Filed 12/7/16; pub. order 12/16/16 (see end of opn.)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
SAN DIEGANS FOR OPEN D069922
GOVERNMENT et al.,
Plaintiffs and Appellants,
(Super. Ct. No. 37-2014-000146585-
v. CU-TT-CTL)
CITY OF SAN DIEGO,
Defendant and Respondent;
SUNROAD ENTERPRISES et al.,
Real Parties in Interest and
Respondents.
APPEAL from a judgment of the Superior Court of San Diego County, Judith F.
Hayes, Judge. Affirmed.
Briggs Law Corporation, Cory J. Briggs, Anthony N. Kim and Kelly E. Mourning
for Plaintiffs and Appellants.
Jan L. Goldsmith, City Attorney, and Glenn T. Spitzer, Deputy City Attorney, for
Defendant and Respondent.
Richards, Watson & Gershon, Steven H. Kaufmann and Ginetta L. Giovinco for
Real Parties in Interest and Respondents.
This California Environmental Quality Act (CEQA) (Pub. Resources Code,
§ 21000 et seq.)1 case involves a development by Sunroad Enterprises and Sunroad
Centrum Partners L.P. (together, Sunroad) of an office, residential, and retail project in
the Kearny Mesa area of San Diego. Since 1997 the City of San Diego (the City) Council
has approved the area for development under a master plan and over the ensuing years
has thrice assessed the project for environmental impacts as required by CEQA. In 2012
Sunroad obtained a permit from the City to begin certain phases of residential
development, including constructing several multilevel buildings over parking and
ground level retail space.
By the next year, Sunroad modified its design plans, ostensibly to meet real estate
market demands, and sought the City's approval of the modified plans through a process
known as substantial conformance review (SCR). The City's staff found that the
modified plans substantially conformed with the conditions and requirements of the
previously issued development permit and there was no need for further environmental
impact documentation under CEQA. San Diegans for Open Government and CREED-21
(together, plaintiffs) appealed the staff's decision to the City Planning Commission
(Planning Commission), which is comprised of members appointed by the City Council.
Following a public hearing, the Planning Commission voted to uphold the SCR decision.
1 Further statutory references are to the Public Resources Code unless stated
otherwise.
2
The City denied plaintiffs' appeal to the City Council, which is comprised of elected
officials.
Plaintiffs argue they are entitled to appeal the SCR decision to the City Council
under CEQA and the San Diego Municipal Code (SDMC). We disagree and affirm the
judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The City Council Assesses the Project's Environmental Impacts Under CEQA
In 1997 the City Council approved a master plan (Master Plan) and related
agreements and permits to allow the development of a high-density, mixed-use retail,
commercial, and industrial business park on 242 acres centrally located in the Kearny
Mesa area. As part of the review process for the Master Plan, the City Council certified a
final, program environmental impact report (EIR). The EIR recites its preparation "in
accordance with state CEQA Guidelines Section 15168"2 and its intent "to provide a
comprehensive single environmental document that will allow the City of San Diego, as
the lead agency, to carry out the entire project." The EIR contemplates subsequent
actions by the City to "implement specific development plans" without additional
environmental documentation "unless as otherwise required by [section] 21166 and state
CEQA Guidelines Section 15160 et seq."
2 All references to CEQA Guidelines refer to title 14 of the California Code of
Regulations.
3
In 2000 the City Council amended the original industrial/commercial development
permit to include residential development—up to almost 1,000 dwelling units—on a
portion of the site. The City adopted an addendum to the EIR (Addendum), which
discussed the proposed residential development and concluded there were no new
significant environmental impacts. In 2002 the City Council amended its progress guide
and general plan to increase the maximum amount of residential development allowed in
the Master Plan area to 1,568 units and adopted a mitigated negative declaration (MND),
which found that, with mitigation measures described in the document, the additional
residential units would not have a significant environmental effect.
Sunroad Obtains Permission to Begin Residential Construction
In May 2012 the City adopted a resolution allowing Sunroad to build several
hundred of the residential units in the Master Plan area, remove a temporary parking lot,
construct three buildings over several levels of parking, develop three recreation centers,
and create ground floor retail space (the Project). The resolution notes the Project is
subject to an environmental mitigation monitoring and reporting program (MMRP) and
mitigation conditions contained in the EIR, Addendum, and MND. The City also issued
the planned development permit (PDP) for the Project. The PDP contains dozens of
conditions and requirements, including those relating to the environment, affordable
housing, engineering, landscaping, parking, design features, parks, geology, and public
utilities. The PDP states that any proposed changes in parking would require an "SCR
process" and incorporates by reference the MMRP requirements of the EIR, Addendum,
and MND.
4
Substantial Conformance Review and Administrative Appeal
In November 2013 Sunroad applied to the City for an SCR of proposed design
changes to the approved Project. Principally citing changes in the real estate market,
Sunroad's proposed modifications included the addition of a podium level pedestrian
walkway/bridge to connect the deck and pool areas of two residential buildings, the
elimination of one level of parking originally requested by a tenant who would no longer
be leasing the adjacent office space, a reduction of bicycle spaces to the number required
by the SDMC, and an increase in building height from 83 feet to 88 feet. Although the
proposal included a change in the unit mix (e.g., less studios and more three-bedroom
units), the total number of units and stories above ground would remain unchanged.
According to the City's publicly available information bulletin, the "goal of [SCR]
is to determine if the proposed project is consistent and in conformance with a previously
approved project." City staff from multiple departments (i.e., planning, transportation,
landscaping, engineering) proceeded to evaluate Sunroad's proposed changes over several
rounds of review. The staff also reviewed the Project revisions for conformance with
existing environmental mitigation conditions. Further, reviewers noted the Kearny Mesa
Community Planning Group's unanimous approval of the modifications. On January 30,
2014, the City's development services department issued a notice of decision approving
the Project revisions (the SCR decision) and directing any appeals to the Planning
Commission.
5
Plaintiffs timely appealed the SCR decision to the Planning Commission.3
Plaintiffs disagreed the design changes were minor and argued the SCR process was not
appropriate for the contemplated changes. In a report to the Planning Commission, City
staff explained the parking to be removed would have no impact on the traffic circulation
and the addition of the pedestrian bridge would potentially decrease pedestrian/vehicle
conflicts at street level. Per the staff's calculations, the automobile spaces provided by
the revised plans exceeded the minimum requirements under the SDMC. In addition, the
staff showed the revised plans would still provide the required number of bicycle spaces
under the SDMC and the Federal Aviation Administration issued a "no hazard" letter
with respect to the slightly increased building height.
As part of its report to the Planning Commission, City staff also explained the
revisions are subject to existing environmental impact mitigation measures. The staff
concluded that the "revisions are minor in scope given the size of the development" and
are "within the guidelines for the review of SCRs . . . ." The City's staff prepared a
separate memorandum regarding the Project revisions under CEQA, concluding the
Project was "consistent with the previously certified" EIR, Addendum, and MND, and
the Project "would not result in new impacts or changed circumstances that would require
a new environmental document." As a result, the "Development Services Department did
not find the need to prepare a subsequent or supplemental environmental document . . . ."
3 Plaintiffs simultaneously attempted to appeal the SCR decision to the City
Council, which was not processed. The City informed plaintiffs, "[T]here are no City
appeals available for a determination that a project is within the scope of a previously-
certified environmental document."
6
On April 10, 2014, the Planning Commission held a noticed public hearing at
which plaintiffs presented their arguments. At the conclusion of the hearing, the
Planning Commission voted to deny the appeal and uphold the SCR decision. Plaintiffs
attempted to appeal the SCR decision to the City Council. In refusing to process the
appeal, the City explained, "a determination that subsequent environmental review of a
project is not required" is not appealable to the City Council. The City cited CEQA
Guidelines section 15162 and SDMC section 113.0103.
Superior Court Action
Thereafter, plaintiffs filed a verified complaint for declaratory and injunctive relief
and a petition for writ of mandate under CEQA in superior court. At trial, plaintiffs
argued they were entitled to an administrative appeal to the City Council because (1) such
an appeal was required under relevant statutes, and (2) the decision to approve the
modified Project was discretionary. After considering the parties' briefs and oral
arguments, the trial court denied plaintiffs' petition for writ of mandate and entered
judgment in defendants' favor on the "single[] legal issue" of whether plaintiffs are
entitled to an administrative appeal before the City Council. In reaching its decision, the
court did not consider any evidence outside of the administrative record. This appeal
followed.
7
DISCUSSION4
I. LEGAL PRINCIPLES
A. Standard of Review
We determine de novo whether an agency has complied with CEQA's legal
requirements. (Ebetts Pass Forest Watch v. California Dept. of Forestry & Fire
Protection (2008) 43 Cal.4th 936, 944; San Diego Navy Broadway Complex Coalition v.
City of San Diego (2010) 185 Cal.App.4th 924, 932 (San Diego Navy).)
The CEQA Guidelines, which implement CEQA, are authorized by section 21083
and found in title 14 of the California Code of Regulations, section 15000 et seq. "In
interpreting CEQA, we accord the Guidelines great weight except where they are clearly
unauthorized or erroneous." (Neighbors for Smart Rail v. Exposition Metro Line
Construction Authority (2013) 57 Cal.4th 439, 448, fn. 4.)
B. CEQA and Stages of Review Generally
In general, "CEQA compels government first to identify the environmental effects
of projects, and then to mitigate those adverse effects through the imposition of feasible
mitigation measures or through the selection of feasible alternatives. It permits
government agencies to approve projects that have an environmentally deleterious effect,
but also requires them to justify those choices in light of specific social or economic
4 We deny plaintiffs' request for judicial notice filed on May 20, 2016, which
attaches a legal memorandum and report from a different case. The documents attached
to the request are not part of the administrative record in this case and are not relevant to
resolving the legal questions presented on appeal. (Evid. Code, §§ 350, 452, subd. (c),
459; Western States Petroleum Association v. Superior Court (1995) 9 Cal.4th 559, 573,
fn. 4; RiverWatch v. Olivenhain Municipal Water Dist. (2009) 170 Cal.App.4th 1186.)
8
conditions. (§ 21002.)" (Sierra Club v. State Bd. of Forestry (1994) 7 Cal.4th 1215,
1233.)
CEQA establishes "a three-tier process to ensure that public agencies inform their
decisions with environmental considerations. [Citation.] The first tier is jurisdictional,
requiring that an agency conduct a preliminary review to determine whether an activity is
subject to CEQA." (Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007)
41 Cal.4th 372, 380 (Muzzy Ranch).) The second tier concerns exemptions from CEQA
review, and the third tier applies if the agency determines an aspect of the project may
cause a significant effect on the environment. (Id. at pp. 380-381.) If the third tier
applies, "the agency must ensure that a full environmental impact report is prepared on
the proposed project." (Ibid.)
"The Legislature has made clear that an EIR is 'an informational document' and
that '[t]he purpose of an environmental impact report is to provide public agencies and
the public in general with detailed information about the effect which a proposed project
is likely to have on the environment; to list ways in which the significant effects of such a
project might be minimized; and to indicate alternatives to such a project.' " (Laurel
Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376,
390-391, fn. omitted.)
"After an initial EIR is certified, CEQA establishes a presumption against
additional environmental review. An agency has jurisdiction to prepare a subsequent or
supplemental EIR only if the agency grants a 'discretionary' approval on the project
([CEQA] Guidelines, § 15162, subd. (c)), and certain statutorily enumerated new
9
circumstances occur (§ 21166; see [CEQA] Guidelines, §§ 15162, subd. (a), 15163)."
(San Diego Navy, supra, 185 Cal.App.4th at p. 928, fn. omitted.)
"The rationale for limiting the circumstances under which a supplemental or
subsequent EIR may be prepared is 'precisely because in-depth review has already
occurred, the time for challenging the sufficiency of the original EIR has long since
expired (§ 21167, subd. (c)), and the question is whether circumstances have changed
enough to justify repeating a substantial portion of the process.' " (Mani Brothers Real
Estate Group v. City of Los Angeles (2007) 153 Cal.App.4th 1385, 1398.)
II. PLAINTIFFS ARE NOT ENTITLED TO APPEAL THE SCR DECISION
TO THE CITY COUNCIL
The sole issue on appeal is whether plaintiffs are entitled to an administrative
appeal of the SCR decision to the City Council. We conclude they are not.
A. Public Resources Code Section 21151, Subdivision (c) Does Not Apply
Plaintiffs principally rely on section 21151, subdivision (c) to support their
position. Subdivisions (a) and (b) of section 21151 require local agencies to prepare
environmental impact reports on any project which may have a significant effect on the
environment. Subdivision (c) of the same section provides as follows: "If a nonelected
decisionmaking body of a local lead agency certifies an environmental impact report,
approves a negative declaration or mitigated negative declaration, or determines that a
project is not subject to this division, that certification, approval, or determination may be
appealed to the agency's elected decisionmaking body, if any." (§ 21151, subd. (c).) In
this case, the City was the local lead agency.
10
Assuming the City staff and/or the Planning Commission were nonelected
decisionmaking bodies for purposes of section 21151, subdivision (c), we conclude
neither the staff nor the Planning Commission took actions during the SCR process that
would trigger an appeal to the City Council, the elected decisionmaking body. It is
undisputed the staff and Planning Commission did not certify an environmental impact
report or approve a negative declaration or mitigated negative declaration. (See §§ 21061
[environmental impact report], 21064 [negative declaration], 21064.5 [mitigated negative
declaration].) Plaintiffs contend the SCR decision was a determination the Project "is not
subject to [CEQA]." (§ 21151, subd. (c).) However, according to the CEQA Guidelines,
a public agency determines an activity is not subject to CEQA during the preliminary
review of an application for a permit or land use, prior to an initial study and EIR
preparation. (CEQA Guidelines, § 15060; Muzzy Ranch, supra, 41 Cal.4th at pp. 380-
381.) Furthermore, "[a]n activity is not subject to CEQA if: [¶] (1) The activity does not
involve the exercise of discretionary powers by a public agency; [¶] (2) The activity will
not result in a direct or reasonably foreseeable indirect physical change in the
environment; or [¶] (3) The activity is not a project as defined in Section 15378." (CEQA
Guidelines, § 15060, subds. (c)(1)-(3).)
Applying the CEQA Guidelines, neither the City staff nor the Planning
Commission determined the Project is "not subject to CEQA" or otherwise exempt from
CEQA. (CEQA Guidelines, §§ 15060, subds. (c)(1)-(3), 15061.) Indeed, the City
Council already determined the entire development approved under the Master Plan is
subject to CEQA and significantly affects the environment in certain respects. Based on
11
our review of the record, the SCR decision did nothing to alter the City Council's prior
determinations and, rather, confirmed the Project remains subject to the mitigation
measures contained in the EIR, Addendum, and MND. Section 21151, subdivision (c)
does not apply under the circumstances.
To support their position, plaintiffs cite San Diego Navy, supra, 185 Cal.App.4th
at pages 929-930, in which the City Council heard an appeal of a decision not to require
further environmental review of a redevelopment project. However, the San Diego Navy
court merely recited the undisputed procedural history and did not address the issue of
whether the City Council was required to hear the appeal under section 21151. (San
Diego Navy, at pp. 929-935.) Accordingly, San Diego Navy does not support that
plaintiffs were entitled to a City Council appeal under section 21151, subdivision (c).
Plaintiffs separately argue they were entitled to an administrative appeal to the
City Council because the SCR decision was discretionary and the Project requires further
environmental review.5 The City and Sunroad contend that plaintiffs' characterization of
the decision as discretionary as opposed to ministerial does not establish a right to further
environmental review.
We conclude the discretionary or ministerial nature of the SCR decision is
tangential to whether plaintiffs are entitled to a City Council appeal. As discussed ante,
neither the City staff nor the Planning Commission determined the Project was not
5 Plaintiffs' brief does not describe what kind of further environmental review is
required; they assert merely that because the Project is "subject to CEQA review," they
are entitled to a City Council appeal.
12
subject to CEQA. The conclusion an activity is "discretionary" or subject to CEQA does
not independently trigger a right to a City Council appeal or require the preparation of a
subsequent environmental impact report—other conditions must be met. (§§ 21151,
subd. (c), 21166; San Diego Navy, supra, 185 Cal.App.4th at p. 928.) Thus, plaintiffs
have failed to establish they are entitled to appeal the SCR decision to the City Council
under any provisions of CEQA.
B. San Diego Municipal Code Section 112.0520 Does Not Apply
Plaintiffs also point to SDMC section 112.0520, subdivision (a), to support their
claimed right to administratively appeal the SCR decision to the City Council. The
SDMC provides that "any person may appeal an environmental determination" not made
by the City Council to the City Council. (SDMC, §§ 112.0520 (a) & (d).) Environmental
determination is defined as "a decision by any non-elected City decision maker, to certify
an environmental impact report, adopt a negative declaration or mitigated negative
declaration, or to determine that a project is exempt from the California Environmental
Quality Act (CEQA), under State CEQA Guidelines Section 15061[, subdivision] (b)."
(SDMC, § 113.0103.)
For reasons we have discussed, the SCR decision by the City staff and upheld by
the Planning Commission was not an "environmental determination" as defined in the
SDMC. The City found that Sunroad's modified design plans conformed to previously
approved development permit conditions and requirements, including mitigation
measures required under CEQA. The City did not find the Project exempt from CEQA.
13
(See CEQA Guidelines, § 15061, subd. (b).) Plaintiffs are not entitled to appeal the SCR
decision to the City Council under the SDMC.
DISPOSITION
The judgment is affirmed. The City and Sunroad shall recover their costs on
appeal.
NARES, J.
WE CONCUR:
McCONNELL, P.J.
HUFFMAN, J.
14
Filed 12/16/16
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
SAN DIEGANS FOR OPEN D069922
GOVERNMENT et al.,
Plaintiffs and Appellants,
(Super. Ct. No. 37-2014-000146585-
v. CU-TT-CTL)
CITY OF SAN DIEGO,
Defendant and Respondent; ORDER CERTIFYING OPINION
FOR PUBLICATION
SUNROAD ENTERPRISES et al.,
Real Parties in Interest and
Respondents.
THE COURT:
The opinion in this case filed December 7, 2016, was not certified for publication.
It appearing the opinion meets the standards for publication specified in California Rules
of Court, rule 8.1105(c), the request pursuant to California Rules of Court, rule 8.1120(a)
for publication is GRANTED.
15
IT IS HEREBY CERTIFIED that the opinion meets the standards for publication
specified in California Rules of Court, rule 8.1105(c); and ORDERED that the words
"Not to Be Published in the Official Reports" appearing on page 1 of said opinion be
deleted and the opinion herein be published in the Official Reports.
McCONNELL, P. J.
Copies to: All parties
16