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San Diegans for Open Government v. City of San Diego

California Court of Appeals, Second District, First Division

December 7, 2016

SAN DIEGANS FOR OPEN GOVERNMENT et al., Plaintiffs and Appellants,
CITY OF SAN DIEGO, Defendant and Respondent; SUNROAD ENTERPRISES et al., Real Parties in Interest and Respondents

         APPEAL from a judgment of the Superior Court of San Diego County, No. 37-2014-00014685-CU-TT-CTL, Judith F. Hayes, Judge.

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         Briggs Law Corporation, Cory J. Briggs, Anthony N. Kim and Kelly E. Mourning for Plaintiffs and Appellants.

         Jan L. Goldsmith, City Attorney, and Glenn T. Spitzer, Deputy City Attorney, for Defendant and Respondent.

         Richards, Watson & Gershon, Steven H. Kaufmann and Ginetta L. Giovinco for Real Parties in Interest and Respondents.

         Opinion by Nares, J., with McConnell, P. J., and Huffman, J., concurring.


          [212 Cal.Rptr.3d 39] NARES, J.

          This California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.)[1] case involves a development by Sunroad Enterprises and Sunroad Centrum Partners L.P. (together, Sunroad) of an

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office, residential, and retail project in the Kearny Mesa area of San Diego. Since 1997 the City of San Diego (the City) Council has approved the area for development under a master plan and over the ensuing years has thrice assessed the project for environmental impacts as required by CEQA. In 2012 Sunroad obtained a permit from the City to begin certain phases of residential development, including constructing several multilevel buildings over parking and ground level retail space.

         By the next year, Sunroad modified its design plans, ostensibly to meet real estate market demands, and sought the City's approval of the modified plans through a process known as substantial conformance review (SCR). The City's staff found that the modified plans substantially conformed with the conditions and requirements of the previously issued development permit and there was no need for further environmental impact documentation under CEQA. San Diegans for Open Government and CREED-21 (together, plaintiffs) appealed the staff's decision to the City Planning Commission (Planning Commission), which is comprised of members appointed by the City Council. Following a public hearing, the Planning Commission voted to uphold the SCR decision. The City denied plaintiffs' appeal to the City Council, which is comprised of elected officials.

         Plaintiffs argue they are entitled to appeal the SCR decision to the City Council under CEQA and the San Diego Municipal Code (SDMC). We disagree and affirm the judgment.


         The City Council Assesses the Project's Environmental Impacts Under CEQA

         In 1997 the City Council approved a master plan (Master Plan) and related agreements and permits to allow the development of a high-density, mixed-use retail, commercial, and industrial business park on 242 acres centrally located in the Kearny Mesa area. As part of the review process for the Master Plan, the City Council certified a final, program environmental impact report (EIR). The EIR recites its preparation " in accordance with state CEQA Guidelines Section 15168" [2] and its intent " to provide a comprehensive single environmental document that will allow the City of San Diego, as the lead agency, to carry out the entire project." The EIR contemplates subsequent actions by the City to " implement specific development plans" without additional environmental documentation " unless as otherwise required by [section] 21166 and state CEQA Guidelines Section 15160 et seq."

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         In 2000 the City Council amended the original industrial/commercial development permit to include residential development--up to almost 1,000 dwelling units-- [212 Cal.Rptr.3d 40] on a portion of the site. The City adopted an addendum to the EIR (Addendum), which discussed the proposed residential development and concluded there were no new significant environmental impacts. In 2002 the City Council amended its progress guide and general plan to increase the maximum amount of residential development allowed in the Master Plan area to 1,568 units and adopted a mitigated negative declaration (MND), which found that, with mitigation measures described in the document, the additional residential units would not have a significant environmental effect.

         Sunroad Obtains Permission to Begin ...

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