- City Planning Commission’s Certification of EIR Found Improper Because City Council Improperly Delegated CEQA Certification
- November 11, 2013
- Law Firm: Kronick Moskovitz Tiedemann Girard A Law Corporation - Sacramento Office
A city’s planning commission certified an Environmental Impact Report (“EIR”) for a city general plan update and recommended the city council approve the update. The certification and approval were not appealed to the planning commission but the city council held a hearing and certified the EIR and adopted the general plan. An organization filed suit challenging the EIR on the grounds that the approved EIR fell below California Environmental Quality Act (“CEQA”) standards and that the EIR required recirculation. The trial court granted summary judgment for the city on the grounds that the organization failed to exhaust its administrative remedies. The appellate court reversed finding that the organization properly exhausted its administrative remedies for two reasons: 1) the organization was not required to appeal the planning commission decision because the planning commission did not have authority to certify the EIR and 2) the organization administratively raised its concerns with respect to the adequacy of the EIR in its comment letter to the city council. (California Clean Energy Committee v. City of San Jose (September 30, 2013, H038740) --- Cal.Rptr.3d ---- [13 Cal. Daily Op. Serv. 12,075].
The City of San Jose (“City”) created an update to its general plan, along with an EIR analyzing the plan’s potential environmental effects. During the public comment period, the organization California Clean Energy Committee (“CCEC”) submitted written comments criticizing the general plan update and the EIR to the City’s planning commission. The commission certified the EIR and recommended that the City Council approve the general plan update. The CCEC also submitted comments to planning, building, and code enforcement that were received by the City Council before the Council approved the general plan update and made its own certification that the EIR had been completed in compliance with CEQA.
CCEC filed suit to challenge the approval and EIR certification. The City motioned for summary judgment, arguing that the CCEC did not exhaust its administrative remedies because it did not appeal the planning commission's certification of the EIR. The trial court agreed with the City and granted summary judgment in the City’s favor.
CCEC successfully appealed to the Sixth District Court of Appeal.
Delegation of EIR Certification
The appellate court observed that under CEQA, a “lead agency” is defined as the public agency which has the principal responsibility for carrying out or approving a project.” A “decision-making body” is defined as “any person or group of people within a public agency permitted by law to approve or disapprove the project at issue.” The lead agency may delegate certification of an EIR to a decision-making body, as long as the laws or ordinances of the lead agency have granted that decision-making body the power to approve or disapprove the project under consideration by the lead agency.
The court explained that, theoretically, a lead agency could be a city council, and a decision-making body could be the lead agency’s planning commission, provided that the planning commission had the ability to approve or disapprove projects under the ordinances or laws of the lead agency. However, the problem in this case was that under the San Jose Municipal Code, the planning commission lacked the power to approve or disapprove a general plan update. This lack of power to approve the update meant that the planning commission was not a decision-making body under CEQA. In turn, because the planning commission was not a CEQA decision-making body, it was improper for the City Council to delegate certification of the EIR to the planning commission.
Although the court found fault with the planning commission’s certification of the EIR, it found that the City Council’s subsequent certification of the EIR was proper under CEQA.
Exhaustion of Administrative Remedies
The court explained that in order to have a CEQA case heard in court, a petitioner such as CCEC must show it has taken advantage of all available administrative remedies. CEQA provides “[a]n action or proceeding shall not be brought . . . unless the alleged grounds for noncompliance with this division were presented to the public agency orally or in writing by any person during the public comment period provided by this division or prior to the close of the public hearing on the project before the issuance of the notice of determination.” (Pub. Resources Code, § 21177, subd. (a).)
Here, the appellate court found that because the planning commission’s certification of the EIR was improper, CCEC did not have an administrative appeal available to it, and so CCEC had done all it could to exhaust administrative remedies. Regarding the City Council’s subsequent certification of the EIR, the appellate court found that the CCEC also had no administrative appeal available, and so the CCEC’s comment letters to the planning commission and the planning department adequately exhausted administrative remedies.
The appellate court reversed the trial court’s granting of the motion for summary judgment, allowing the CCEC to move forward with its CEQA lawsuit.