San Diegans for Open Government v. City of San Diego – filed Dec. 27, 2018, publication ordered Jan. 15, 2019, Fourth District, Div. One

The Fourth District Court of Appeal affirmed a trial court judgment upholding use of the “existing facilities” categorical exemption for a lease for a beachside amusement park, finding no unusual circumstances barring use of the exemption. The Petitioner, San Diegans for Open Government (SDOG), failed to demonstrate any causal connection between the “unusual circumstances” of a local measure limiting development and the alleged significant impacts of traffic and noise, which were also found to be speculative. 

The City of San Diego owns the land containing Mission Beach Park, a historic oceanfront amusement park in the Mission Beach neighborhood.  The City leases the land to Symphony Asset Pool XVI, LLC (Symphony), which maintains and operates the park. The park is subject to  Proposition G, which limits development at the site to public park, recreation, and historical preservation uses, as well as incidental and related uses.  After the passage of Proposition G, the City adopted an ordinance allowing continued operation of two of the park’s original attractions:  a roller coaster and an indoor swimming pool.  In 2015, the City approved an amended and restated lease with Symphony (Lease), which required that Symphony spend $5.9 million to refurbish the swimming pool building.  The Lease also acknowledged that $18 million of improvements and upgrades had already been undertaken by Symphony, including construction of a restaurant in an existing building, improvements to food court venues, and tenant improvements to an arcade.

SDOG filed a petition for writ of mandate and complaint for declaratory and injunctive relief, claiming that the City’s approval of the Lease violated Proposition G, CEQA, and a section of the City’s charter requiring publication of notice before the City enters into a contract for a period of more than five years. The superior court and the Fourth District both rejected these claims and upheld the City’s approval of the Lease.

On the CEQA claim, the Fourth District held that the City properly used the “existing facilities” categorical exemption to approve the Lease.  CEQA Guidelines Section 15301 exempts a project from environmental review when the project does not involve expansion of a use beyond that existing at the time of the lead agency’s determination.  Here, the $18 million in improvements mentioned in the Lease had already been completed at the time of Lease approval and therefore constituted existing facilities, not an expansion of use.  Moreover, the $5.9 million in future improvements involved refurbishment of the existing swimming pool building and therefore fell squarely within the existing facilities exemption.  Finally, SDOG failed to establish the applicability of the “unusual circumstances” exception to use of a categorical exemption (see CEQA Guidelines Section 15300.2(c)).  SDOG pointed to the existence of Measure G as the unusual circumstance, arguing that the voters had declared their interest in minimizing environmental impacts in the Park, and that there was a “fair argument that the Project will result in severe traffic and noise impacts”:  Symphony had represented that the Lease would generate over $100 million in revenue, and SDOG argued that such revenue “could only be generated as a result of a significant increase in the number of visitors,” which in turn would result in significant noise and traffic impacts.  The court rejected this argument, finding that (1) the claim of a significant increase in visitors generating significant noise and traffic impacts was “entirely speculative,” and (2) regardless, SDOG did not demonstrate any “causal connection” between any such impacts and the alleged “unusual circumstance”—i.e., the existence of Measure G.