In an opinion filed December 7, and later ordered published on December 16, 2016, the Fourth District Court of Appeal affirmed a judgment denying a writ petition on the “single legal issue” whether plaintiffs were entitled under Public Resources Code § 21151(c) (and a municipal code section with essentially the same content) to an appeal of a planning commission’s “substantial conformance review” (SCR) determination to the city council. (San Diegans for Open Government et al v. City of San Diego (Sunroad Enterprises et al, Real Parties in Interest) (4th Dist., Div. 1, 2016 ) __ Cal.App.5th__, 2016 WL ______.) The SCR decision found that changes in an already CEQA-reviewed and approved mixed-use development project were consistent with previous CEQA documents and did not require a new environmental document. Because such a determination was not one of the decisions expressly listed in Section 21151(c) as appealable of right to the lead agency’s elected decision making body, and there was no independent right to such an appeal order the City’s municipal code, the City properly refused to process plaintiffs’ attempted administrative appeal of the planning commission’s decision.

Background: The Kearny Mesa Area Master Plan Project, Its CEQA Review And Modifications Through The Years, And City’s SCR Process

The project was a high-density office/industrial business park/residential/retail development on 242 acres in the Kearny Mesa area, approved by master plan and related entitlements in 1997 pursuant to a certified final program EIR (FPEIR). The FPEIR contemplated subsequent actions by the City to implement specific development plans without additional environmental documentation except as required by CEQA’s subsequent review rules, i.e., Public Resources Code § 21166 and CEQA Guidelines §§ 15160 et seq. In 2000, the City Council amended the project’s industrial/commercial component to include nearly 1,000 residential units on a portion of the site, adopting an EIR Addendum which concluded this charge had no new significant environmental impacts. In 2002, the City Council again increased the master plan’s allowed residential development, adopting a mitigated negative declaration (MND) finding that with required mitigation the added units would have no significant environmental effect.

In 2012, the City authorized certain construction in the master plan area subject to the existing MMRP and mitigation conditions contained in the prior CEQA documents. It issued a planned development permit (PDP) with numerous conditions, stating any proposed parking changes would require a SCR process, and incorporating all previously required mitigation.

In late 2013, due to real estate market changes and the loss of a certain tenant, the developer applied for a SCR of proposed design changes, including elimination of one level of parking, a slight increase in building height, and a change in the unit mix. The City’s publicly available information states that SCR’s “goal … is to determine if the proposed project is consistent and in conformance with a previously approved project” and it involves review by staff from multiple departments (e.g., planning, transportation, landscaping, engineering) who also determine conformance of changes with existing environmental mitigation conditions. This review culminated in a notice of decision approving the project changes (the SCR decision) from the City’s development services department, which found no new CEQA document necessary and directed any appeals to the planning commission.

The City’s Administrative Appeal Proceedings

Plaintiffs timely appealed the SCR decision to the planning commission. After considering a staff report documenting how the changes produced no new significant impacts, were consistent with the prior EIR, Addendum and MND, and are subject to all existing mitigation measures, the commission denied the appeal following a noticed public hearing at which plaintiffs presented their arguments. When plaintiffs attempted to further appeal the SCR decision to the city council, the City refused to process the appeal on the ground that “a determination that subsequent environmental review of a project is not required” is not appealable to the city council, citing Guidelines § 15162 and a local code provision.

The Court of Appeal’s Analysis And Disposition of Plaintiffs’ Litigation

In affirming the trial court’s denial of plaintiffs’ ensuing writ petition, the Court of Appeal stated a de novo standard of review applied to the legal issue whether CEQA mandated the administrative appeal sought by plaintiffs. After generally discussing CEQA’s three-tier review process and presumption against additional review following certification of an initial EIR for a project, the Court quoted the statute whose interpretation was at issue as follows:

If a nonelected decision making body of a local 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 decision making body, if any.

(Pub. Resources Code, § 21151(c).)

The Court had no trouble concluding this statute did not apply to require the City to provide for an administrative appeal of the SCR decision to its elected council. In making and upholding the SCR decision, staff and the planning commission did not certify an EIR or approve a negative declaration or MND. Nor did they determine the project was not subject to, or was exempt from, CEQA. A determination that an activity is “not subject to CEQA” occurs at the first tier of CEQA review prior to an initial study or EIR preparation. Here, obviously, the city council already determined the activity approved under the master plan was subject to CEQA and had significant environmental effects; the SCR decision did not alter this determination, but instead reaffirmed it as well as the continued applicability of the mitigation measures contained in all the prior CEQA documents.

The Court also rejected plaintiffs’ argument that they were entitled to an appeal to the city council because the SCR decision was discretionary and the project allegedly required further CEQA review, stating: “We conclude the discretionary or ministerial nature of the SCR decision is tangential to whether plaintiffs are entitled to a City Council appeal. … [N]either the City staff nor the Planning Commission determined the project was not 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 preparation of a subsequent environmental impact report – other conditions must be met. [citations] Thus, plaintiffs have failed to establish they are entitled to appeal the SCR decision to the City Council under any provisions of CEQA.”

Finally, the Court rejected plaintiffs claim that San Diego Municipal Code § 112.0520(a) independently gave them that appeal right by virtue of its provision that “any person may appeal an environmental determination” not made by the council to the council. The City’s code further defined “environmental determination” as a non-elected City decision maker’s decision to certify an EIR, adopt a negative declaration or MND, or determine a project is exempt from CEQA. For the same reasons discussed in connection with Public Resources Code § 21151(c), and because City did not find the project CEQA-exempt, this ordinance provision also did not entitle plaintiffs to appeal the SCR decision to the council.

Conclusion and Implications

I believe the Court of Appeal’s decision is clearly correct and consistent with CEQA’s basic scheme and fundamental purposes, as expressed in the statute and guidelines. In order to fulfill its purposes of educating government decision makers and the public about the environmental consequences of proposed projects, and of educating the public about the reasons why lead agencies approve projects with potentially significant effects as they do, the public must be able to force an agency’s elected decision making body to confront and be held accountable for certain major decisions within CEQA’s purview. Thus, decisions by a nonelected body to certify an EIR, approve a negative declaration or MND, or determine a project is not subject to CEQA at all, must be administratively appealable as of right to the local lead agency’s elected decision making body – if one exists – so as “to expose the elected decision makers to the political heat” of making such vital decisions. (Vedanta Society of So. California v. California Quartet, Ltd. (2000) 84 Cal.App.4th 517, 527.)

Where such fundamental decisions have already been made with respect to a project, however, and the issue is whether further CEQA review of modifications or implementing actions is needed, CEQA’s concerns for finality and efficiency properly predominate and a mandatory administrative appeal to the elected decision making body is not warranted. The Court’s decision honors the plain language and purposes of CEQA, while refusing to expand CEQA’s provisions beyond their plain terms and burden local agencies (with already strained and limited resources) with further time consuming, expensive and unnecessary administrative proceedings. In cases such as this, plaintiffs who exhaust the available administrative remedies will, of course, remain free to pursue judicial action challenging the lead agency’s final decision as made by the non-elected decision maker. But they will not be able to force the elected body to waste its time on relatively minor issues.