaking body (City Council) for the project.

CCEC then submitted another letter on October 31, 2011, to City’s planning, building and code enforcement department requesting the planning commission include in its administrative record a certain study, but did not file an administrative appeal of the commission’s certification of the FEIR. The City Council held a public hearing on the general plan update on November 1, 2011, which CCEC representatives apparently did not attend. The City Council’s minutes indicated it received the planning commission’s recommendations, and its resolution indicated the planning commission had certified the FEIR and that no administrative appeal of that certification had been filed as provided by City’s Code. Council’s resolution further stated it certified the FEIR as compliant with CEQA, and made findings it had independently reviewed and analyzed the FEIR prior to approving the general plan update.

The Court of Appeal’s published opinion emphasized the following bases for its decision reversing the trial court’s summary judgment for City and holding CCEC’s general plan EIR challenge could proceed to trial:

  • The FEIR was not properly certified by the planning commission because that body was not the decisionmaking body for the general plan update, i.e., it was not vested with the power to approve or disapprove a general plan; rather, the City Council was. CEQA mandates that the lead agency’s decisionmaking body not delegate the function of reviewing, considering and certifying the FEIR to a non-decisionmaking (i.e., advisory) body. (14 CCR § 15025(a),(b)(1).)
  • While a non-elected decisionmaking body of a lead agency may be delegated the function of certifying a FEIR, its decision in such a situation must be appealable to the lead agency’s elected decisionmaking body. (Pub. Resources Code, § 21151(c).)  Here, however, the planning commission was a non-elected non-decisionmaking body. Accordingly, its certification of the FEIR could never be a final decision, and therefore it need not be appealed (as improperly contemplated by City’s Code) in order for a potential plaintiff to exhaust administrative remedies. Rather, the Council – as City’s elected decisionmaking body – was itself required by CEQA to certify the FEIR before, and in conjunction with, making its decision on the project.
  • Further, CEQA does not permit the City Council to delegate to the planning commission any aspect of FEIR certification, since the commission is not a decisionmaking body, and “environmental review is not supposed to be separated from project approval.” Consistent with CEQA’s fundamental principle requiring interpretation of its provisions so as to “afford the fullest possible protection of the environment within the reasonable scope of the statutory language[,]” it does not permit a “bifurcation [which] would allow for a decisionmaking body to be bound by a finding made by a non-elected non-decisionmaking body that the final EIR is completed in compliance with CEQA, [as that] would skirt the purpose of CEQA by segregating environmental review of the EIR from the project approval…..” Further, “[t]his could also produce a situation in which the City Council could be bound by a finding that it finds flawed – that the final EIR is complete and in compliance with CEQA.”
  • The City Council’s independent certification of the FEIR was not faulty under CEQA’s delegation rules; however, the local Code’s provision requiring an administrative appeal of the planning commission’s purported “final” certification decision was faulty, and thus did not prescribe an actual administrative remedy that would-be plaintiffs would legally be required to exhaust.

In light of the foregoing rules and principles, the only issue to be resolved by the Court of Appeal was whether (1) CCEC’s letter sent to the planning commission within the DEIR public comment period, and (2) its subsequent letter to the planning, building and code enforcement department sufficed under CEQA to exhaust its administrative remedies by raising the issues to be litigated to the decisionmaking body. They clearly did. CCEC obtained standing to litigate under CEQA by submitting its timely public comment letter to the planning commission even though it didn’t appear before the City Council. (See Pub. Resources Code, § 21877(a); Tahoe Vista Concerned Citizens v. County of Placer (2000) 81 Cal.App.4th 577, 590.) Because (1) the City Council here reviewed the FEIR, along with all comments submitted during the public comment period in connection with its certification decision, (2) no administrative appeal of any subsidiary body was legally required, and (3) CCEC’s letters raised all issues raised in its lawsuit, CCEC did not fail to exhaust administrative remedies.

Written by:

Miller Starr Regalia
Contact
more
less

Miller Starr Regalia on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.