In Tracy First v. City of Tracy, (— Cal.Rptr.3d —-, Cal.App. 3 Dist., August 27, 2009), a California Court of Appeal considered whether a city council was required to resubmit an environmental impact report (“EIR”) to the planning commission after the city council directed staff to make amendments to the EIR before certifying it. The Court of Appeal held that the city council was not required to resubmit the EIR to the planning commission for further review after it amended the EIR.
Property owners submitted an application to the City of Tracy (“City”) to change designation of property within City from industrial to commercial. No specific use was proposed for the property at the time of the application. City’s planning commission considered the application and recommended that City rezone the property. WinCo Foods subsequently submitted an application to build a grocery store in the southern part of the property. City prepared a draft EIR that covered a general plan amendment, a specific plan amendment, and the construction of the WinCo Foods grocery store. The draft EIR contemplated a division of the property into two parcels: the southern parcel where the grocery store would be built, and the northern parcel where there was no specific plan to build. The draft EIR did, however, consider many impacts of development in the northern parcel. After the public comment period came to a close, City prepared an EIR and submitted it to the planning commission.
The planning commission held a hearing at which City staff recommended certification of the EIR, approval of the amendments to the general and specific plan, and approval of a conditional use permit for construction of the grocery store. The planning commission received public comment and then approved the conditional use permit. The planning commission also recommended that the city council certify the EIR and amend the general and specific plans. Tracy First appealed the planning commission’s decision to approve the conditional use permit.
City held a hearing to consider the planning commission’s recommendations and Tracy First’s appeal. At the hearing, Tracy First presented several objections to the EIR. The city council decided to obtain further information on the environmental impacts before taking action and directed City staff to provide it with additional information. Approximately six months later, City issued an amendment to the EIR which included urban decay, traffic impacts, air quality impacts, and energy conservation. City circulated the amended EIR for public comment.
City held a public hearing on the issue of whether to certify the EIR. A representative for Tracy First commented at the hearing and submitted materials for the council to review. After the public comment period closed, the City Council voted to certify the EIR and approve the amendment to the specific plan and the conditional use permit.
Tracy First filed a petition for writ of mandate alleging that City was required to obtain the planning commission’s review of the amended EIR before the city council could certify the EIR. The trial court denied Tracy First’s petition.
The Court of Appeal affirmed the decision of the trial court. The court held “that the [California Environmental Quality Act] “CEQA” guidelines and the city’s municipal ordinances did not require the planning commission to review the EIR, as amended, and make a new recommendation to the city council before the city council could act.”
The CEQA Guidelines provide, “Where an advisory body such as a planning commission is required to make a recommendation on a project to the decisionmaking body, the advisory body shall also review and consider the EIR or negative declaration in draft or final form.” City’s municipal ordinances at the time relevant to this case designated its planning commission as an advisory body on matters of zoning and land use. The ordinances required the planning commission to review zoning decisions and then make recommendations to the city council before the city council could act.
The question before the Court of Appeal was whether City complied with the above-quoted CEQA Guideline when it approved the project based on the amended EIR even though the planning commission did not consider the amendments when it made its recommendation to the city council.
The amendments were made to the EIR because the city council determined it wanted more information that was not in the original EIR. The city council asked city staff to supply additional information. The additional information gathered led to changes being made to the EIR. However, the key here is that “[a]lthough there were several changes to the EIR, there was no change to the proposed project.”
The court emphasized that the city council never denied the application for the project. Tracy First argued that the city counsel granted its appeal and initially denied the project application. The court found that the city council merely continued consideration of the project instead of ruling on the application.
The court held that, after the EIR was amended, the city council was not required to remand the matter back to the planning commission “because (1) although the final EIR considered by the city council in approving the project may have been a different draft, it was not a different EIR, and (2) there is no express requirement that the project application be remanded to the planning commission when the City amends the EIR before it is certified by the city council and used in granting the project application.”
The CEQA Guidelines require the planning commission to consider an EIR in its draft or final form. Here, the planning commission considered a draft of the EIR ultimately used by the city council to grant the project application, so CEQA requirements were met.
“[T]here are statutes requiring remand to the planning commission when changes are made to proposed projects, there is no statute or guideline requiring the city council to remand the project application to the planning commission when amendments are made to the EIR but not to the project.” If a city council desires to make substantial changes to a project, it may be necessary for the city council to send the changes back to the planning commission to review the changes and make recommendations. The Government Code provides that before a city council acts on substantial zoning changes or general or specific plan changes, it must submit those changes to the planning commission. Here, however, there were no modifications to the project in terms of the specific plan amendment or the conditional use permit. The only modifications made were to the EIR, and there is no requirement that the planning commission review the amendments to the EIR.
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