January 5th, 2017

By: Chris Butcher

In San Diegans for Open Government v. City of San Diego, 2016 Cal. App. LEXIS 1095, the Fourth Appellate District rejected challenges to the City of San Diego’s approval of modifications to a previously-approved master plan for a high-density, mixed-used business park. Sunroad Enterprises and Sunroad Centrum Partners L.P. (“Sunroad”) proposed the project, located on 242 acres in the Kearny Mesa area of San Diego.

In 1997, the City approved a master plan for the development and certified an EIR. The applicant modified the project in 2000 and 2002, and the City adopted an addendum to the EIR and an MND, respectively. In 2012, Sunroad obtained a permit to begin certain phases of the master plan. In 2013, Sunroad again sought City approval for project modifications through the City process known as substantial conformance review (“SCR”). The modifications included the addition of a podium level pedestrian walkway connecting the deck and pool areas of two residential buildings, the elimination of one level of parking, a reduction in bicycle spaces, and an increase in building height, but did not change the total number of units or stories above ground.

After City staff determined these modifications were consistent with the previously-certified EIR, Addendum, and MND, plaintiffs appealed the staff’s decision to the Planning Commission, and the Planning Commission denied the appeal. Subsequently, plaintiffs attempted to appeal the decision to the City Council, but the City refused to process the appeal. Plaintiffs sued the City, arguing they were entitled to an administrative appeal.

The court rejected plaintiffs’ contention that the SCR decision constituted a determination that the project “is not subject to CEQA,” which may be appealed to the City Council under Public Resources Code section 21151, subdivision (c). The court explained that the SCR decision did nothing to alter the City’s prior determination that the project was subject CEQA. The court also rejected the argument that the project required further environmental review because the SCR decision was discretionary. The court held that the conclusion that an activity is discretionary does not independently require a subsequent EIR, unless other conditions are met. Finally, the court rejected plaintiffs’ argument that staff’s SCR determination was an “environmental determination,” which may be appealed to the City Council under the City’s code.

Key Point:  

When a city staff member makes a determination that modifications to a previously-approved project are consistent with the previously-certified EIR or MND, the lead agency’s elected decisionmaking body is not required to review an appeal of that decision under CEQA.