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On June 23rd, the Fourth District published Save Our Access v. City of San Diego (2023) 92 Cal.App.5th 819, holding that a city’s approval of a ballot measure to remove the 30-foot Coastal Zone height limit in a community planning area required further environmental review. The Court concluded that the program EIR evaluating the plan update had not considered the impacts of excluding the area from the height limit, and applied the fair argument standard of review to determine that the changes could cause environmental impacts.

The Court’s application of the fair argument standard in this context is in tension with existing precedent applying the deferential substantial evidence standard of review under CEQA’s subsequent review doctrine, unless the changes are so extensive as to constitute an entirely new project.


Since the 1972 passage of Proposition D (codified as San Diego Municipal Code section 132.0505), the City of San Diego (City) has prohibited buildings taller than 30 feet from being constructed within its “Coastal Zone” – most of the area west of Interstate 5 (the area is unrelated to the Coastal Zone as defined in the Coastal Act). A vote of the electorate is required to amend the prohibition.

In 2008, the City initiated a process to update the Midway-Pacific Highway Community Plan, an area within the City’s Coastal Zone, including the former San Diego International Sports Arena. In 2018, the City Council approved a Community Plan Update (“CPU”) for the area, and certified a program EIR for the CPU. The final CPU provided for a mixed-use development including residential, commercial, military, and industrial buildings.

In 2020, two City Councilmembers proposed a ballot measure to remove the height limit from the Midway-Pacific Highway Community Plan area. Internal City emails and a subsequent staff report concluded that the CPU’s program EIR accounted for this possibility, and that no supplemental EIR would be required. Save Our Access submitted a letter to the City disagreeing with those conclusions, maintaining that the CPU did not anticipate removing the height limits. Nonetheless, in July 2020, the City passed an ordinance submitting the question of removing the height limit in this area to the voters. The City also issued a memorandum stating that the proposed amendment would not result in new significant impacts to the environment.

Save Our Access sued, arguing that the City had not adequately addressed the environmental impacts of removing the height limit. The trial court entered a judgment in favor of Save Our Access and the City appealed.

The City subsequently certified a supplemental EIR, and voters have re-approved the measure. But Save Our Access filed a second lawsuit attacking that approval, and in a footnote, the Court found that the City’s subsequent actions did not moot the issues in this appeal.

Scope of the Program EIR

The parties agreed that submission of the ballot measure to voters was a project subject to CEQA, but the City maintained that the program EIR had adequately evaluated this possibility.

The Court considered the CPU as well as the program EIR. The CPU described the Coastal Zone height limit, but did not state whether it would remain in force. The program EIR was also silent on the topic. The City acknowledged that removal of the height limit was not specifically identified in either document, but argued that because Citywide base zones allowed maximum structure heights more than 30 feet in some zoning areas, it could be inferred that the CPU anticipated there would be a later proposal to remove the height limit.

The Court disagreed, noting that this general reference to varying height limits throughout the City was inadequate to inform the public and decision makers that the height limits within the CPU area might be removed. It pointed out that the CPU land use analysis focused solely on the build-out using total dwelling unit yield. To the extent exceptions to existing zoning requirements were considered, the analysis only looked at exceedance of the proposed maximum residential densities, not height limitations. The program EIR also noted that new development would take place within the constraints of the existing urban framework and development pattern. Emails and project renderings also indicated that the development had been reviewed within the confines of the existing height limit. The Court further found that excerpts from after-the-fact emails from planning staff stating that the height limit was not considered in the EIR analysis did not constitute substantial evidence that the amendment to the height limit fell within the scope of the document.

As such, the Court found there was no substantial evidence to support the City’s determination that removal of the height limit was a later activity within the scope of the previously certified program EIR under CEQA Guidelines section 15168.

Fair Argument of New Impacts

Under CEQA’s subsequent review doctrine, when an EIR has been certified and the project later changes, no subsequent EIR is required unless the changes would cause new or increased significant environmental impacts. (Pub. Resources Code, § 21166; CEQA Guidelines, § 15162) An agency’s factual conclusion that no such impacts would occur is entitled to deference under the substantial evidence standard of review.

However, the Court did not apply the subsequent review doctrine here. Relying primarily on Sierra Club v. County of Sonoma (1992) 6 Cal.App.4th 1307 (Sonoma), the Court held that the fair argument standard, and not the deferential substantial evidence standard, applies to an agency’s decision not to prepare a subsequent EIR if the initial EIR was a program EIR. Having found no substantial evidence to support that the revised project was within the scope of the prior program EIR here, the Court found the fair argument standard to apply, as would be the case if no prior EIR had been prepared. The Court also cited Public Resources Code section 21094, governing tiering, in support of this conclusion. Once a program EIR is certified, the agency must determine whether changes in a later project may cause significant impacts not previously analyzed when determining whether additional review is required. Following Sonoma, the Court took that to mean that the fair argument standard applies to this question.

Applying the fair argument standard, the Court noted that the program EIR’s impact analysis of alteration of public views, as well as “visual effects and neighborhood character,” found the impacts to be less-than-significant specifically because the CPU would take place within the constraints of the existing development pattern. The Court interpreted the statement to mean that potential development not within the constraints of the existing pattern could cause significant environmental impacts not considered in the program EIR. The Court also noted that community concerns about air circulation, bird flight paths, and heat islands echoed reasons cited for the initial implementation of the Coastal Zone Height Limit in 1972. It also relied on public concerns about traffic, air quality, water quality, and greenhouse gas emissions to find that substantial evidence supported a fair argument that a supplemental EIR would be needed.

As such, the Court upheld the trial court decision, finding that further CEQA analysis had been required prior to the City approving the ballot measure.


The Court’s analytical process in this case is both surprising and potentially problematic. Courts have routinely applied CEQA’s subsequent review doctrine to post-approval changes, including to program EIRs, reviewing the agency action under the deferential substantial evidence standard. Sonoma has been understood as applying the contrary fair argument standard because the agency in that case had approved a new and entirely different project – a mine on what the prior EIR evaluated as agricultural land.

The Court here departed from the analysis precedent indicates should apply, and did so without addressing these authorities. While it relied on the fact that the prior EIR was prepared for a program, courts have also routinely observed that labeling an EIR as either programmatic or project-level has little practical significance. The Court also did not address whether or why changing the height limit in the area was significant enough to render the resulting plan a fundamentally new project.

Even the Court’s application of the law governing project-level decisions following a plan-level EIR, CEQA Guidelines section 15168, subdivision (c), seems peculiar on the facts. Removal of the height limit was a change to the CPU itself, and not a particular project proposed within the CPU. It is not obvious why provisions governing later activities within a program, relied on by the Court, would apply in this context.

Even assuming the provision does apply to cases such as this, section 15168, subdivision (c)(2) states that the agency must apply CEQA’s subsequent review doctrine, citing CEQA Guidelines section 15162, to determine whether the later activity is within the scope of the analysis. It goes on to say that analysis is “a factual question that the lead agency determines based on substantial evidence in the record” – a fairly unambiguous signal that the conventional substantial evidence standard of review should apply, giving deference to the agency’s factual findings.

It is also worth noting the Court’s unusual application of the fair argument standard here. A petitioner should not prevail, even under the fair argument standard, without presenting substantial evidence that a significant impact may occur. That the initial EIR relied on compliance with standards to find impacts to be less-than-significant does not suggest that failure to comply with a particular standard may cause environmental impacts. Nor do public “concerns” typically constitute substantial evidence of an impact.

Could the Court have reached the same outcome applying a more conventional analysis? Probably. And it is possible the record contained evidence not discussed in the opinion. But the opinion’s failure to grapple with existing, relevant precedent, and either distinguish those cases or explain why the Court believed them to be incorrect, creates unfortunate uncertainty in the law.

Key Points

  • Under the opinion’s reasoning, any agency’s decision not to prepare a subsequent EIR to evaluate project changes because a prior program EIR’s impact analysis remains adequate is potentially subject to the fair argument standard of review.
  • If the published decision retains its precedential value, agencies will need to be cautious when relying on the adequacy of program EIRs.