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

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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.