In a published opinion filed June 23, 2023, the Fourth District Court of Appeal (Div. 1) affirmed a judgment granting a writ of mandate directing the City of San Diego (City) to set aside its approvals of an ordinance submitting to the voters a ballot measure that would exclude the Midway-Pacific Highway Community Plan Area from the City’s 30-foot height limit on construction of buildings in the Coastal Zone.  The Court held the City could not rely on a 2018 program EIR (PEIR) certified for an update of the area’s community plan as CEQA compliance because the PEIR did not contemplate or analyze the environmental impacts of removing the height limit and substantial evidence supported a fair argument that its removal may have significant unexamined impacts on views.  Save Our Access v. City of San Diego (2023) ___ Cal.App.5th ___.

Factual and Procedural Background

Since 1972, the City has had in effect a voter-adopted 30-foot height limit on building construction in its Coastal Zone, which extends for its entire north-south length and covers a swath of land and sea between Interstate Highway 5 and the seaward limit of the City’s jurisdiction, excluding its downtown.  The stated purposes of that initiative were to prevent congestion and preserve beach access and the nature of the City’s coastal communities.

Over the intervening decades, the City’s voters have amended the Coastal Zone height-limit ordinance several times, but typically to allow specific projects, such as Sea World enhancements or the International Gateway of the America’s project.  The City’s Midway-Pacific Highway Community is located in a relatively flat 1,324-acre area north of downtown; it includes the linear Pacific Highway Corridor, the Marine Corps Recruit Depot, the San Diego International Sports Arena, and other commercial, industrial and residential development.  In 2008, the City began a lengthy process to update the area’s Community Plan.  The scoping statement released in 2015 for the PEIR prepared for the Community Plan Update (CPU) stated that the 30-foot Coastal Zone height limit applied to the entire community “to protect coastal views.”  The City ultimately adopted the CPU and certified the PEIR in 2018; the final CPU stated:  “[The] Coastal Height Limit Overlay Zone limits the height of new buildings to protect coastal views.” 

In early 2020, certain City Council members began exploring a possible City-sponsored ballot measure to remove the coastal height limit from the entire Midway-Pacific Highway Community Plan Area.  Supporters of the proposal maintained that the area lacked residential ocean view corridors, that the height limit was arbitrary as applied to it, and that economic and other benefits would accrue from needed housing and other development that would occur through reverting to the area’s base zone height limits, which ranged from 30 to 100 feet.  Others, including petitioner Save Our Access, disagreed, claiming views from homes in Mission Hills, Point Loma, Linda Vista and Claremont that overlook the Midway/Sports Arena would be adversely impacted by removal of the height limit, which would lead to development with significant environmental impacts on aesthetics, land use, traffic, human health, air and water quality, and GHG emissions.  Save Our Access pointed out that the 2018 PEIR the City intended to rely on as CEQA coverage – on the basis that it analyzed density under existing base zoning without regard to the 30-foot height limit – did not address removal of the height limit at all and further stated the CPU would not substantially alter or block public views.

Ultimately, the City determined that no subsequent environmental document was required under Public Resources Code § 21166 and CEQA Guidelines § 15162 because the ordinance submitting removal of the height limit to the voters would not result in new or substantially more severe significant impacts than those analyzed in the CPU PEIR.  Save Our Access then sued and the trial court granted its writ petition, concluding the PEIR’s project description could not be read to include adoption of an ordinance approving a ballot measure to remove the Coastal Zone height limit as a “later activity” within its scope, and finding that substantial evidence supported a “fair argument” that approval of the ballot measure may have significant impacts on scenic vistas or views not examined in the PEIR.  The City appealed.

The Court of Appeal’s Opinion

In affirming, the Court of Appeal reviewed CEQA’s rules for the use of program EIRs, “which ‘may be prepared on a series of actions that can be characterized as one large project and are related either:  (1) Geographically, (2) As logical parts in the chain of contemplated actions, (3) In connection with issuance of rules, regulations, plans, or other general criteria to govern the conduct of a continuing program, or (4) As individual activities carried out under the same authorizing statutory or regulatory authority and having generally similar environmental effects which can be mitigated in similar ways.’”  (Citing Citizens for Responsible Equitable Development v. City of San Diego Redevelopment Agency (2005) 134 Cal.App.4th 598, 605, quoting CEQA Guidelines, § 15168(a).)  If a later activity would have effects not examined in the program EIR, a new initial study should be prepared leading to either an EIR or negative declaration; however, if an agency finds no subsequent EIR is required under Guidelines § 15162, it can find based on substantial evidence that a later activity is within the program EIR’s scope and that no new environmental document is required.  Relevant factors in this analysis include the later activity’s consistency “with the type of allowable land use, overall planned density and building intensity, geographic area analyzed for environmental impacts, and covered infrastructure, as described in the program EIR.” (Quoting Guidelines, § 15168(c)(2).)

Per the Court, if a later activity is not the same as or “within the scope” of the project described in the program EIR, judicial review is not governed by Public Resources Code § 21166’s deferential substantial evidence standard, but by the “more exacting” and “searching” standard governing review of subsequent projects following tiered EIRs under Public Resources Code § 21094.  (Citing Sierra Club v. County of Sonoma (1992) 6 Cal.App.4th 1307, 1317, 1321; Friends of College of San Mateo Gardens v. San Mateo County Community College Dist. (2016) 1 Cal.5th 937, 960; Friends of Mammoth v. Town of Mammoth Lakes Redevelopment Agency (2000) 82 Cal.App.4th 511, 528.)  A subsequent project that is not consistent with the program or plan is treated as a new project and must be analyzed in a new project or tiered EIR if it may have a significant effect on the environment.  (Citing San Mateo Gardens, 1 Cal.5th at 960.)

Here, the Court held there was no substantial evidence supporting the City’s determination that the ballot measure was a later activity “within the scope” of the 2018 PEIR.  To the contrary, the PEIR’s scoping statement stated that the 30-foot Coastal Zone height limit applied to the entire Community Plan area; the final CPU’s land use map, designations, and tables referenced only densities and not building heights, and the CPU was silent on increasing height limits; the PEIR’s project description did not mention removal of the 30-foot height limit; the PEIR assumed development “would take place within the constraints of the existing urban framework and development pattern” (which included the 30-foot height limit); and nothing in the PEIR considered any potential environmental effects of removing the height limit, and the PEIR instead presumed it would operate with existing land use policies to produce development of similar bulk and scale to what presently exists.  Further, the PEIR contained numerous pictorial renderings – reproduced by the Court in its opinion to underscore the point – visually demonstrating how maximum allowable densities could be achieved by buildings within the 30-foot height limit.

In sum, “removing the Coastal Zone [30-foot] height limit from the Midway-Pacific Highway Planning Area is a significant change that was not considered in the PEIR” and “[t]he administrative record supports a fair argument that [such] removal… may arguably have significant adverse effects on the environment that were not examined in the PEIR[,]” including potential environmental impacts on views, light and glare implications, and potential air quality issues associated with buildings over 30 feet.”

Conclusion and Implications

The result in this case appears to be correct:  removing a community-wide 30-foot height limit in an entire coastal zone community where views to and from the ocean are issues of major importance cannot be done in reliance on an EIR – program or otherwise – that implicitly and expressly assumes the limit applies and makes no mention of removing it.  The unanalyzed prospect of previously prohibited high-rises up to 100 feet in height being constructed under base zoning throughout such a community plainly requires preparation of an EIR (or other CEQA document) analyzing potentially significant aesthetic impacts to scenic and public views, light and glare impacts, and air circulation. 

It also seems apparent that the same result would be reached whether City’s action was analyzed as a change in the community plan “project” under the “substantial evidence” standard established by CEQA’s “subsequent review” rules (Pub. Resources Code, § 21166; Guidelines, § 15162) or the “more searching” standard of Public Resources Code § 21094, which applies the “fair argument” test to later activities found (based on substantial evidence) not to be “within the scope” of a prior program EIR.  However the analytical onion was sliced here, major revisions to the CPU PEIR would obviously have been needed to make it adequate for such a substantial change in applicable land use intensity regulations as was proposed in the City’s ballot measure; the City’s argument that complete removal of the height limit was “within the scope” of the CPU or the PEIR’s analysis because the PEIR “conservatively” calculated other types of environmental impacts based on maximum allowed densities (which were calculated while ignoring height limits for that purpose) was simply an untenable position on the record here.  The new project was not merely inconsistent with the CPU; it removed a fundamental community-wide land use intensity restriction that greatly mattered in this unique environmental setting and one which both the CPU and the PEIR’s analysis of the same had assumed would remain in place without giving the public any clue that a potential change in the venerable height limit was afoot. 

In addition to its instructive review of CEQA principles governing program EIRs and later activities allegedly within the program’s scope, this case serves as a good reminder that, while a citizen-generated initiative petition is not subject to CEQA, a popular vote can’t wash away CEQA deficiencies of a public-agency generated ballot measure, which requires full CEQA compliance before the agency approves an ordinance placing it on the ballot.  While it had no impact on and did not moot the decision here, the Court also observed in a footnote that the City has now prepared a second ballot measure and a supplemental EIR, which are (unsurprisingly) currently the subject of further litigation.  (That litigation, I would note, could foreseeably involve interesting CEQA issues of public versus private views; the need to analyze reasonably foreseeable development versus a worse-case scenario; and which vantage points and potential development scenarios must be studied to facilitate a sufficiently informed decision.) 

This case also illustrates one litigation battleground that will undoubtedly play out in other cities struggling to accommodate their state-mandated housing obligations by “building up” in appropriate areas while at the same time trying to avoid or mitigate the potential adverse impacts of desperately needed new housing construction on scenic views and community character.  Whether or not the City’s supplemental EIR on the height limit removal in its Midway-Pacific Highway Community Plan area is ultimately upheld, a citizen-generated petition could conceivably achieve the same goal without the hindrance of CEQA compliance if enough popular support for the measure existed.