The Supreme Court yesterday denied a petition for review and request for depublication of McCorkle Eastside Neighborhood Group v. City of St. Helena (2018) 31 Cal.App.5th 80 (see our previous post here). This affirms the First District Court of Appeal’s holding that discretionary design review of an otherwise permitted use is not subject to the California Environmental Quality Act (CEQA).

In practice, most design review and site plan approvals are similar to St. Helena’s Design Review Ordinance at issue in McCorkle. In general, these ordinances direct the agency to consider what a building will look like, but not the use of that building, which has already been determined by the zoning code. The ordinances provide for consideration of the general form, spatial relationships and appearance of a project in the context of the surrounding environment. This is done by evaluating the scale, orientation, bulk, mass, materials and colors, access to the site, and consistency with the General Plan. There is no authority to consider issues related to environmental impacts of the use, which would have already been studied during programmatic planning for the provision of the allowable use. Because each jurisdiction’s code is different, it is important to look at the scope of discretion granted to the agency in its code prior to applying McCorkle to a design review or site plan approval.

Prior to the filings before the Supreme Court, practitioners and agencies around the state had started to apply McCorkle to similar discretionary design review and site plan approvals where the code did not allow the agency to alter the project or require mitigation to reduce environmental impacts. This practice was put on hold pending yesterday’s decision by the Supreme Court. Going forward, agencies can and should follow McCorkle for approval of projects where their code provides for similarly limited discretion. 

Finally, the Supreme Court denied review and depublication after it was made explicitly aware of an alleged split in authority between McCorkle and Georgetown Preservation Society v. County of El Dorado (2018) 30 Cal.App.5th 358, which was decided one day before McCorkle. In Georgetown, the agency used a mitigated negative declaration to review the discretionary approvals for merger of three downtown lots in a “quaint” Gold-Rush-era hamlet and for construction of a chain discount store. The Supreme Court let the First District’s opinion in McCorkle stand, and going forward it should not be interpreted as diverging from Georgetown because Georgetown did not address the scope of discretion or applicability of CEQA.