In a published opinion filed October 17, 2025, the Fourth District Court of Appeal (Div. 1) reversed the trial court’s judgment and directed it to grant a writ of mandate invalidating the City of San Diego’s (“City”) Supplemental EIR (“SEIR”) prepared for its second City-sponsored ballot measure to exclude the Midway-Pacific Highway Community Planning area (“MPH area”) from its Coastal Height Limit Overlay Zone, which generally limits building heights to 30 feet. The Court held the SEIR violated CEQA because it failed to analyze potential significant environmental impacts of this significant plan update other than views and neighborhood character, omitting what it deemed required analysis of noise, air quality, biological resources, geological conditions, and other impacts, and improperly deferring analysis to future site-specific projects. Save Our Access v. City of San Diego (2025) 115 Cal.App.5th 388.
Background
In an earlier appeal, the Court of Appeal affirmed a prior trial court judgment invalidating City’s first ballot measure to remove the 30-foot height limit in the MPH area, which was approved in 2020, because the 2018 program EIR (“PEIR”) the City prepared for that project completely failed to consider the impacts of that significant plan change, and analyzed its impacts as though the height limit would remain in place. (For a detailed analysis of that decision, Save Our Access v. City of San Diego (2023) 92 Cal.App.5th 819 (“SOA I”), see my 7/10/23 post here.)
While the City’s appeal in SOA I was pending, it prepared an SEIR for and approved a second ballot measure to remove the height limit from the MPH area, this time analyzing impacts on views and neighborhood character, but apparently largely relying on the 2018 PEIR’s analysis to declare the measure would have no other significant effects in any other impact areas. The trial court denied petitioner Save Our Access’s writ petition challenging the SEIR, but the Court of Appeal reversed in its recently published opinion discussed in this post.
The Court of Appeal’s Opinion
The parties did not contend the Legislature’s recent significant CEQA amendments (i.e., AB 130 and SB 131) had any impact on the case; thus, the “limited” issue before the Court was whether the SEIR adequately informed the City decisionmakers and the public of the potential environmental impacts of approving the second ballot measure to remove the 30-foot height limit in the MPH area, identified possible mitigation measures, and supported a valid statement of overriding considerations. The Court concluded it did not.
The gist of the Court’s reasoning was that, with the exception of a new analysis of views and neighborhood character, the SEIR continued to improperly rely on the PEIR’s deficient analysis – which essentially reasoned that, due to unchanged footprint, land use, density, and zoning there would be no new unanalyzed impacts from the increased building height limits – without analyzing a number of other potential environmental impacts of building heights above 30 feet. Use of the PEIR’s analysis was erroneous because, as the Court had pointed out in its SOA I opinion, that analysis assumed the 30-foot height limit remained in place and did not actually analyze the impacts of newly-allowed buildings exceeding 30 feet on numerous environmental resources. Noting the significance of the height-limit change to the MPH area, the Court noted the Community Plan update would permit buildings of 100 feet or higher in four zones with no height limit along Interstate 8 on the north and Interstate 5 on the east; and 40 to 65-foot high buildings bordering a community to the west.
The Court proceeded to “discuss [at length] a few nonexhaustive examples” of what it held to be the initial study’s and SEIR’s failures to consider potential significant environmental impacts of such taller buildings. These included noise impacts, which it noted are significantly affected by an area’s terrain, building size and spacing, and site geometry, and could be greatly influenced and altered by the “nature of the sound path” between the noise sources and sensitive receptors. Per the Court, such influences of large tall buildings could include shielding, reflecting, or refracting noise from the nearby freeways, rail road, and other sources, and noise from construction of such tall buildings could also be significant due to their more extensive foundations, and required ground improvement and structural support.
Also unanalyzed by the SEIR, according to the Court, were taller buildings’ “interact[ions] with air flow or other atmospheric conditions that help dissipate emissions or odors” – air quality factors which are also greatly influenced by area topography and terrain that would be significantly altered by the taller buildings. Constructing larger buildings could also result in greater total construction and operational air pollutant and GHG emissions than buildings not exceeding 30 feet, even assuming densities and unit counts were unaltered.
The Court also found the SEIR lacked adequate analysis of tall buildings’ potential noise, topography and lighting impacts on nearby biological resources, including sensitive habitats and special status species like the American Peregrine falcon. Lacking also in its eyes were the initial study’s and SEIR’s analyses of impacts on geological conditions in an area “largely underlain by artificial fill and young alluvial deposits, which are susceptible to liquefaction, settlement, dynamic consolidation, slope instability, and poor foundation characteristics” – impacts that could be exacerbated by rising sea and high groundwater levels and potentially adversely impact hydrology and water quality.
In sum, the Court of Appeal held the SEIR left too many potentially significant issues unaddressed and unanswered, and rejected City’s attempt to defer such analyses to future site-specific projects. Per the Court: “Deferring analyses and mitigation measures to site-specific discretionary development projects to comply with an existing regulatory framework is inadequate when considering a significant change to an entire area at a program level.” Rather, the Court opined that program EIRs should “deal[] with the effects of the program as specifically and comprehensively as possible” (citing CEQA Guidelines, § 15168(c)(5)), and that “[t]iering is only appropriate for unspecified and uncertain future projects where it would be speculative to consider the environmental consequences now.” (Citing Environmental Protection Information Center v. California Dept. of Forestry & Fire Protection (2008) 44 Cal.4th 459, 503.) Because the Court found “the City had sufficiently reliable data to produce renderings of how buildings over 30 feet would visually impact the [MPH] area” – many of which it reproduced in its opinion – and “similarly has sufficiently reliable data to prepare a meaningful and accurate report analyzing how such [tall] buildings may impact both the environment within [and surrounding] the [MPH] area,” the Court held the SEIR should have conducted this analysis in detail as part of a first-tier program EIR.
Conclusion and Implications
The Court of Appeal’s opinion definitely went far “into the weeds” regarding the SEIR’s asserted analytical omissions and deficiencies, and the types of potential impacts it should have analyzed at a program level in connection with a community plan update removing the 30-foot height limit across the entire MPH area. It obviously didn’t help that the City still apparently heavily relied on a prior PEIR analysis the Court had already found inadequate and which assumed the 30-foot height limit would remain in place.
But – and admittedly not having read the SEIR or appellate briefs – a number of things bother me about the Court’s opinion. First, its easy conflation of the data needed to produce accurate visual renderings and non-speculative acoustical, air quality/dispersion, geotechnical, and biological resources impact studies seems highly questionable. I’d venture the visual renderings were based on hypothetical build out with maximum allowed building heights under base zoning (and maximum reasonably probable heights in areas with no limits under the zoning) so as to depict a “worst-case” visual scenario across the entire MPH area. (While it is well established that CEQA doesn’t require analysis of a worst-case scenario, that would seem to be a feasible and reasonable way to conduct the SEIR’s visual impact analysis, even though such a build out is not reasonably probable.) But having the necessary data to conduct meaningful noise, air quality, geotechnical, and biological studies of the inherently sophisticated, extensive, and expensive kind the Court is talking about seems to me an entirely different thing. With myriad parcels of varying sizes, shapes, and ownerships across the MPH area, the possible variations in timing, nature, size and height of potential future development projects would seem to be virtually infinite. That being so, choosing at the program level a reasonably probable actual physical build-out pattern upon which to base the environmental studies the Court would apparently require seems to me to be an inherently speculative endeavor, as I see no way to accurately predict actual future building heights, locations, sizes, spacing, etc. – the very factors the Court says are needed for the analyses.
Second, the Court’s curt criticism of the City’s deferral of the technical noise, air emissions/dispersion, and geotechnical analysis to the later stages of site-specific projects in reliance on future compliance with applicable mitigating regulations seems unwarranted. It is well established under CEQA that the details of precisely how feasible mitigation will be achieved under identified measures and articulated performance standards can be deferred pending completion of future studies where practical considerations require and there is a commitment to mitigate. (See, e.g., 8 Miller & Starr, Cal. Real Estate (4th ed 2025), CEQA, § 26:18, pp. 273-274, fn. 65, and accompanying text and authorities cited; see also id. at pp. 275-276, citing Oakland Heritage Alliance v. City of Oakland (2011) 195 Cal.App.4th 884, 898-912 [technical reports established feasibility of mitigating seismic impacts of future building construction through regulatory compliance with state and local building regulations and there was no improper deferral of mitigation].) The Court’s rather cursory analysis in this area appears to ignore much potentially applicable law.
Finally, the Court’s rather unusual (and unexplained) award of fees (in addition to costs) on appeal to plaintiffs in the first instance, made in the Opinion’s disposition, is unique enough to raise an appellate practitioner’s eyebrow.
Having not succeeded in its second effort now at a community plan update project that has been in the making for over a decade, will the City “try, try again” to conduct the program EIR analyses the Court seems to want? Only time will tell. While the Court of Appeal’s decision facially appears to provide something of a “road map” (albeit through “nonexhaustive examples”) for an EIR fix it would find acceptable, the required analysis would also appear to be extensive, expensive, and time-consuming – and, as noted above, ultimately speculative and thus of questionable informational value at the program EIR stage. The beleaguered City of San Diego has announced in the press that it intends to seek Supreme Court review of the decision, and while that’s always a long shot, I really can’t blame it there. So, stay tuned.
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 more than sixty years. For nearly all that time, the firm also has written Miller & Starr, California Real Estate 4th, 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, financing, common interest development, construction, management, eminent domain and inverse condemnation, title insurance, environmental law and land use. For more information, visit www.msrlegal.com