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In Save Civita Because Sudberry Won’t v. City of San Diego (Dec. 16, 2021, D077591) ___Cal.App.5th___ [2021 Cal.App. LEXIS 1055], the Fourth District Court of Appeal addressed CEQA and Constitutional claims related to a proposed roadway in the City of San Diego (City). In the published portion of the opinion, the Court held that the City properly summarized the revisions made when recirculating a draft EIR, and that its decisions to certify the FEIR and approve the project were quasi-legislative acts that were not subject to procedural due process requirements applicable to quasi-adjudicative hearings. In the unpublished portion, which is not discussed further in this summary, the Court rejected additional claims challenging the adequacy of the EIR as well as allegations that the Project was inconsistent with the general plan.

In 2016 the City circulated a programmatic draft EIR (PDEIR) examining construction of a roadway connector (Project). In 2017 the City decided to recirculate a project-level EIR (RE-DEIR) for the Project. The Project involved community plan and general plan amendments, both required for construction of the roadway. Save Civita Because Sudberry Won’t (Petitioners) filed a lawsuit alleging violations of CEQA, the Planning and Zoning Law, and their Due Process rights. The petition was denied in its entirety at trial and Petitioners appealed.

CEQA Guidelines section 15088.5(g)

CEQA Guidelines section 15088.5(g) requires a recirculated EIR to summarize the revisions made to the previously circulated draft EIR. Petitioners argued the City failed to do so in the RE-DEIR. In response to comments on the RE-DEIR, the City stated that sections of the RE-DEIR, as well as its notice of availability, explained that changes were made to undertake a project-level analysis in place of the prior programmatic analysis. The City added that providing a “strike-out” version of the RE-DEIR as requested by commenters would provide no additional meaningful information as nearly the entire document would be shown as strikeout/underline due to the extensive structural changes. The trial court found that the City had “arguably” failed to satisfy subdivision (g), but that any such failure was not prejudicial.

Applying a de novo standard of review, the Court of Appeal found that the City did not violate subdivision (g). In making this determination, the Court interpreted subdivision (g) in light of the recirculation requirement as a whole, concluding that, “where a recirculated EIR states that it is replacing a prior EIR and the agency makes clear the overall nature of the changes…, and states that prior comments will not receive responses, the agency may be said to have complied with [subdivision (g)].” And, further, the Court agreed with the trial court that even if the City had failed to adequately summarize revisions made to the PDEIR, this failure was not prejudicial because the public was not deprived of the opportunity to meaningfully discuss and/or criticize the Project.

Quasi-Legislative Acts and Procedural Due Process

Petitioners argued that their due process right to a fair hearing had been violated because a member of the City Council was effectively a “cheerleader” for the Project and decided to approve it before evidence was presented for consideration. The threshold issue was whether the approval was quasi-adjudicative or quasi-legislative in nature, as due process protections do not apply to quasi-legislative actions under settled law. The Court surveyed a breadth of case law finding that the decision to certify an EIR, the decision to approve the building of a road, and the decision to amend a planning document are all quasi-legislative in nature.

Here, with regard to the amendments to the community and general plans, the Court found that the amendment of a community plan – like other planning documents – involves the adoption of rules of general application, and is therefore a quasi-legislative act that is exempt from procedural due process claims. Petitioner argued that the fact that a hearing had been required rendered the decision quasi-judicial. But the Court was unpersuaded, even assuming such a requirement existed.

With regard to certification of the FEIR, the Court quoted extensively from Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559 for the proposition that whether an agency’s certification of an EIR is a quasi-legislative or -adjudicative act depends on the underlying action evaluated in the EIR. Thus, because approving the road construction was legislative in nature, the Court found that the City’s decision to certify the EIR was also quasi-legislative.  Petitioners’ arguments that any EIR certification is quasi-adjudicative because findings are required was contradicted by numerous cases. As such, the Court affirmed denial of the petition.

Key Points:

  • A recirculated EIR will comply with CEQA Guidelines section 15088.5(g) “summary of revisions” requirement where it clearly states that changes have been made along with the nature of those changes.
  • Procedural due process rights are only available in CEQA actions where the action underlying the agency’s approval of an EIR was quasi-adjudicative. Adoption and amendment of rules of general application on the basis of broad policy concerns are quasi-legislative and not subject to procedural due process claims.