In California Clean Energy Committee v. City of San Jose, the Sixth District Court of Appeal recently held that the City Council of the City of San Jose (“City”), not the Planning Commission, was required to certify an EIR for the City’s general plan update because the City Council held the power to approve the project, not the Planning Commission.   

In 2011, the City released the Draft EIR for its general plan update for comment, and the California Clean Energy Committee (“CCEC”) submitted comments challenging the Draft EIR’s sufficiency.  The Planning Commission next considered and certified the Final EIR, in accordance with the City’s Municipal Code.  In a subsequent hearing, the City Council also certified the Final EIR and approved the general plan update.  Although CCEC submitted a comment letter to the City in between the Planning Commission and City Council hearings, it failed to administratively appeal the Planning Commission’s certification of the EIR to the City Council.

CCEC timely filed a petition for writ of mandate challenging the EIR, and the City moved for summary judgment, arguing that the CCEC failed to exhaust its administrative remedies by not appealing the Planning Commission’s EIR certification.  The trial court granted summary judgment in the City’s favor on that basis, and the appeal followed. 

Reversing the trial court, the appellate court found that the Municipal Code improperly delegated the City Council’s EIR certification duties to the Planning Commission.

As the Court explained, CEQA Guidelines § 15090(a)(2) requires that the “decision-making body” of a public agency review and consider a final EIR prior to approving a project.  Here, the City’s ordinances did not delegate approval of the City’s general plan to the Planning Commission.  Thus, the Court held that the City’s Planning Commission was not a “decision-making body” with respect to the General Plan and, therefore, could not certify the Final EIR.[1]

Having disposed of the issue of improper delegation of authority, the Court went on to conclude that the CCEC had also exhausted its administrative remedies for the issues raised in its petition.  Rejecting the City’s claim that the CCEC failed to exhaust, the Court found that because the Planning Commission lacked the authority to certify the EIR, the CCEC was not required to appeal from the Planning Commission’s certification of the final EIR to exhaust its administrative remedies. 

Distinguishing Tahoe Vista Concerned Citizens v. County of Placer, 81 Cal. App. 4th 577 (2000), the Court explained that the CCEC’s comment letters were fairly presented to the City Council because it was the administrative body with the responsibility to approve or disapprove the project, and the City Council reviewed the entire record de novo. 

[1] The Court noted that a nonelected decision-making body like a Planning Commission could certify an EIR under CEQA, but only where the nonelected decision-making body had the authority to approve the project at issue.  See California Oak Foundation v. Regents of University of California, 188 Cal. App. 4th 227 (2010) (University of California Regents’ committee was authorized to both approve the project and certify the EIR).

 [AU1]Pull out quote for blog post

. . . the Court held that the City’s Planning Commission was not a “decision-making body” with respect to the General Plan and, therefore, could not certify the Final EIR[AU1]