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California Court of Appeal Finds City Did Not Violate CEQA By Failing to Summarize Revisions to Previously Circulated Programmatic EIR In Recirculated Draft

California Court of Appeal Finds City Did Not Violate CEQA By Failing to Summarize Revisions to Previously Circulated Programmatic EIR In Recirculated Draft
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By Bridget McDonald

In the partially published opinion the Fourth District Court of Appeal held, for the first time, that the City of San Diego (City) did not violate California Environmental Quality Act (CEQA) Guidelines, § 15088.5(g), for failing to summarize revisions made to a project’s previously circulated programmatic draft Environmental Impact Report (EIR) in a subsequent recirculated draft EIR (DEIR). The court also held that the city council acted in a quasi-legislative capacity in certifying the final EIR (FEIR) and approving the project, thereby foreclosing petitioner’s procedural due process claim. [Save Civita Because Sudberry Won’t v. City of San Diego, 72 Cal.App.5th 957 (4th Dist. Dec. 16, 2021).]

Facts and Procedural Background

In October 2008, the City of San Diego approved the Civita project (Project)—a large, mixed-use development in the Mission Valley Community Plan (MVCP) area that would contain residences, public recreational spaces, open lands, and retail and office space. The Civita EIR analyzed the environmental impacts of a potential connection to a nearby roadway located in the nearby Serra Mesa Community Plan (SMCP) area. As part of its approval, the City Council adopted a resolution directing staff to analyze an amendment to the SMCP and General Plan to include the contemplated street connection.

In April 2016, the City issued a programmatic draft EIR (PDEIR), for the “Serra Mesa Community Plan [SMCP] Amendment Roadway Connection Project,” to analyze the adoption of the SMCP and General Plan amendments to reflect the proposed street connection. The proposed roadway contemplated would contain four lanes, together with a median, bicycle lanes, and pedestrian pathways, that would run in a north/south direction between existing roadways in the partially-built Civita mixed-use development. The Project Description chapter of the PDEIR stated that the proposed Project consisted of a “community plan amendment to the SMCP” to include certain street connections. The PDEIR made clear, though, that the action was only to amend the SMCP—not fund or construct the roadway connection—and therefore only analyzed impacts at a programmatic level.

In response to public comments received during the PDEIR review period, the City decided to analyze the roadway construction and amendments at a project-level. Thus, in March 2017, the City recirculated a project-level EIR (RE-DEIR), which explained that it would replace the PDEIR and any comments submitted thereon, and instead, analyze construction of the roadway and amendments to the SMCP at a project-level.

After releasing the RE-DEIR for public review, the City received public comments asserting the City failed to comply with CEQA Guidelines § 15088.5, subdivision (g). The comments requested that the City provide a list of material changes in Project design or study, along with an interlineated and strike-out version of the RE-DEIR. The City’s responses explained that the PDEIR had been so substantially changed and redrafted to reflect the new project-level analysis that a list of material changes and a strike-out version would be impractical and near illegible.

The City released the FEIR in August 2017 and held several public hearings thereon. In October 2017, the city council ultimately approved the Project, certified the FEIR, and adopted resolutions to amend the SMCP and General Plan to identify the contemplated roadway connection.

At the Trial Court

Save Civita filed a petition for writ of mandate in November 2017, alleging the City violated CEQA and the Planning and Zoning Law by illegally approving and adopting the Project. Save Civita subsequently filed a brief in support of its petition and complain, alleging, among other CEQA violations, that the City violated CEQA Guidelines § 15088.5, subdivision (g) by failing to summarize revisions made to the previously recirculated PDEIR. The brief also alleged that the City violated the public’s right to due process and a fair hearing because at least one city council member who publicly voiced his support for the Project decided he was going to approve the Project long before any evidence was presented to the city council. The trial court rejected Save Civita’s claims and denied the petition. Save Civita appealed.

The Court of Appeal’s Decision

In the first published portion of the opinion, the Fourth District held that the City did not violate CEQA Guidelines § 15088.5, subd. (g), in failing to summarize the changes from the PDEIR to the RE-DEIR. The court further concluded that, even assuming the City did violate subdivision (g), such error was not prejudicial because any failure to summarize did not deprive the public of a meaningful opportunity to discuss and critique the Project. The Court of Appeal also noted that, prior to this decision, no other opinion or case had interpreted and applied Guidelines § 15088.5, subd. (g).

In the second published portion of the opinion, the Court of Appeal held that the City Council, in certifying the FEIR and approving the Project, acted in a quasi-legislative capacity, and was thus not subject to the procedural due process requirements that apply to quasi-adjudicatory hearings.

City Did Not Violate CEQA Guidelines Section 15088.5, Subdivision (g)

CEQA Guidelines § 15088.5, subd. (a), requires lead agencies to recirculate an EIR when significant new information is added to the EIR after public release but before certification. “Information” under the section can include changes in the project or environmental setting, as well as additional data or other information. Subdivision (f) pertains to the manner by which a lead agency shall evaluate and respond to comments when an EIR is recirculated. Finally, subdivision (g) requires the lad agency to summarize the revisions made to a previously circulated DEIR. Because the City’s compliance with subdivision (g)’s “summarization requirement” constituted a question of law, the Court employed a de novo standard of review.

Save Civita claimed the City violated § 15088.5, subd. (g), because the RE-DEIR, nor attachment thereto, summarized the revisions made from the PDEIR. Save Civita asserted that:

. . .requiring members of the public to rifle through these two voluminous, technical documents to try and figure out the differences was an obstacle to informed discussion.

The City countered by explaining that it adequately summarized the changes to the PDEIR in the RE-DEIR to sufficiently apprise readers that the RE-DEIR was an entirely different level of analysis and revisions are throughout. The City also argued that, given the vigorous public comment period, Save Civita failed to establish it was prejudiced from an insufficiency in the RE-DEIR’s summary of changes.

In interpreting whether the City complied with subdivision (g), the Fourth District explained that the RE-DEIR included several chapters that summarized the changes to the PDEIR. When considered in conjunction with subdivision (a)—which requires recirculation of an EIR where significant new information is added, including project changes—the RE-DEIR’s “History of Project Changes” chapter apprised the public that, in the wake of the issuance of the PDEIR, the City had conducted further evaluation of the subsequent actions necessary to implement and construct the roadway. Subdivision (g) must also be interpreted in connection with subdivision (f), which requires that an agency inform the public that comments on a prior EIR will not receive a response when the EIR is so substantially revised that the entire document is recirculated. Here, the RE-DEIR alerted the public that due to the substantial changes made, comments on the PDEIR would not be considered.

Taken together, the Court of Appeal held:

. . .where a recirculated EIR states that it is replacing a prior EIR and the agency makes clear the overall nature of the changes (as the City did in this case), and states that prior comments will not receive responses, the agency may be said to have complied with the Guidelines requirement that it ‘summarize the revisions made to the previously circulated draft EIR.’ (§ 15088.5, subd. (g).)

The appellate court further reasoned that, even if it had concluded that the City failed to comply with subdivision (g), its failure to adhere to the “summarization requirement” was not prejudicial. The court was not persuaded by Save Civita’s claims that readers were forced to “leaf through thousands of pages,” which caused “readers to have the mistaken belief” that the two EIRs addressed the same project. With respect to the first consequence, the court explained that the need to review the entire RE-DEIR was driven by the wholesale and material nature of the changes made. As to the second consequence, no reasonable reader could have been misled to believe that the PDEIR and RE-DEIR contemplated the same project. The RE-DEIR expressly and repeatedly stated that it evaluated the amendment and roadway construction, whereas the PDEIR only evaluated the community plan amendment. Finally, the court rejected Save Civita’s claim that the City’s failure to provide a summary of revisions created an “obstacle to informed discussion.

Procedural Due Process Requirements Do Not Apply to Quasi-Legislative Actions

Save Civita claimed that the City’s certification of the FEIR and its approval of amendments to the SMCP and General Plan were quasi-adjudicatory decisions. As such, they contended the City violated the public procedural due process and fair hearing rights because a city council member who voted to approve the Project was:

. . .a cheerleader for the Project and decided he was going to approve the Project long before any evidence was presented to the Smart Growth & Land Use Committee or City Council.

Under a de novo standard of review, the appellate court considered whether the City acted in a quasi-adjudicatory or quasi-legislative capacity in certifying the FEIR, which would ultimately dictate whether procedural due process requirements were triggered. The court explained that longstanding precedent has established that procedural due process protections do not apply to quasi-legislative actions, but do apply when an agency has proceeded in a quasi-adjudicatory capacity. Under CEQA specifically, Public Resources Code § 21168 governs challenges to quasi-adjudicatory decisions, whereas § 21168.5 governs all other agency decisions. Pointing to the California Supreme Court’s decision in Western States Petroleum Assn. v. Superior Court, 9 Cal.4th 559, 566–567 (1995), the appellate court explained that a local agency’s certification of an EIR is a quasi-legislative act, unless the underlying action that the public agency analyzed in the EIR is quasi-adjudicative. To this end, the Supreme Court’s holding in Yost v. Thomas, 36 Cal.3d 561 (1984), squarely held that adoption of a Specific Plan is a legislative act.

Under this lens, the City’s approval of amendments to the SMCP and the City’s General Plan was a quasi-legislative act because it involved the adoption of rules of general application based on broad public policy.

To determine whether the City’s certification of the FEIR was quasi-legislative or quasi-adjudicative, the appellate court looked to the nature of the underlying actions analyzed in the FEIR: 1) the approval to build the road; and 2) the amendment to planning documents to show the proposed roadway. The court noted that precedent established that an agency’s decision to approve the building of the road is a quasi-legislative act, for doing so is a determination that requires consideration of the public welfare, rather than a determination on an individual’s rights. Here, the City’s approval of building the road was no different—the City assessed a broad spectrum of community costs and benefits that were not limited to the individual interests of nearby property owners. This act, coupled with the amendments to the planning documents, were thus quasi-legislative acts. In turn, the City’s act of certifying the FEIR constituted a quasi-legislative act that consequently foreclosed Save Civita’s procedural due process claim.

Conclusion and Implications

The Fourth District Court of Appeal’s opinion marks the first published decision to interpret and apply the “summarization requirement” under CEQA Guidelines § 15088.5, subdivision (g). Importantly, the court held that an agency complies with subdivision (g) if: (i) a recirculated EIR states that it is replacing a prior EIR; (ii) it makes clear the overall nature of the changes; and (iii) states that prior comments will not receive responses. The court also reiterated that the underlying nature of a proposed project dictates whether the agency’s certification of the related EIR is a quasi-legislative or quasi-adjudicative act. Where an underlying project only contemplates legislative acts, such as approving a roadway or amending a Specific Plan, the agency acts quasi-legislatively, and thus, does not trigger procedural due process requirements. The court’s opinion is available at: