In a lengthy, but mostly unpublished, opinion filed December 16, 2021, the Fourth District Court of Appeal affirmed the trial court’s judgment rejecting a petitioner group’s CEQA, Planning and Zoning Law, and procedural due process/fair hearing challenges to the City of San Diego’s approval of a four-lane road connecting existing developments.  Save Civita Because Sudberry Won’t v. City of San Diego (2021) 72 Cal.App.5th 957.  In the opinion’s published portions, the Court held that (1) the City did not violate CEQA Guidelines § 15088.5(g) in failing to summarize revisions made to a recirculated draft EIR, and (2) petitioner’s procedural due process claim was foreclosed because the City Council acted in a quasi-legislative capacity in certifying the FEIR and approving the road project.  (In the opinion’s unpublished portions, which won’t be discussed in detail here, the Court also upheld the trial court’s rejection of Petitioner’s claims that the FEIR:  failed to analyze a project alternative of removing the road from a community plan; failed to adequately analyze traffic impacts and hazards; failed to disclose the VMT calculation’s margin of error; and failed to discuss impacts on General Plan consistency and pedestrian-friendly communities.)

Factual And Procedural Background

The City’s “Serra Mesa Community Plan [SMCP] Amendment Roadway Connection Project” (Project) proposed an amendment to the SMCP, which is part of the City’s General Plan, to reflect a proposed north-south major roadway (consisting of four lanes together with a median, bicycle lanes, and pedestrian pathways) to connect the Serra Mesa subdivision development (to the north) to the partially built-out Civita development, which was approved in 2008 (to the south). The Mission Valley Community Plan (MVCP) already contemplated such a street connection.  The Civita EIR had analyzed such a potential road connection as part of one of its project alternatives, and at the time of Civita’s approval the City Council directed staff to analyze an amendment to the SMCP to include such a road, which would achieve consistency with the MVCP, and which was the genesis of the project at issue.

During environmental review of the Project, it evolved from being merely a plan amendment analyzed in a “programmatic EIR” to a specific project, in a specific location, that the City intended to also construct.  The City therefore recirculated a completely re-vamped revised draft EIR (RDEIR) in the form of a “project EIR” which essentially “replaced” the prior program EIR.  After responding to public comments on the RDEIR, the City Council adopted two resolutions.  One certified the FEIR (making related CEQA findings), and adopted a statement of overriding considerations and MMRP.  The other adopted the SMCP/General Plan amendments identifying the roadway connection.  After the trial court denied petitioner’s ensuing writ petition, petitioner timely appealed and the Court of Appeal affirmed the judgment.

The City’s RDEIR Did Not Violate CEQA Guidelines § 15088.5(g)’s Summarization Requirement And Any Alleged Violation Was Not Prejudicial In Any Event

CEQA Guidelines § 15088.5(g) provides:  “When recirculating a revised EIR, either in whole or in part, the lead agency shall, in the revised EIR or by an attachment to the revised EIR, summarize the revisions made to the previously circulated draft EIR.”

Addressing issues of first impression, the Court of Appeal applied a de novo standard of review to its interpretation of, and to the issue whether City complied with, this “summarization requirement.”  The City’s RDEIR, in its Project Description chapter, explained that after considering public comments, the City determined that roadway construction and related impacts were foreseeable results of the original project, and it therefore replaced the originally circulated “programmatic”-level DEIR with, and recirculated for a second review, a “project-level” revised DEIR.  In its responses to comments on the RDEIR, the City asserted that it complied with the summarization requirement by advising that project-level analysis required extensive revisions throughout the document and that the RDEIR “replaced” the PDEIR.  In light of its “complete overhaul” of the EIR, the City also responded that it did not provide a “strike-out” version or list of changes because these would not have provided any additional meaningful information to EIR readers; rather, the City’s position was that it complied with the summarization requirement by its statement that the EIR had been “converted from a high level program analysis to a detailed project level analysis [.]”

The Court of Appeal agreed with the trial court’s determinations that the City’s summarization was adequate, that a list or redline of changes would have been confusing or futile, and that any arguable non-compliance was not prejudicial as it did not prevent informed and meaningful public participation or informed agency decisionmaking.

The Court summarized its holding as follows:  “In sum, where a recirculated EIR states that it is replacing a prior EIR and the agency makes clear the overall nature of the changes (as the City did in this case), and states that prior comments will not receive responses, the agency may be said to have complied with the Guidelines’ [summarization] requirements[.]”  Even assuming that was not the case, the Court also concluded that “the public was on notice of the need to resubmit comments or to submit new comments” and that “any failure to summarize did not deprive the public of a meaningful opportunity to discuss and critique the Project.”

The City Council Acted In a Quasi-Legislative Capacity In Certifying
The FEIR And Approving The Project, And Was Therefore Not Subject
To Procedural Due Process Requirements

The Court next upheld the trial court’s rejection of Petitioner’s procedural due process argument, but based on different reasoning.  Petitioner’s argument was essentially that the City failed to provide the fair hearing required by due process because one City Council member who voted to approve the FEIR and Project was a biased “cheerleader” for the Project and had made up his mind prior to hearing any evidence.  While the trial court had found that the Council member’s actions expressing support for the Project were insufficient to establish an unacceptable probability of actual bias, the Court of Appeal took a different tack.  It found the threshold – and ultimately dispositive – issue to be a question of law, i.e., whether the City acted in a quasi-adjudicatory capacity in certifying the FEIR and approving amendments to the planning documents.  City council members act in various capacities at different times, but procedural due process protections – such as assuring a neutral and unbiased decisionmaking body – apply only when they act in a quasi-adjudicatory capacity similar to judges, i.e., when they determine and apply facts peculiar to an individual case.  Quasi-legislative actions on the other hand, such as enacting generally applicable laws and rules based on broad public policy considerations, are not subject to procedural due process principles and protections (such as the right to a neutral and unbiased adjudicator who has not “prejudged” the facts).

Quasi-legislative actions are reviewed by ordinary or traditional mandamus proceedings (CCP § 1085), while quasi-adjudicatory actions are reviewed through administrative mandamus actions.  (Citing CCP § 1094.5(a); Citizens for East Shore Parks v. State Lands Com. (2011) 202 Cal.App.4th 549, 571.)  Judicial review under CEQA is governed by Public Resources Code § 21168.5 when the action reviewed is not quasi-adjudicatory, and under § 21168 (which references CCP § 1094.5) when the action is quasi-adjudicatory.  Importantly, Public Resources Code § 21168 and CCP § 1094.5 do not simply apply whenever an agency is required by law to hold a hearing on a matter, but only where the agency was acting in a quasi-adjudicatory capacity.  (Citing Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 566-568.)  “Thus, under Western States, a local agency’s certification of an EIR is quasi-legislative, unless the underlying action that the public agency analyzed in the EIR is quasi-adjudicative.”

Because the City’s two underlying actions analyzed in the FEIR – i.e., the approval of road construction and the amendment of general and specific plan documents – were quasi-legislative in nature, procedural due process requirements like those invoked by petitioner did not apply.  Per the Court:  “[C]onsistent with the case law discussed in [the opinion] [citation], we conclude that the City’s act in approving the building of the road was a quasi-legislative act.  In addition, . . . it is clear that the City’s acts in amending planning documents to show the proposed roadway were quasi-legislative.  Because both of the acts analyzed in the FEIR are quasi-legislative, we conclude that the City’s act in certifying the FEIR was also quasi-legislative.”  The Court rejected as unsupported, and contrary to the framework established by the Supreme Court in Western States, petitioner’s arguments that Public Resources Code § 21168 applies whenever an agency is required to make findings, and that the Legislative intended the CEQA EIR certification process to be adjudicatory.  Accordingly, it held petitioner’s procedural due process claim was foreclosed.

Conclusion and Implications

The Court’s opinion addresses issues of first impression regarding the recirculated DEIR “summarization” requirement of what turns out to be a rather obscure regulation, CEQA Guidelines § 15088.5(g).  It also tackles the more interesting (and more frequently arising) issue of when procedural due process protections apply to an agency’s underlying approvals and related CEQA compliance actions.  In my experience, CEQA petitioners will not infrequently join “procedural unfairness” due process claims with CEQA and land use law claims in their writ petitions; this case serves as a good reminder that such claims may be demurrable and subject to dismissal at the pleading stage when the agency’s challenged underlying actions are all clearly “quasi-legislative” in nature, as they were in this case.


Questions?  Please contact Arthur F. Coon of Miller Starr Regalia.  Miller Starr Regalia has had a well-established reputation as a leading real estate law firm for fifty years.  For nearly all that time, the firm also has written Miller & Starr, California Real Estate 3d, a 12-volume treatise on California real estate law.  “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state.  The firm has expertise in all real property matters, including full-service litigation and dispute resolution services, transactions, acquisitions, dispositions, leasing, construction, management, title insurance, environmental law, and redevelopment and land use.  For more information, visit