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San Diego Navy Broadway Complex Coalition v. City of San Diego

June 17, 2010

SAN DIEGO NAVY BROADWAY COMPLEX COALITION, PLAINTIFF AND APPELLANT,
v.
CITY OF SAN DIEGO, DEFENDANT AND RESPONDENT;
MANCHESTER PACIFIC GATEWAY LLC, REAL PARTY IN INTEREST AND RESPONDENT.



APPEAL from a judgment of the Superior Court of San Diego County, Ronald S. Prager, Judge. Affirmed. (Super. Ct. No. GIC880444).

The opinion of the court was delivered by: Aaron, J.

CERTIFIED FOR PUBLICATION

I. INTRODUCTION

The California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.)*fn1 requires that a public agency prepare an Environmental Impact Report (EIR) whenever the agency undertakes a "discretionary" project that may have a significant impact on the environment. (§ 21080.) Courts have concluded that the "touchstone" for determining whether an agency has undertaken a discretionary action that requires the preparation of an EIR is whether the agency would be able to meaningfully address the environmental concerns that might be identified in the EIR. (Friends of Westwood, Inc. v. City of Los Angeles (1987) 191 Cal.App.3d 259, 266 (Friends of Westwood).) If an agency lacks such authority, then "environmental review would be a meaningless exercise." (Mountain Lion Foundation v. Fish & Game Com. (1997) 16 Cal.4th 105, 117 (Mountain Lion Foundation).)

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 (Guidelines, § 15162(c)),*fn2 and certain statutorily enumerated new circumstances occur. (§ 21166; see also Guidelines, §§ 15162(a), 15163.)

In this case, we conclude that the City of San Diego (the City) was not required to prepare a subsequent or supplemental EIR regarding the potential impact of a redevelopment project called the Navy Broadway Complex Project (the Project), on global climate change, because the City did not grant a discretionary approval that would provide it with the authority to address the Project's impact on this environmental issue.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. The Project and the initial EIR

In 1992, the City entered into a development agreement with the United States of America for the redevelopment of certain waterfront property in downtown San Diego. The development agreement contemplated that the developer of the Project would be permitted to build up to 1,650,000 square feet of office space, 1,220,000 square feet of hotel space, 25,000 square feet of retail space, and 55,000 square feet of museum or other public attraction space.

The development agreement also established a development plan and a series of urban design guidelines related to the aesthetic design of the Project. The development agreement required that the developer submit its construction documents to the Centre City Development Corporation (CCDC)*fn3 so that the CCDC could determine whether the developer's submittals were consistent with the aesthetic criteria established in the development plan and the urban design guidelines.

At the time it entered into the development agreement, the City certified an EIR that analyzed the Project's potential environmental impacts.*fn4

B. The CCDC Determines That No Further Environmental Review Is Warranted In Connection With CCDC'S Consistency Reviews, And The City Upholds The CCDC'S Determinations

In 2006 and 2007, the developer, real party in interest Manchester Pacific Gateway LLC (Manchester), submitted its construction plans to the CCDC.*fn5 In connection with its consistency reviews, the CCDC determined that no further environmental review of the Project was warranted under CEQA. The San Diego Navy Broadway Complex Coalition (the Coalition), a nonprofit public benefit organization whose members have an interest in "ensuring informed and responsible growth," appealed the CCDC's decision to the city council.*fn6 In January 2007, and again in February 2008, the city council denied the Coalition's appeals and upheld the CCDC's CEQA determinations.

C. The Coalition's Petition For Writ Of Mandate

In February 2007, the Coalition filed a petition for writ of mandate in which it claimed, among other contentions, that the City had violated CEQA in January 2007 in determining that no further environmental review of the Project was required. In March 2008, the Coalition amended its petition to add a challenge to the City's February 2008 CEQA determination.*fn7

The Coalition filed a brief in support of its amended petition for writ of mandate in which it argued that the City was required to prepare an updated EIR to address the Project's impacts on numerous environmental issues, including water-supply, public-services, groundwater contamination, and air pollution, and the Project's "greenhouse-gas emissions and vulnerability to climate-change." In arguing that the CCDC's consistency determinations constituted "discretionary" actions under CEQA sufficient to require further environmental review, the Coalition acknowledged that "the scope of CCDC's determinations was limited to the issue of [submittals'] consistency with the Development Plan and Urban Design Guidelines as set forth in the Development Agreement," but claimed that the CCDC had made a "subjective" determination as to whether Manchester's submittals were of "sufficient quality and beauty" so as to be consistent with the development plan and urban design guidelines.

The City and Manchester filed a joint opposition to the amended petition. In their opposition, the City and Manchester argued that the Coalition had failed to exhaust its administrative remedies, and that it had failed to fairly present all of the evidence in the administrative record that was relevant to its claims. As to the merits of the Coalition's claims, the City and Manchester acknowledged that the City had previously concluded, at the administrative level, that CCDC's " 'evaluation of the plans and specifications' submitted by [Manchester] would involve a measure of 'discretion and judgment' sufficient to trigger CEQA, and that the City, as the lead agency and party to the Development Agreement, had a duty to evaluate whether any of the conditions of Section 21166 were met."*fn8 The City argued that none of the environmental concerns that the Coalition had raised met the conditions of section 21166, including the Project's greenhouse gas emissions and its potential impact on global climate change.

In addition to the joint opposition, Manchester also filed a supplemental opposition to the amended petition. In its supplemental opposition, Manchester argued that the CCDC's consistency reviews did not constitute discretionary actions sufficient to trigger potential further environmental review under section 21166. Manchester argued that "[u]nder Friends of Westwood, review is not discretionary if it does not allow the agency to shape the project...." Specifically, Manchester contended that, "to the extent CCDC exercises any discretion, it is limited to aesthetics" and that "a modicum of discretion regarding aesthetic ideals does not require environmental review under CEQA."

After further briefing and a hearing, the trial court denied the amended petition. In its order denying the amended petition, the court concluded, as a threshold matter, that the Coalition had failed to adequately exhaust its administrative remedies as to several of the issues that it raised in its amended petition, including its claims pertaining to greenhouse gas emissions and climate change, because it had failed to adequately present those issues to the city council.*fn9 The court also denied the amended petition on the procedural ground that the Coalition had not fairly presented all of the relevant evidence from the administrative record in its brief. On the merits, the trial court concluded that CCDC's consistency determinations were not discretionary actions under CEQA. The court also concluded that CEQA did not require the City to prepare an updated EIR concerning the Project's greenhouse gas emissions or global climate change impacts because, at the time the City considered whether an updated EIR was required, CEQA did not require an analysis of these environmental issues.

The trial court subsequently entered a judgment denying the Coalition's amended petition for writ of ...


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