Pub. order 10/29/13 (see end of opn.).
Santa Clara County Superior Court No. CV212623 Hon. Joseph H. Huber, Judge.
Counsel for Plaintiff/Appellant: California Clean Energy Committee Law Offices of Eugene S. Wilson Eugene S. Wilson.
Counsel for Defendant/Respondent: City of San Jose Office of the City Attorney Richard Doyle, City Attorney Nora Frimann, Assistant City Attorney Margo Laskowska, Senior Deputy City Attorney.
Appellant California Clean Energy Committee (CCEC) appeals from a trial court’s judgment in favor of respondent City of San Jose (City). CCEC filed a petition for writ of mandate challenging City’s certification and approval of an environmental impact report (EIR) analyzing the potential environmental effects of a proposed update to City’s general plan, titled “Envision San Jose 2040 General Plan” (hereafter Envision San Jose), prepared pursuant to the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.). The trial court granted summary judgment in City’s favor, after finding that CCEC failed to exhaust its administrative remedies, as no administrative appeal was filed from City’s planning commission’s certification of the final EIR.
For the reasons set forth below, we find that the city council improperly delegated CEQA certification duties to the planning commission, and conclude CCEC adequately exhausted its administrative remedies. Accordingly, we reverse the judgment.
Factual and Procedural Background
City’s Approval of the Envision San Jose Plan
City made the EIR for the Envision San Jose plan available for public review on June 17, 2011. The Envision San Jose plan is a comprehensive update of City’s “Future San Jose 2020 General Plan, ” adopted by the city council in 1994. As described by City, Envision San Jose is a “long-term plan that describes the amount, type and phasing of development needed to achieve the City’s social, economic, and environmental goals. [Envision San Jose] is the policy framework for decision making on both private development projects and City capital expenditures.” An EIR was prepared pursuant to CEQA, since the plan would have potentially significant environmental impacts on land use, transportation, noise, air quality, biological resources, aesthetics, population and housing growth, and greenhouse gas emissions. The public comment period on the EIR extended from June 17, 2011, to August 1, 2011.
On July 28, 2011, CCEC submitted a written comment letter in response to the draft EIR, criticizing the project and the draft EIR’s analysis with regard to certain environmental impacts, and also arguing that the draft EIR should be recirculated. The planning commission held a public hearing on the Envision San Jose final EIR on September 28, 2011. The draft EIR, along with a first amendment to the draft EIR, constituted the final EIR for the project. Notably, the notice of the public hearing prepared by the planning commission stated that the commission’s “action on rezoning, prezonings, General Plan Amendments and Code Amendments is only advisory to the City Council. The City Council will hold public hearings on these items.” Nonetheless, the action report from the meeting indicates that the commission members certified the final EIR for the Envision San Jose project as complete and in compliance with CEQA, and that the commission members further recommended approval of the project. The commission then issued resolution No. 11-059, where it declared the final EIR was completed in compliance with CEQA, that the final EIR reflected the independent judgment and analysis of City, and that the copies of the final EIR would be delivered to the decisionmaking body for the project.
CCEC then submitted a letter to City’s department of planning, building and code enforcement on October 31, 2011. The one-page letter included a request that the commission include in its administrative record a study prepared by StrongTowns.org, and included an encouragement that City reconsider the proposals made in the Envision San Jose plan. No appeal from the planning commission’s certification of the final EIR was filed, and the letter did not point to any specific deficiencies in the final EIR or the certification process.
The city council convened on November 1, 2011, and conducted a public hearing on the Envision San Jose plan. The city council’s minutes indicated it received the memorandum from the director of the department of planning, building and code enforcement transmitting the recommendations made by the planning commission. Public comments were made, and after a closed discussion, the city council approved the Envision San Jose plan and adopted resolution No. 76041.
Resolution No. 76041 in part stated that “prior to the adoption of this Resolution, the Planning Commission of the City of San Jose certified the [final EIR] prepared for the 2040 General Plan (also sometimes referred to herein as the ‘Project’) and found the [final EIR] was completed in accordance with the requirements of CEQA” and that “no appeal of the Planning Commission’s certification of the [final EIR] was filed with CITY as provided for under Title 21 of the San Jose Municipal Code.” In the resolution, the city council then certified the final EIR as in compliance with CEQA, and made the findings that it had independently reviewed and analyzed the final EIR prior to acting upon and approving the Envision San Jose plan. The resolution stated that the city council had “independently reviewed and analyzed” the final EIR and considered the comments and information contained therein, including the written and oral comments received at the public hearings on the final EIR. The city council issued resolution No. 76042 adopting the plan the same day. The minutes from the city council’s public hearing do not reflect that representatives from CCEC were present at the public hearing.
The Petition for Writ of Mandate
CCEC filed a petition for writ of mandate in the trial court on November 4, 2011, arguing that the approved final EIR fell below the standards set forth in CEQA, and that the EIR should have been recirculated as it contained significant changes from the draft EIR. City filed a motion for summary judgment on the basis that CCEC had failed to exhaust its administrative remedies as no one appealed the planning commission’s certification of the final EIR. After a hearing, the trial court issued an order on July 17, 2012, granting City’s motion for summary judgment. Judgment was entered in City’s favor on August 18, 2012. CCEC appealed.
Standard of Review
We review the trial court’s grant of summary judgment under a de novo standard of review. (Monticello Ins. Co. v. Essex Ins. Co. (2008) 162 Cal.App.4th 1376, 1385.) Summary judgment is granted if all the moving papers show there is no triable issue of any material facts, and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) Defendants are entitled to summary judgment if a necessary element of plaintiff’s complaint cannot be established, or if there is a complete defense to the plaintiff’s cause of action. (Id. subd. (o)(2).) In reviewing a grant of summary judgment in favor of the defendant, as in this situation, we must review the entire record de novo and determine whether the defendant “ ‘conclusively negated a necessary element of the plaintiff’s case or demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial.’ ” (WYDA Associates v. Merner (1996) 42 Cal.App.4th 1702, 1709.)
We further apply a de novo standard of review to the question of whether the doctrine of exhaustion of administrative remedies applies in this case. (Citizens for Open Government v. City of Lodi (2006) 144 Cal.App.4th 865, 873 (Citizens for Open Government).)
The trial court never reached the merits of CCEC’s petition for writ of mandate, as it granted summary judgment on the ground that CCEC failed to exhaust its administrative remedies as required by Public Resources Code section 21177. Accordingly, on appeal CCEC argues the trial court erred on two grounds: (1) the exhaustion doctrine was satisfied because the city council, acting as the lead agency with the ultimate responsibility to approve or disapprove the final EIR and project, certified the final EIR with knowledge of CCEC’s objections, and (2) the planning commission’s certification of the final EIR was unlawful because the San Jose City Charter permits the planning commission only to make recommendations.
We address CCEC’s contentions in turn. First we address the lawfulness of the planning commission’s certification of the EIR, because if the EIR was not lawfully certified by the planning commission then no administrative appeal need be taken to exhaust administrative remedies. We conclude that the EIR was not properly certified by the planning commission, as the planning commission could not be delegated the duty to certify a final EIR given that it is not a decisionmaking body with respect to the Envision San Jose project. Second, we address CCEC’s argument that it exhausted its administrative remedies by filing its comment letters with the planning commission. We conclude that CCEC exhausted its administrative remedies with respect to the challenges ...