Opinion
D077591
12-16-2021
SAVE CIVITA BECAUSE SUDBERRY WON'T, Plaintiff and Appellant, v. CITY OF SAN DIEGO, Defendant and Respondent.
Briggs Law Corporation, Cory J. Briggs, San Diego, and Janna M. Ferraro for Plaintiff and Appellant. Mara W. Elliott, City Attorney, George F. Schaefer, Assistant City Attorney, and Lynn M. Beekman and Benjamin P. Syz, Deputy City Attorneys, for Defendant and Respondent.
Certified for Partial Publication.
Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of parts III.A.2, III.A.3, III.A.4, and III.B.
Briggs Law Corporation, Cory J. Briggs, San Diego, and Janna M. Ferraro for Plaintiff and Appellant.
Mara W. Elliott, City Attorney, George F. Schaefer, Assistant City Attorney, and Lynn M. Beekman and Benjamin P. Syz, Deputy City Attorneys, for Defendant and Respondent.
AARON, Acting P.J. I.
INTRODUCTION
The City of San Diego (City) certified an environmental impact report (EIR) for the "Serra Mesa Community Plan [SMCP] Amendment Roadway Connection Project" (Project) and approved an amendment to the SMCP and the City's General Plan to reflect the proposed roadway. The proposed four-lane major road—together with a median, bicycle lanes, and pedestrian pathways—would run in a north/south direction between Phyllis Place in Serra Mesa to Via Alta / Franklin Ridge Road in Mission Valley. Via Alta and Franklin Ridge Road are contained within Civita, a partially built out mixed-use development that the City approved in 2008.
The resolution approving the amendment noted that it "reconciles a conflict between the Serra Mesa and Mission Valley community plans because the Mission Valley Community Plan [MVCP] includes the street connection but the current version of [SMCP] does not." The resolution also stated that the amendment to the City's General Plan was required "due to the [SMCP] being part of the Land Use Element of the 2008 General Plan."
When depicted on a map, the proposed roadway forms an upside-down "Y"-shaped intersection at Phyllis Place, Via Alta, and Franklin Ridge Road. (See Appendix A, post. )
Civita was initially named "Quarry Falls." For purposes of clarity, we refer to the development as Civita throughout this opinion.
Save Civita Because Sudberry Won't ("Save Civita") filed a combined petition for writ of mandate and complaint for declaratory and injunctive relief (Petition / Complaint) against the City, challenging the City's certification of the EIR and approval of the Project. In its Petition / Complaint and briefing, Save Civita contended that the City violated the California Environmental Quality Act ("CEQA") ( Pub. Resources Code, § 21000 et seq. ), the Planning and Zoning Law ( Gov. Code, § 65000 et seq. ), and the public's due-process and fair-hearing rights. The trial court denied the Petition / Complaint in its entirety and entered a judgment in favor of the City.
According to the Petition / Complaint, Save Civita "is a non-profit organization," that has "[a]t least one ... member[ ] [who] resides in, or near, the Serra Mesa community of [the] City of San Diego, California, and [that] has an interest in, among other things, ensuring open, accountable, and responsive government and in protecting Serra Mesa's quality of life."
The administrative record indicates that Sudberry Properties is an entity associated with Civita's developer.
Unless otherwise indicated, all subsequent statutory references are to the Public and Resources Code.
Specifically, Save Civita raised its CEQA and Planning and Zoning Law claims in the Petition / Complaint, and asserted its procedural due process claim in a supporting brief.
On appeal, Save Civita raises four claims related to the City's certification of the EIR for the Project. First, Save Civita claims that the City violated Guidelines section 15088.5, subdivision (g) in failing to summarize revisions made in the Project's recirculated draft EIR (RE-DEIR). Save Civita also claims that the Project's final EIR (FEIR) was deficient because it failed to adequately analyze, as an alternative to the Project, a proposal to amend the MVCP to remove the planned road from that community plan. Save Civita further contends that the FEIR is deficient because it failed to adequately analyze the Project's traffic impacts. Specifically, Save Civita maintains that the FEIR failed to disclose the true margin of error associated with a traffic projection in the FEIR and "ignored obvious traffic hazards," (capitalization and boldface omitted) that the Project would create on Via Alta and Franklin Ridge Road. Save Civita also claims that the FEIR failed to adequately discuss the Project's inconsistency with the General Plan's goal of creating pedestrian-friendly communities.
References to "Guidelines," are to the administrative guidelines for the implementation of CEQA. (Cal. Code Regs., tit. 14, § 15000 et seq. )
In addition to its EIR / CEQA claims, Save Civita maintains that the Project will have a deleterious effect on the pedestrian-friendly Civita community and that the City therefore violated the Planning and Zoning law in concluding that the Project is consistent with the City's General Plan. Finally, Save Civita maintains that the City acted in a quasi-adjudicatory capacity in certifying the FEIR and approving the Project and that a City Council member violated the public's procedural due process rights by improperly advocating for the Project prior to its approval.
In a published section of this opinion we conclude that the City did not violate Guidelines section 15088.5, subdivision (g) in failing to summarize revisions made to the Project's previously circulated programmatic draft EIR (PDEIR) in the RE-DEIR. (See pt. III.A.1, post. ) In a second published section, we conclude that the City Council acted in a quasi-legislative capacity in certifying the FEIR and approving the Project, and that this determination forecloses Save Civita's procedural due process claim. (See pt. III.C, post. ) In unpublished sections of this opinion, we reject the remainder of Save Civita's contentions. We affirm the trial court's judgment in favor of the City in its entirety. II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Civita
1. The Civita development
In 2005, Civita's developer sought approvals from the City to develop a large mixed-use development in Mission Valley that would contain residences, public recreational spaces, open lands, and retail and office space.
The FEIR described the Civita development in part as follows:
The Civita development was subject to a separate EIR, which we refer to as the Civita EIR.
"[The Civita] site encompasses approximately 225 acres immediately south of Phyllis Place. The [Civita development] includes ... a mixed-use, walkable community including residential, commercial, and parks and open space development."
The FEIR also described Civita in part as follows:
"The [Civita EIR] stated that the proposed project would include a development cap that would prohibit the project from exceeding 4,780 residential units, 603,000 square feet of retail space, and 620,000 square feet of office/business park uses. The [Civita development] would also include 31.8 acres of public and private parks, civic uses, open space and trails, and an optional school site. Construction of ... the southwestern portion of the site has been completed. Land uses within this area include currently occupied residences."
The Civita development is located primarily within the MVCP area, bordered on the south by Friars Road, on the north by Phyllis Place (within the SMCP area), on the east by interstate I-805, and on the west by Mission Center Road.
2. The Civita EIR's analysis of a potential road connection between Phyllis Place and Via Alta / Franklin Ridge Road
The Civita EIR analyzed a potential road connection from Phyllis Place to Via Alta / Franklin Ridge Road. Specifically, Alternative 4 of the Civita EIR—"Road Connection to Phyllis Place"—provided an analysis of the potential environmental impacts of the road connection. The analysis included tables describing projected traffic conditions with and without the proposed connection, which the Civita EIR summarized as follows:
"As shown in [various
tables], project traffic under this alternative would impact roadway segments and intersections similar to the proposed project. However, due to the different distribution of traffic associated with the Phyllis Place connection, traffic impacts under this alternative would occur at different locations; in other locations, impacts would be avoided. Although significant impacts are comparable, in general the redistribution of traffic to the Phyllis Place / I-805 interchange is beneficial to existing Mission Valley circulation streets where total vehicular trips are reduced, such as for Friars Road between SR-163 and I-15; Mission Center Road from Friars Road to I-8; and Qualcomm Way from Friars Road to I-8."
3. The City Council's approval of the Civita development and its direction to analyze a community plan amendment showing the road connection
In October 2008, the City Council approved the Civita development. As part of its approval, the City Council adopted a resolution (R-304297), directing staff to analyze an amendment to the SMCP and the City's General Plan to include a street connection between Phyllis Place and Friars Road. The resolution provided in relevant part:
Friars Road is a road located to the south of the Project that runs east and west. (See Appendix A, post. )
"Council directs staff to analyze the following issues in relation to the aforementioned street connection and land use plan amendments:
"1. Whether police and fire response times would be improved with the road connection.
"2. Whether the road connection could serve as an emergency evacuation route.
"3. Whether it is feasible to make the road available for emergency access only.
"4. Whether pedestrian and bicycle access would be improved by the street connection."
B. The Project
1. The PDEIR
In April 2016, the City issued the PDEIR. The PDEIR indicated that the Project was the adoption of an amendment "to the [SMCP] ... to include a street connection from Phyllis Place in Serra Mesa southward to the [Civita] Specific Plan area in Mission Valley."
2. The RE-DEIR
The City issued the RE-DEIR in March 2017. As discussed in greater detail in part III.A.1, post , the City provided the following explanation for its decision to recirculate an EIR:
"In light of the public comments received during public review of the [PDEIR], the construction of the roadway connection was determined to be foreseeable; therefore, a project-level analysis[ ] was conducted and included within the [RE-DEIR]. Further evaluation of the subsequent actions necessary to implement and construct the roadway connection was completed.
"This revised and recirculated [RE-DEIR] analyzes impacts at a project level to ensure that all potential significant environmental effects associated with the [P]roject are disclosed."
We discuss the distinction between a programmatic EIR and a project-level EIR in part III.A.1.c.i, post.
3. The FEIR
In August 2017, the City issued the FEIR for the Project. The FEIR describes the Project as follows:
"The proposed [P]roject consists of construction and operation of a four-lane major street, complete with bicycle lanes and pedestrian pathways, extending from Phyllis Place in Serra Mesa southward to Via Alta and Franklin Ridge Road in Mission Valley [citation].
"The proposed [P]roject would require an amendment to the [SMCP]. This amendment would require map and text changes to the plan to include the roadway connection as a four-lane major street and revise the Street Classification and the Bikeways and Pedestrian Walkway figures in the currently adopted [SMCP]."
4. Public review of the Project
The FEIR contains more than a hundred separate letters from the public commenting on the RE-DEIR. The comments, and the City's responses, span nearly a thousand pages in the administrative record. In addition to these comments and responses in the FEIR, two community planning groups reviewed the Project. In May of 2017, the Serra Mesa Community Planning Group (SMPG) voted unanimously to recommend denial of the Project. That same month, the Mission Valley Planning Group heard the item as an "informational item," but took no action on the item.
The City also held several public hearings on the Project. In August 2017, the City's Planning Commission held a public hearing and voted unanimously, with one member recusing, to recommend approval of the Project and certification of the FEIR. The following month, the City Council's Smart Growth & Land Use Committee held a public hearing and voted unanimously to recommend approval of the Project to the full City Council.
5. The City's certification of the FEIR and its approval of amendments to the SMCP and the City's General Plan
The City Council held a public hearing on the Project in October 2017. At the conclusion of the hearing, the City Council adopted two resolutions. One of the resolutions (R-311380) certified the FEIR and made related findings from the FEIR; adopted a statement of overriding considerations under CEQA for the Project; and adopted a mitigation, monitoring, and reporting program for the Project. The second resolution (R-311381) adopted an amendment to the SMCP and the City's General Plan to "identify a roadway connection from Phyllis Place in Serra Mesa southward to the boundary between the Serra Mesa and Mission Valley community planning areas."
Both resolutions were adopted with eight votes in favor and one vote against.
C. Procedural background
1. Save Civita's Petition / Complaint
In November 2017, Save Civita filed its Petition / Complaint. In a single cause of action styled as "Illegal Approval and Adoption of Project," Save Civita claimed that the City had violated CEQA ( § 21000 et seq. ) in several ways, including by failing to "provide adequate identification and analysis of the significant adverse environmental impacts, [and a] reasonable range of alternatives ...."
In this same cause of action, Save Civita further alleged that the City violated the Planning and Zoning Law ( Gov. Code, § 65000 et seq. ) in approving the Project because, according to Save Civita, the Project was not consistent with "the applicable general and specific plans and their components." In its prayer for relief, Save Civita sought various forms of relief, including a declaratory judgment stating that the City had failed to comply with applicable laws and injunctive relief prohibiting the City from taking any action to implement the Project without complying with all applicable laws.
2. Save Civita's supporting brief
Save Civita filed a brief in support of its Petition / Complaint. In its brief, Save Civita maintained that the City had violated CEQA in four ways: (1) the City failed to summarize revisions made to the previously circulated PDEIR in the RE-DEIR; (2) the FEIR failed to adequately analyze a reasonable range of alternatives; (3) the FEIR failed to analyze the Project's traffic impacts; (4) and the FEIR failed to analyze the Project's inconsistency with relevant land use plans.
In its brief, Save Civita also maintained that the City violated the Planning and Zoning Law in approving the Project. In support of this contention, Save Civita argued that the Project was inconsistent with the City of Villages strategy contained within the City's General Plan in that the Project was "neither pedestrian-friendly nor likely to reduce greenhouse-gas emissions."
Finally, Save Civita contended that the City had violated the public's right to due process and a fair hearing. In support of this claim, Save Civita asserted that "at least one City Council member had become a cheerleader for the Project [and had] decided he was going to approve the Project long before any evidence was presented to the City Council."
3. The City's opposition
The City filed an opposition brief to Save Civita's Petition / Complaint that addressed each of Save Civita's arguments and contended that it had not violated CEQA, the Planning and Zoning Law, or the public's right to due process and a fair hearing.
4. The administrative record
With its opposition, the City certified the voluminous administrative record, which consists of approximately 41,040 pages.
The City also lodged salient portions of the administrative record, including the following documents: resolutions from the City Council pertaining to the approval of the Civita development in 2008 and the City Council's approval of the Project in 2017; excerpts of the final EIR for the Civita development; the FEIR; an August 2017 memorandum for the City's Planning Department to the City Council recommending approval of the Project; images from a Planning Department presentation on the Project to the City Council; minutes from the City Council meeting approving the Project; excerpts from the transcript of the City Council meeting approving the Project; excerpts from the City's Street Design Manual; excerpts of traffic studies analyzing the Project; an August 2017 memorandum for the City's Planning Department to the City's Planning Commission recommending approval of the Project; an August 2017 letter from the State of California Department of Transportation expressing agreement with the "analysis and mitigation" contained in the RE-DEIR; excerpts from the transcript of the August 2017 City Planning Commission meeting on the Project; a 2012 notice of an EIR scoping meeting for the Project; excerpts from various land use planning and policy documents, including the City's General Plan; an e-mail related to the Project's "vehicle miles traveled" analysis contained in the FEIR; excerpts from a memorandum to the City Council pertaining to the Civita development; excerpts and notices from both the PDEIR and the RE-DEIR; and excerpts of a 2007 traffic impact study for the Civita development.
5. The trial court's ruling
The trial court issued a tentative ruling denying Save Civita's Petition / Complaint in its entirety. After a hearing, the trial court issued an order clarifying and confirming its tentative ruling in favor of the City.
In February 2020, the trial court entered a judgment in favor of the City.
6. The appeal
Save Civita timely appeals from the judgment.
III.
DISCUSSION
A. Neither the RE-DEIR nor the FEIR violated CEQA
Save Civita raises four claims related to the City's certification of an EIR for the Project. We consider each claim below.
1. The City did not violate Guidelines section 15088.5, subdivision (g) in failing to summarize revisions made to the previously circulated PDEIR, in the RE-DEIR
Save Civita claims that the City violated Guidelines 15088.5, subdivision (g) in failing to summarize revisions made to the previously circulated PDEIR, in the RE-DEIR. a. Relevant law
i. Guidelines section 15088.5
Guidelines section 15088.5 outlines the circumstances when a lead agency is required to recirculate an EIR (Guidelines, § 15088.5, subds. (a)–(b), (e) ), and describes how such recirculation is to occur (Guidelines, § 15088.5, subds. (c), (f), (g).)
Guidelines section 15088.5, subdivision (a) provides in relevant part:
"A lead agency is required to recirculate an EIR when significant new information is added to the EIR after public notice is given of the availability of the draft EIR for public review ... but before certification. As used in this section, the term ‘information’ can include changes in the project or environmental setting as well as additional data or other information."
(Accord, § 21092.1 ["When significant new information is added to an environmental impact report after notice has been given ... and consultation has occurred ..., but prior to certification, the public agency shall give notice again ..., and consult again ... before certifying the environmental impact report".)
Guidelines section 15088.5, subdivision (f) pertains to the manner by which a lead agency shall evaluate and respond to comments when an EIR is recirculated. Guidelines section 15088.5, subdivision (f)(1) provides:
"(1) When an EIR is substantially revised and the entire document is recirculated, the lead agency may require reviewers to submit new comments and, in such cases, need not respond to those comments received during the earlier circulation period. The lead agency shall advise reviewers, either in the text of the revised EIR or by an attachment to the revised EIR, that although part of the administrative record, the previous
comments do not require a written response in the final EIR, and that new comments must be submitted for the revised EIR. The lead agency need only respond to those comments submitted in response to the recirculated revised EIR."
Guidelines section 15088.5, subdivision (g) requires the lead agency to summarize the revisions made to a previously circulated draft EIR. The subdivision 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."
Guidelines section 15088.5, subdivision (c) provides, "If the revision is limited to a few chapters or portions of the EIR, the lead agency need only recirculate the chapters or portions that have been modified."
Guidelines section 15088.5, subdivision (f)(2) specifies how a lead agency shall evaluate and respond to comments in the event that only portions of an EIR are recirculated.
ii. Case law
Neither party has cited, and our own research has not uncovered, any case law interpreting or applying Guidelines section 15088.5, subdivision (g).
b. Standard of review
In Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 241 Cal.Rptr.3d 508, 431 P.3d 1151 ( Sierra Club ), the Supreme Court outlined the following principles concerning the standard of review to be applied to a claim that an EIR failed to perform its essential function of informing the public of issues raised by a proposed project:
"The ultimate inquiry, as case law and the CEQA guidelines make clear, is whether the EIR includes enough detail ‘to enable those who did not participate in its preparation to understand and to consider meaningfully the issues raised by the proposed project.’ [Citation]; see Berkeley Keep Jets Over the Bay Com. v. Board of Port Cmrs. [(2001)] 91 Cal.App.4th [1344, 1356, 111 Cal.Rptr.2d 598 ] [‘Whether an EIR will be found in compliance with CEQA involves an evaluation of whether the discussion of environmental impacts reasonably sets forth sufficient information to foster informed public participation and to enable the decision makers to consider the environmental factors necessary to make a reasoned decision.’]; Guidelines, § 15151 [‘An EIR should be prepared with a sufficient degree of analysis to provide decisionmakers with information which enables them to make a decision which intelligently takes account of environmental consequences.’].) The inquiry presents a mixed question of law and fact. As such, it is generally subject to independent review. However, underlying factual determinations—including, for example, an agency's decision as to which methodologies to employ for analyzing an environmental effect—may warrant deference. [Citations.] Thus, to the extent a mixed question requires a determination whether statutory criteria were satisfied, de novo review is appropriate; but to the extent factual questions predominate, a more deferential standard is warranted." ( Id. at p. 516, 241 Cal.Rptr.3d 508, 431 P.3d 1151.)
We apply this standard of review to Save Civita's claim, reviewing de novo both the meaning of the summarization requirement contained in Guidelines section 15088.5, subdivision (g) and the question of whether the "statutory criteria were satisfied ...." ( Sierra Club, supra , 6 Cal.5th at p. 516, 241 Cal.Rptr.3d 508, 431 P.3d 1151.) c. Factual and procedural background
Neither party points to any disputed factual questions relevant to Save Civita's claim that the City violated section 15088.5, subdivision (g).
i. The PDEIR and the RE-DEIR
A chapter of the PDEIR titled "Project Description," stated that the proposed Project consisted of a "community plan amendment to the [SMCP] to include a street connection from Phyllis Place, located in Serra Mesa, southward to the boundary of Serra Mesa and Mission Valley." (Italics added.) However, this chapter of the PDEIR also made clear the limited scope of the proposed project, stating:
"The City's action is only to amend the [SMCP]. The City is not proposing to construct or fund the roadway connection." (Italics added.)
In contrast, the "Project Description" chapter of the RE-DEIR states that the Project being analyzed consists of the construction of the road itself , stating, "The proposed [P]roject consists of construction and operation of a four-lane major street, complete with bicycle lanes and pedestrian pathways, extending from Phyllis Place in Serra Mesa southward to Via Alta and Franklin Ridge Road in Mission Valley ...."
A section of the Project Description chapter of the RE-DEIR (section 3.2) explained the genesis of this change, noting that the PDEIR had examined an amendment to the SMCP at a " ‘programmatic’ level," and that "[a]fter considering the comments received during the public review period, the City decided to analyze the road-connection with a project-level analysis." (Compare Guidelines, §§ 15161 ["project" EIR], 15148 ["program" EIR].) The Project Description stated further that revisions to the PDEIR caused the City to "replace the P[D]EIR with a project-level EIR and recirculate for a second public review." (Italics added.)
In Citizens for Responsible Equitable Environmental Development v. City of San Diego Redevelopment Agency (2005) 134 Cal.App.4th 598, 605, 36 Cal.Rptr.3d 249, this court noted that the Guidelines describe these two "different type[s]," of EIRs as follows:
"[T]he Guidelines describe several types of EIRs, which may be tailored to different situations. The most common is the project EIR, which examines the environmental impacts of a specific development project. (Guidelines, § 15161.) A quite different type is the program EIR, which ‘may be prepared on a series of actions that can be characterized as one large project and are related either: (1) Geographically, (2) As logical parts in the chain of contemplated actions, (3) In connection with issuance of rules, regulations, plans, or other general criteria to govern the conduct of a continuing program, or (4) As individual activities carried out under the same authorizing statutory or regulatory authority and having generally similar environmental effects which can be mitigated in similar ways.’ (Guidelines, § 15168, subd. (a); [citation].)"
The first page of the RE-DEIR is a Public Notice of Availability for Recirculation (the Notice), which also states that the PDEIR "has been revised to analyze impacts at a project level to ensure that all potential[ly] significant environmental effects associated with the [P]roject are disclosed, and further evaluation of the subsequent actions necessary to implement and construct the roadway connection is included." The Notice informed readers that comments on the PDEIR would not receive responses.
Section 1.4 of the RE-DEIR reiterated these aspects of the Notice.
The executive summary of the RE-DEIR reiterated that the EIR evaluated both "an amendment to the [SMCP]," and the "construction and operation of a four-lane major street, complete with bicycle lanes and pedestrian pathways, extending from Phyllis Place in Serra Mesa southward to Via Alta and Franklin Ridge Road in Mission Valley."
Chapter 4 of the RE-DEIR details the "History of Project Changes" stating:
"The [PDEIR] analyzed the programmatic action of the amendment to include Franklin Ridge Road in the Circulation Element of the [SMCP]. [¶] In light of the public comments received during public review of the [PDEIR], the construction of the roadway connection was determined to be foreseeable; therefore, a project-level analysis was conducted and included within the recirculated [RE-DEIR]. Further evaluation of the subsequent actions necessary to implement and construct the roadway connection was completed."
ii. The City states in the FEIR that it has complied with Guidelines section 15088.5, subdivision (g)
In response to the City's issuance of the RE-DEIR, the SMPG sent the City a letter containing 212 separately analyzed comments. One of the comments specifically alleged that the City had failed to comply with the summarization requirement contained in Guidelines section 15088.5, subdivision (g). In the FEIR, the City responded to this comment in relevant part as follows:
"The [RE-]DEIR complied with this requirement. A summary of the revisions made to the previously circulated [PD]EIR was provided in the Public Notice of Availability for Recirculation of an EIR and also within Chapter 3, Project Description : ‘After considering the comments received during the public review period, the City decided to analyze the road connection with a project–level analysis. The additional description and analysis warranted revisions to the [PDEIR], which in turn led the City to decide to replace the [PDEIR] with a project-level EIR and recirculate for a second public review.’ As the scope of analysis changed from a programmatic level (e.g., not including any specific roadway design, construction details) to a project level of analysis, the entire [PDEIR] necessarily warranted revisions throughout to reflect that detail. Furthermore, the [RE-]DEIR was in an entirely new format (e.g., font, numbering, figures) which would indicate that the entirety of the [PDEIR] had been revised."
An attorney representing the Serra Mesa Community Council reviewing the RE-DEIR also sent the City a letter asserting that the City had failed to comply with Guidelines section 15088.5, subdivision (g). The attorney stated the following:
"Please identify, by providing either, or both: (a) a list of material changes in the [P]roject design and/or study, and (b) an interlineated and strike-out version of the [RE-]DEIR and its appendices so that the public, third party agencies, and decisionmakers know what to focus on during their second reading and comments such that meaningful comment can be provided. (CEQA Guidelines § 15088, subds. (f)(1), (g))." (Italics omitted.)
The City responded in part to this comment by stating:
"The commenter also requests that the City provide a list of material changes to the [P]roject design and/or study as well as a strike-out version of the [PD]EIR so that interested parties ‘know what to focus on ... such that meaningful comment can be provided.’ To provide a strikeout version of the originally circulated [PD]EIR or a more detailed summary
that contains what would amount to a long list of changes between versions would provide no additional meaningful information to the reader and decision-maker other than to support the statement already in the Public Notice and [PD]EIR that substantial revisions had occurred since the previously circulated draft. Moreover, in practical terms, if the document was provided in strikeout/underline format, as suggested, nearly the entire document would be shown as strikeout/underline. The result would be a recirculated [draft EIR] of limited informational value to the majority of readers because of its near illegible condition. In addition, because the entire [PD]EIR was completely overhauled, a summary statement indicating that the [PD]EIR was converted from a high level program analysis to a detailed project level analysis is a sufficient summary because it accurately conveys to the reader and decision-maker the significant changes that occurred since the previous review. Finally, the public review was 60 days, which is more than 15 days beyond the 45 days required by CEQA and which would provide more time than required by State law for the public to review the recirculated [RE-]DEIR in its entirety."
iii. Save Civita's claim in the trial court
Save Civita contended that the City had failed to comply with Guidelines section 15088.5, subdivision (g), arguing, "neither the [RE-]DEIR nor any attachment to it summarizes the revisions made." Save Civita contended that "[r]equiring members of the public to rifle through these two voluminous, technical documents to try and figure out the differences was an obstacle to informed discussion."
The City responded by contending that it had adequately summarized the changes to the PDEIR in the RE-DEIR, arguing that its "summarization is sufficient to appri[s]e the reader that this is an entirely different level of analysis and revisions are throughout." The City also argued that "[n]o prejudice ha[d] been shown," from any insufficiency in the RE-DEIR's summary of changes because "public comment was vigorous."
The City stated that it summarized the revisions to the PDEIR in the following sections of the RE-DEIR, "[Section] 1.4[,] Availability of this EIR, [Section] 3.2[,] Project Background, [Chapter] 4[,] History of Project Changes." We have summarized those provisions in part III.A.1.c.i, ante.
The trial court issued a tentative ruling stating that the City "arguably" had failed to summarize the revisions made to the PDEIR in the RE-DEIR as required by Guidelines section 15088.5, subdivision (g), but concluding that any such failure was not prejudicial:
"The City was required to reference, discuss or list in some logical, meaningful way the changes made between the [PDEIR] and the [RE-D]EIR. Arguably, the City did not do this. The references cited by the City do not alert the reader as to the specific changes. On the other hand, this is not a situation where the re-circulation was driven by changes in the facts or conclusions reached within the EIR. The final EIR underwent a structural change, but maintained the same discussion regarding impacts and mitigation, and relied on the same data. Importantly, the City's failure was not prejudicial. There is no evidence suggesting the public was deprived of a meaningful opportunity to discuss and critique the [P]roject. Re-circulation was not used as an opportunity to insert new conclusions as to significant impacts on the community. Re-circulation did not
prevent the relevant decision makers from reaching an informed final decision. There is no evidence that the City's failure to comply was done in bad faith. Therefore, any violation of Guidelines section 15088.5 was not prejudicial and does not constitute a basis on which to grant this Petition."
At the hearing on Save Civita's writ petition, Save Civita argued that there had been numerous substantive changes to the PDEIR, and Save Civita's counsel reviewed several of those changes at the hearing. For example, Save Civita's counsel noted that the PDEIR determined that there was "no environmentally superior alternative as compared to the proposed community plan amendment," while the FEIR concluded that "the bicycle, pedestrian and emergency access only alternative is ... the environmentally superior alternative." Save Civita's counsel argued that, in light of all the revisions to the PDEIR, the City's failure to summarize such changes was prejudicial because the "information [was] necessary to an informed decision."
While Save Civita's counsel compared the PDEIR with the FEIR rather than with the RE-DEIR, it appears that the FEIR and the RE-DEIR are not materially distinct with respect to any of the changes referenced by counsel.
The City argued:
"[L]ooking at the merits of the discussion on section 15088.5 [, subdivision] (g) CEQA guidelines, this is to summarize the revisions made. That's the requirement under CEQA. Summarize the revisions made. In this particular instance, these weren't just revisions, it was an entire structural redo. As a result of scoping comments that the public made and community interaction, they wanted more information. So instead of giving them a [programmatic] EIR, we went back and did a project level EIR.... The intent we believe of the Guidelines is that the public gets more information and that's what we tried to do at this point, not a reduction of information. At some point when you do red line drafts, which I'm sure your honor knows, it gets so confusing you can't even tell what has been added and what has been not added.
"Also in this regard, there's no evidence to suggest the public was deprived of a meaningful opportunity to discuss the [P]roject."
After the hearing on Save Civita's writ petition, the trial court confirmed its tentative ruling and "clarif[ied]" that ruling, stating the following:
"Regarding the re-circulation issue, the argument presented by [Save Civita] made several references to the administrative record that were not contained in [Save Civita's] briefing.[ ] These references are improper and cannot be considered by the Court because ... [the] City has not had an opportunity to address or rebut these additional citations. To some extent, these additional references support the City's argument: the [RE-D]EIR contained significant organizational changes such that it would have been confusing, if not futile to attempt to list or ‘redline’ each change. Ultimately, no prejudice was incurred. The public was given ample opportunity to review and comment on the revised project level EIR. The City did not seek to mislead the public [as] to whether it was necessary to review or comment on the revised project level EIR. The administrative
It appears that the trial court was referring to the substantive changes to the PDEIR that Save Civita's counsel outlined at the hearing.
record contains evidence supporting the City's good faith understanding that a revised and re-circulated project level EIR would enhance the ability of the public and decision makers to understand and act on the [P]roject."
d. Analysis
Guidelines section 15088.5, subdivision (g) required the City to "summarize the revisions made to the previously circulated draft EIR."
As outlined in detail in part III.A.1.c.i, ante , statements in the "Project Description" and the "History of Project Changes" chapters of the RE-DEIR summarized the changes to the PDEIR by stating that: (1) the RE-DEIR "replaced" the PDEIR; (2) the Project had changed from a community plan amendment to an amendment and the construction of a major road, and (3) while the PDEIR had analyzed only "the programmatic action of the amendment to include Franklin Ridge Road in the Circulation Element of the Serra Mesa Community Plan," the RE-DEIR contained a "project-level analysis," of the foreseeable construction of the new road. In short, these summary provisions of the RE-DEIR informed the public that the revisions to the PDEIR were extensive, and that the PDEIR had been "replaced" by the RE-DEIR. As the City explained in the FEIR, given the extensive nature of the changes, "if the document was provided in strikeout/underline format, as suggested, nearly the entire document would be shown as strikeout/underline."
In interpreting the summarization mandate of Guidelines section 15088.5, subdivision (g), it is important to recall the context in which that mandate arises. Section 15088.5, subdivision (a) requires the recirculation of an EIR where "significant new information is added to the EIR." Such new information can "include changes in the project." The "History of Project Changes," chapter of the RE-DEIR apprised the public that, in the wake of the issuance of the PDEIR, the City had conducted "further evaluation of the subsequent actions necessary to implement and construct the roadway connection." Thus, the RE-DEIR summarized the changes in the Project that had occurred.
The summarization requirement in section 15088.5, subdivision (g) also must be interpreted in connection with section 15088.5, subdivision (f), which requires that an agency inform the public that "[w]hen an EIR is substantially revised and the entire document is recirculated," comments on a prior EIR will not receive a response. The City's compliance with section 15088.5, subdivision (f) further alerted the public that substantial changes had been made to the PDEIR.
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 requirement that it "summarize the revisions made to the previously circulated draft EIR." ( § 15088.5, subd. (g).)
However, even if we were to assume that the City failed to comply with section 15088.5, subdivision (g), we agree with the trial court that any such failure was not prejudicial. Save Civita argues, " ‘An EIR will be found legally inadequate – and subject to independent review for procedural error – where it omits information that is both required by CEQA and necessary to informed discussion. ’ " (Italics added, citing California Native Plant Society v. City of Santa Cruz (2009) 177 Cal.App.4th 957, 986, 99 Cal.Rptr.3d 572 ; see also Sierra Club, supra , 6 Cal.5th at p. 515, 241 Cal.Rptr.3d 508, 431 P.3d 1151 [an agency's "failure to comply with the law subverts the purposes of CEQA" and constitutes prejudicial error if the agency "omits material necessary to informed decisionmaking and informed public participation " (italics added)].)
Save Civita argues that the City's failure to summarize the changes in the RE-DEIR from the PDEIR had "two detrimental consequences," namely, it forced readers to "leaf through thousands of pages," and caused "readers to have the mistaken belief" that the two EIRs address the same project. We are not persuaded. With respect to the first consequence, the need to review the entire RE-DEIR was driven by the nature of the changes (i.e., the changes to the PDEIR were wholesale and material). As to the second consequence, no reasonable reader could have been misled as to the distinction between the nature of the projects evaluated in the PDEIR and the RE-DEIR, respectively. The RE-DEIR clearly and expressly stated that, while the PDEIR had evaluated a community plan amendment, the RE-DEIR evaluated the amendment and the construction of a major road.
Save Civita also argues that the City's failure to provide a summary was an "obstacle to informed discussion," but the administrative record indicates that there was ample and vigorous public discussion of the RE-DEIR. We agree with the trial court that such discussion was not hampered by the absence of a summary of the changes in the RE-DEIR. Save Civita also argues that failing to provide a summary required commentators to either resubmit letters or to "start over," with the latter option "being the non-obvious option," since the RE-DEIR indicated that it was a recirculated draft EIR. However, as discussed above, the City informed the public that comments on the PDEIR would not receive responses. Thus, the public was on notice of the need to resubmit comments or to submit new comments.
In sum, we conclude that the City did not violate Guidelines section 15088.5, subdivision (g) in failing to summarize the changes from the PDEIR to the RE-DEIR. We further conclude that, even assuming the City did violate Guidelines section 15088.5, subdivision (g), such error was not prejudicial because any failure to summarize did not deprive the public of a meaningful opportunity to discuss and critique the Project.
2.-4. B. The City did not violate the Planning and Zoning law
See footnote *, ante .
See footnote *, ante .
C. The City Council, in certifying the FEIR and approving the Project, acted in a quasi-legislative capacity and therefore was not subject to procedural due process requirements applicable to quasi-adjudicatory hearings
Save Civita claims that the City's certification of the FEIR and its approval of amendments to the SMCP and City General Plan were quasi-adjudicatory decisions. Save Civita further contends that the City violated the public's procedural right to due process and a fair hearing because a member of the City Council who voted to approve the FEIR and the Project was, according to Save Civita, "a cheerleader for the Project and decided he was going to approve the Project long before any evidence was presented to the [Smart Growth & Land Use Committee] or City Council."
Specifically, Save Civita argues, "The certification of an EIR and attendant approval of a project are reviewed under the administrative-mandamus procedures under Code of Civil Procedure Section 1094.5. See ... § 21168." " ‘ "[W]hen functioning in such an adjudicatory capacity, the city council must be ‘neutral and unbiased.’ " ’ "
As explained in part III.C.2, post , quasi-adjudicative decisions are reviewed by way of administrative mandamus pursuant to Code of Civil Procedure Section 1094.5 and section 21168. Quasi-legislative decisions are reviewed by way of traditional mandamus pursuant to section Code of Civil Procedure Section 1085 and section 21168.5.
While this appeal was pending, we requested that the parties file supplemental briefs addressing the following two questions:
"1. Were the City's certification of the [F]EIR and approval of the amendments to planning documents in this case quasiadjudicatory decisions, reviewable pursuant to Public Resources Code section 21168 and Code of Civil Procedure section 1094.5 or quasi-legislative decisions, reviewable pursuant to Public Resources Code section 21168.5 and Code of Civil Procedure section 1085 ?"
"2. Would a determination that the City was acting in a quasilegislative capacity foreclose appellant's procedural due process claim?"
We have reviewed the parties' briefing in addressing Save Civita's claim.
The threshold question of whether the City acted in a quasi-adjudicatory capacity in certifying the FEIR and approving amendments to planning documents raises a question of law. We review this question of law de novo. (See Abatti v. Imperial Irrigation Dist. (2012) 205 Cal.App.4th 650, 668, 140 Cal.Rptr.3d 647 [questions of law arising in CEQA cases are reviewed de novo).] 1. Factual and procedural background
In its brief in support of a petition for writ of mandamus, Save Civita cited Code of Civil Procedure section 1094.5, subdivision (b), and maintained that the City had deprived the public of its right to a fair trial. In support of this contention, Save Civita noted that, after the RE-DEIR was released for public review and prior to public hearings on the Project, City Council Member Scott Sherman's staff sent e-mails to various associations seeking support for the Project and, on at least one occasion, offered to write a letter of support for the Project on behalf of a group. In addition, Save Civita noted that on the day after the Planning Commission recommended approval of the Project, a staff member from Council Member Sherman's office sent out an e-mail to those who had attended the meeting thanking them for their support and seeking their support in future proceedings related to the Project. Save Civita claimed that these actions demonstrated that Council Member Sherman did not act in an impartial matter at the City Council hearing on the Project. Accordingly, Save Civita argued, "the hearing failed to comport with the fair-hearing aspect of due process."
We discuss Code of Civil Procedure section 1094.5 in part III.C.2.a.ii, post .
In its opposition, the City maintained that Save Civita had not "identified any actions by Mr. Sherman that approach establishing an ‘unacceptable probability of actual bias.’ " In support of this contention, the City noted that Save Civita had "only identifie[d] several emails sent, not by Mr. Sherman, but by his district office staff generally seeking support for the Project." According to the City, such evidence did not meet the "exacting standard to prove actual bias."
After further briefing and a hearing, the trial court rejected Save Civita's argument in its order denying its Petition / Complaint. The trial court reasoned in part:
"[Save Civita] has not identified actions by Councilperson Sherman that establish
a probability of actual bias. [Save Civita] does not identify any concrete facts showing actual bias. Mr. Sherman's office was entitled to communicate with constituents and take a position regarding approval of the connector road. Mr. Sherman's motives are irrelevant when assessing the validity of the [P]roject approval."
2. Governing law
a. Quasi-legislative and quasi-adjudicative decisions
i. The distinction between quasi-legislative and quasi- adjudicative acts
"City council members wear multiple hats. It is commonly understood that they function as local legislators. But sometimes they act in a quasi-adjudicatory capacity similar to judges. ( Woody's Group, Inc. v. City of Newport Beach (2015) 233 Cal.App.4th 1012, 1021, 183 Cal.Rptr.3d 318 ( Woody's ).) ... [¶ ] ‘[W]hen functioning in such an adjudicatory capacity , the city council must be "neutral and unbiased." ’ ( Woody's, supra , 233 Cal.App.4th at p. 1021, 183 Cal.Rptr.3d 318 [citation]; see also Asimow et al., Cal. Practice Guide: Administrative Law (The Rutter Group 2019) ¶ 3:426, at p. 3-70 [‘A decisionmaker must be unbiased (meaning that the decisionmaker has no conflict of interest, has not prejudged the specific facts of the case, and is free of prejudice against or in favor of any party)’].)" ( Petrovich Development Co., LLC v. City of Sacramento (2020) 48 Cal.App.5th 963, 973, 262 Cal.Rptr.3d 331 ( Petrovich ), italics altered.)
In Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 52 Cal.Rptr.2d 518 ( Beck Development Co. ) the court summarized the distinction between quasi-legislative and quasi-adjudicative actions, and noted that principles of procedural due process do not apply to quasi-legislative actions:
"In considering the applicability of due process principles, we must distinguish between actions that are legislative in character and actions that are adjudicatory.... [T]he terms ‘quasi-legislative’ and ‘quasi-judicial’ are used to denote these differing types of action. Quasi-legislative acts involve the adoption of rules of general application on the basis of broad public policy, while quasi-judicial acts involve the determination and application of facts peculiar to an individual case. [Citations.] Quasi-legislative acts are not subject to procedural due process requirements [ ] while those requirements apply to quasi-judicial acts regardless of the guise they may take...." ( Id. at p. 1188, 52 Cal.Rptr.2d 518, italics added.)
The right to an adjudicator who has not "prejudged the specific facts of the case,"—the right that Save Civita claims was violated in this case—is a right that attaches when local legislators "act in a quasi-adjudicatory capacity similar to judges." (Petrovich, supra , 48 Cal.App.5th at p. 973, 262 Cal.Rptr.3d 331.)
The principle that procedural due process protections do not apply to quasi-legislative action is well established. (See, e.g., Western Oil & Gas Assn. v. Air Resources Board (1984) 37 Cal.3d 502, 525, 208 Cal.Rptr. 850, 691 P.2d 606 [no constitutional issue of procedural due process was presented because Board was acting in a quasi-legislative capacity]; Horn v. County of Ventura (1979) 24 Cal.3d 605, 612–613, 156 Cal.Rptr. 718, 596 P.2d 1134 [stating that it is "well settled ... that only those governmental decisions which are adjudicative in nature are subject to procedural due process principles. Legislative action is not burdened by such requirements. [Citations]"].) " ‘Legislative action generally is not governed by these procedural due process requirements because it is not practical that everyone should have a direct voice in legislative decisions; elections provide the check there. [Citations.]’ " ( San Francisco Tomorrow v. City and County of San Francisco (2014) 229 Cal.App.4th 498, 526, 176 Cal.Rptr.3d 430.)
ii. Judicial review of quasi-legislative and quasi- adjudicative acts
Quasi-legislative actions are generally reviewed by a proceeding in ordinary or traditional mandate ( Code Civ. Proc., § 1085 ), in which judicial review is confined to the question whether the classification is arbitrary, capricious, or without reasonable or rational basis. ( County of Los Angeles v. City of Los Angeles (2013) 214 Cal.App.4th 643, 648–655, 154 Cal.Rptr.3d 263.)
Administrative mandamus ( Code Civ. Proc., § 1094.5 ) is available only when "by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer ...." (Id. , subd. (a); see, e.g., Citizens for East Shore Parks v. State Lands Com. (2011) 202 Cal.App.4th 549, 571, 136 Cal.Rptr.3d 162 [" ‘[T]he intent of the Legislature in enacting [ Code of Civil Procedure section] 1094.5 was to authorize "... judicial review... of an adjudicatory or quasi-judicial function" ’ "].)
b. Judicial review under CEQA
i. Statutory framework
Sections 21168 and 21168.5 outline the manner by which a party may obtain judicial review of an agency's decision under CEQA. Except for proceedings under section 21168 to challenge quasi-adjudicatory decisions, section 21168.5 governs judicial review of all decisions by a public agency under CEQA. Section 21168.5 provides in relevant part:
"In any action or proceeding, other than an action or proceeding under Section 21168, to attack, review, set aside, void or annul a determination, finding, or decision of a public agency on the grounds of noncompliance with this division, the inquiry shall extend only to whether there was a prejudicial abuse of discretion. Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence."
Section 21168 governs judicial review of a public agency's CEQA quasi-adjudicative decisions:
"Any action or proceeding to attack, review, set aside, void or annul a determination, finding, or decision of a public agency, made as a result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken and discretion in the determination of facts is vested in a public agency, on the grounds of noncompliance with the provisions of this division shall be in accordance with the provisions of Section 1094.5 of the Code of Civil Procedure.
"In any such action, the court shall not exercise its independent judgment on the evidence but shall only determine whether the act or decision is supported by substantial evidence in the light of the whole record."
ii. Western States
In Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 566, 38 Cal.Rptr.2d 139, 888 P.2d 1268 ( Western States ), the Supreme Court outlined the distinction between administrative and traditional mandamus and between review under sections 21168 and 21168.5 as follows:
"A party may seek to set aside an administrative decision for failure to comply with CEQA by petitioning for either administrative mandamus ( Code Civ. Proc., § 1094.5 ) or traditional mandamus (id. , [Code Civ. Proc.,] § 1085 ). A petition for administrative mandamus is appropriate when the party seeks review of a ‘determination, finding, or decision of a public agency, made as a result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken and discretion in the determination of facts is vested in a public agency, on the grounds of noncompliance with [CEQA],’ generally referred to as an ‘adjudicatory’ or ‘quasi-judicial’ decision. (... § 21168 ; see Langsam v. City of Sausalito (1987) 190 Cal.App.3d 871, 879, 235 Cal.Rptr. 672 [‘It is well established that the intent of the Legislature in enacting [ Code of Civil Procedure section] 1094.5 was to authorize "... judicial review only of the exercise by an administrative agency of an adjudicatory or quasi-judicial function." ’]; see also Cal. Administrative Mandamus (Cont.Ed.Bar 1989) § 1.1, p. 2 [administrative mandamus is the ‘procedure used to obtain judicial review of adjudicative decisions (i.e., decisions that determine what the facts are in relation to specific private rights or interests)’].) A petition for traditional mandamus is appropriate in all other actions brought ‘to attack, review, set aside, void or annul a determination, finding, or decision of a public agency on the grounds of noncompliance with [CEQA].’ [Citations.]" ( Western States, supra , at pp. 566–567, 38 Cal.Rptr.2d 139, 888 P.2d 1268.)
The Western States court specifically rejected the argument that review could be had under section 21168 whenever an agency was required by law to hold a hearing on a matter. ( Western States, supra , 9 Cal.4th at p. 567, 38 Cal.Rptr.2d 139, 888 P.2d 1268.) Instead, the Western States court made clear that review under section 21168 is proper only when an agency acted in a quasi-adjudicatory capacity, reasoning in part:
"When the Legislature drafted ... section 21168 in 1972, it borrowed the words, ‘made as [a] result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken and discretion in the determination of facts is vested in [a public agency],’ from Code of Civil Procedure section 1094.5, subdivision (a). It was well established in 1972 that an administrative mandamus action under Code of Civil Procedure section 1094.5 was not the proper vehicle to challenge a quasi-legislative administrative decision even if the agency was required by law to hold a hearing as part of its rulemaking procedures. [Citation.] We assume that when the Legislature chose to incorporate the language of Code of Civil Procedure section 1094.5 into ... section 21168, it intended that language to have the same meaning and be construed and applied in the same way as the courts had done up to that point. [Citation.]" ( Western States, supra , at p. 568, 38 Cal.Rptr.2d 139, 888 P.2d 1268.)
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. (See Cal. Administrative Mandamus (3d ed. Cal CEB) Administrative Mandamus, § 5.19 [describing as "quasi-legislative and hence subject to review under [ Code of Civil Procedure section] 1085," a "[CEQA] decision, such as certification of an EIR, when the underlying decision is quasi-legislative, such as adoption of an ordinance, rule, regulation, or policy," citing Western States, supra , 9 Cal.4th at p. 566, 38 Cal.Rptr.2d 139, 888 P.2d 1268 ].)
In Madera Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4th 48, 131 Cal.Rptr.3d 626 ( Madera ), the Court of Appeal concluded that a plaintiffs' petition for writ of mandate challenging a local agency's certification of an EIR challenged a quasi-legislative action:
"The acts of County's board of supervisors in (1) certifying the final EIR and (2) approving an ordinance that adopted the Tesoro Viejo specific plan and related rezoning constituted legislative and quasi-legislative decisions. In Yost v. Thomas (1984) 36 Cal.3d 561 [205 Cal.Rptr. 801, 685 P.2d 1152] [( Yost )], the California Supreme Court stated that it had ‘no doubt’ that ‘the adoption of a specific plan is to be characterized as a legislative act.’ ( Id. at p. 570 [205 Cal.Rptr. 801, 685 P.2d 1152].) It also stated that ‘the rezoning of land is a legislative act ....’ ( Ibid. )" ( Id. at p. 75, 131 Cal.Rptr.3d 626.)
The Madera court continued:
"In this case, plaintiffs' petition for a writ of mandamus is properly classified as a petition for traditional mandamus (1)
subject to the procedures set forth in Code of Civil Procedure section 1085 and (2) reviewed under the standards contained in ... section 21168.5. [Citation.] This conclusion is not controversial, as a vast majority of proceedings challenging agency action for violating CEQA are treated as traditional mandamus reviewed under section 21168.5." ( Madera, supra , 199 Cal.App.4th at p. 76, 131 Cal.Rptr.3d 626.)
Similarly, in Citizens Opposing a Dangerous Environment v. County of Kern (2014) 228 Cal.App.4th 360, 174 Cal.Rptr.3d 683, the Court of Appeal stated that a challenge to the certification of an EIR containing a particular mitigation measure was "as one for a writ of traditional mandamus under section 21168.5," because "the challenged agency decision is legislative in character." ( Id. at p. 365, fn. 5, 174 Cal.Rptr.3d 683.)
c. Relevant law with respect to whether the underlying actions analyzed in the FEIR are quasi-legislative or quasi- adjudicatory
The FEIR analyzed two underlying actions to be taken by the City: (1) the approval of the building of the road and; (2) the amendment of planning documents to show the proposed roadway.
The FEIR's "Project Description," stated in relevant part:
"The proposed [P]roject consists of construction and operation of a four-lane major street .... [¶] The proposed [P]roject would require an amendment to the Serra Mesa Community Plan."
The FEIR also indicated that, although it was "reasonably foreseeable that the roadway could be proposed and implemented without further discretionary review if the proposed [P]roject were to be approved and this [FEIR] were to be certified," the City was not "at this time," "proposing to construct or fund the roadway construction." (Underscore omitted.) The FEIR stated that the City was "only ... analyz[ing] the environmental effects of [the road's] construction and operation, as directed by the City Council," and that, "[t]he [Civita] developer or another entity could implement the proposed [P]roject." (Underscore omitted.)
i. An agency's decision to approve the building of a road is a quasi-legislative act
In Save Lafayette Trees v. East Bay Regional Park Dist. (2021) 66 Cal.App.5th 21, 52–56, 280 Cal.Rptr.3d 679 ( Save Lafayette Trees ) the Court of Appeal provided an extensive discussion of the distinction between land use decisions that are legislative in nature and those that are adjudicative. The Save Lafayette Trees court noted that, where an agency has to consider "a broad spectrum of community costs and benefits which cannot be limited to ‘facts peculiar to the individual case,’ " the agency acts in a legislative manner. ( Save Lafayette Trees, supra , at p. 56, 280 Cal.Rptr.3d 679 ; quoting Oceanside Marina Towers Assn. v. Oceanside Community Development Com. (1986) 187 Cal.App.3d 735, 231 Cal.Rptr. 910 ( Oceanside Marina Towers ) [concluding that agencies' CEQA decision pertaining to relocation of railroad switchyard was legislative in nature because "like any other decision regarding the location of a public improvement," ( id. at p. 747, 231 Cal.Rptr. 910 ) the agencies were required to consider numerous interests in selecting location, and "[a]lthough these types of decisions have substantial impact on surrounding properties, they have consistently been held to be ‘legislative’ acts exempt from due process hearing requirements" ( id. at p. 745, 231 Cal.Rptr. 910 )].)
Among the cases cited by the Save Lafayette Trees court is Quinchard v. Board of Trustees (1896) 113 Cal. 664, 669, 45 P. 856 ( Quinchard ), in which the California Supreme Court concluded that "[w]hether an existing street shall be improved," was a legislative question, reasoning:
"Whether an existing street shall be improved, is a question to be addressed to the governing body of a municipality in its legislative capacity, and its determination upon that question, as well as upon the character of the improvement to be made, is a legislative act. [Citations.] The act does not cease to be legislative because the members of the city council are required to exercise their judgment in determining whether the improvement shall be made. The judgment which they exercise in ordering the improvement is not a determination of the rights of an individual under existing laws, but is the conclusion or opinion which they form in the exercise of the discretionary power that has been [e]ntrusted to them, and upon a consideration of the public welfare and demands for which they are to provide."
Quinchard is consistent with other California Supreme Court case law stating that a governmental decision to approve road construction is legislative in nature. (See Brown v. Board of Supervisors (1899) 124 Cal. 274, 277–278, 57 P. 82 ["The act of the board of supervisors in determining whether a street shall be opened or closed, or widened or contracted, or otherwise improved, is a legislative act performed in the exercise of the power which has been conferred upon the municipality by the legislature to enable it to provide for the welfare of its citizens"]; accord Wheelright v. County of Marin (1970) 2 Cal.3d 448, 452, 458, 85 Cal.Rptr. 809, 467 P.2d 537 [concluding that an ordinance approving "a precise development plan for the construction of the Tennessee Valley access road," was a legislative act because "[r]oadways are of sufficient public interest and concern to weight the scales in favor of construing this ordinance as being legislative"].)
ii. An agency's amendment of planning documents is a quasi-legislative act
An agency's act in adopting or amending a general or specific plan is a legislative act. ( Yost, supra , 36 Cal.3d 561, 205 Cal.Rptr. 801, 685 P.2d 1152.) In reaching this conclusion, the Yost court reasoned in part:
"The adoption of a general plan is a legislative act [Citation] ‘The amendment of a legislative act is itself
a legislative
act’ [citation] and the amendment of a general plan is thus a legislative act .... [Citation.] Therefore, the amendments to [city's] general plan were legislative acts .... [¶] This leaves the question whether the adoption of a specific plan is to be characterized as a legislative act. We have no doubt that the answer is affirmative. Certainly[,] such action is neither administrative nor adjudicative. [Citations.] On the other hand the elements of a specific plan are similar to those found in general plans or in zoning regulations—the siting of buildings, uses and roadways; height, bulk and setback limitations; population and building densities; open space allocation. [Citation.] The statutory procedure for the adoption and amendment of specific plans is substantially similar to that for general plans [citation]. It appears therefore that the legislative aspects of a specific plan are similar to those of general plans." ( Id. at p. 570, 205 Cal.Rptr. 801, 685 P.2d 1152.)
In Sierra Club v. Gilroy City Council (1990) 222 Cal.App.3d 30, 271 Cal.Rptr. 393, the Court of Appeal applied Yost in concluding that, because "[t]he amendment of a general plan has been held to be a quasi-legislative action," judicial review of a CEQA decision pertaining to such action, "is governed by section 21168.5." ( Sierra Club v. Gilroy City Council, supra , at p. 39, 271 Cal.Rptr. 393.)
3. Application
In order to determine whether the City's certification of the FEIR and its approval of amendments to the SMCP and City's General Plan were quasi-adjudicatory acts, and thus subject to procedural due process requirements as Save Civita maintains, we must consider the nature of the acts undertaken by the City. (See Western States, supra , 9 Cal.4th at pp. 566–567, 38 Cal.Rptr.2d 139, 888 P.2d 1268 [stating that whether a petition challenging an agency's action for failing to comply with CEQA sounds in traditional or administrative mandate is determined by whether the agency's action was quasi-adjudicative or quasi-legislative]; Save Lafayette Trees, supra , 66 Cal.App.5th at p. 52, 280 Cal.Rptr.3d 679 [in determining whether party could properly allege procedural due process claim against agency, Court of Appeal evaluated whether agency's action was quasi-adjudicatory]).
a. The City's approval of amendments to the SMCP and City's General Plan
Considering the latter issue first, it appears clear that the City's approval of amendments to the SMCP and City's General Plan are quasi-legislative actions, because such actions "involve the adoption of rules of general application on the basis of broad public policy." ( Beck Development Co., supra , 44 Cal.App.4th at p. 1188, 52 Cal.Rptr.2d 518.) Indeed, as noted, the California Supreme Court has concluded that a governmental entity's action in adopting or amending a general or specific plan is clearly a legislative act ( Yost, supra , 36 Cal.3d at pp. 570–571, 205 Cal.Rptr. 801, 685 P.2d 1152 ; see also, e.g., The Park at Cross Creek, LLC v. City of Malibu (2017) 12 Cal.App.5th 1196, 1204, 220 Cal.Rptr.3d 393 ["A city's or county's adoption of a general plan for its physical development is a legislative act. [Citations.] Adoption or amendment of a specific plan for the systematic implementation of the general plan is also a legislative act"].)
In its supplemental brief, Save Civita cites Rural Landowners Assn. v. City Council (1983) 143 Cal.App.3d 1013, 1018, footnote 4, 192 Cal.Rptr. 325 ( Rural Landowners ) and Friends of the Old Trees v. Department of Forestry & Fire Protection (1997) 52 Cal.App.4th 1383, 1390, footnote 5, 61 Cal.Rptr.2d 297 ( Friends of the Old Trees ), in support of its contention that the City's approval of amendments to the SMCP and City's General Plan were quasi-adjudicatory because provisions of City and state law require public hearings before the adoption of such amendments. Neither case supports Save Civita's position.
In Rural Landowners, supra , 143 Cal.App.3d at page 1018, footnote 4, 192 Cal.Rptr. 325, the Court of Appeal stated, without analysis, that judicial review was governed by the administrative mandamus procedures of section 21168 because "[t]he actions under consideration by the City (general plan amendment, prezoning, tentative map approval) required public hearings." However, subsequent to the decision in Rural Landowners , as explained in part III.C.2.b.ii, ante , in Western States , the Supreme Court specifically rejected the notion that section 21168 applies whenever an agency is required by law to hold a hearing. ( Western States, supra , 9 Cal.4th at p. 567, 38 Cal.Rptr.2d 139, 888 P.2d 1268 [explaining that the view that section 21168 applies whenever an agency is required to hold a hearing was incorrect as a matter of statutory interpretation].) Thus, even assuming that Save Civita is correct that the City was required to hold a hearing before adopting the amendments, this fact does not demonstrate that the City's action was quasi-adjudicatory. Thus, to the extent that Rural Landowners, supra , at page 1018, footnote 4, 192 Cal.Rptr. 325 suggests that a general plan amendment is reviewable pursuant to section 21168 because an agency is required by law to hold a hearing, it is no longer good law in the wake of Western States. (See Kostka & Zischke, Practice Under the California Environmental Quality Act, supra , § 23.44 [stating that " Western States implicitly overrules" decisions such as Rural Landowners, supra , at p. 1018, footnote 4, 192 Cal.Rptr. 325, in which courts have concluded that section 21168 applied because the agency held a hearing mandated by law].)
Save Civita cites to provisions of the San Diego Municipal Code, a City policy manual, and provisions of the Government Code in support of the proposition that "all plan amendments are required to be brought to a public hearing." (Boldface omitted.) However, Save Civita fails to demonstrate that any of the public hearings referenced in these provisions are adjudicative hearings under Western States . (See Western States, supra , 9 Cal.4th at p. 567, 38 Cal.Rptr.2d 139, 888 P.2d 1268 [stating that "administrative mandamus is the ‘procedure used to obtain judicial review of adjudicative decisions (i.e., decisions that determine what the facts are in relation to specific private rights or interests),’ " and noting that administrative mandamus is not the proper method to challenge "a quasi-legislative administrative decision even if the agency was required by law to hold a hearing as part of its rulemaking procedures " (id . at p. 568, 38 Cal.Rptr.2d 139, 888 P.2d 1268, italics added)].)
Rural Landowners also was decided before Yost, supra , 36 Cal.3d 561, 205 Cal.Rptr. 801, 685 P.2d 1152 in which the Supreme Court expressly held that it had "no doubt," that the "adoption of a specific plan is to be characterized as a legislative act." ( Id. at p. 570, 205 Cal.Rptr. 801, 685 P.2d 1152.) While Save Civita notes that the Yost court did not apply this conclusion in determining whether general plan amendments are reviewable by way of traditional mandamus under section 1085, Yost has been applied in such a fashion. For example, in Cormier v. County of San Luis Obispo (1984) 161 Cal.App.3d 850, 855, 207 Cal.Rptr. 880, the Court of Appeal stated:
"The actions of the legislative body in enacting zoning regulations are generally held to be legislative. For instance, a
city council acts in a legislative capacity when it adopts a General Plan Amendment. This includes an amendment to a general plan. ( Yost [, supra ,] 36 Cal.3d 561 [205 Cal.Rptr. 801, 685 P.2d 1152].) This action is reviewable under Code of Civil Procedure section 1085."
Other courts have also applied Yost in determining that a CEQA action that involves a challenge to the adoption of a general plan sounds in traditional mandate. (See, e.g., Sierra Club v. Gilroy City Council, supra , 222 Cal.App.3d at p. 39, 271 Cal.Rptr. 393.)
Save Civita also cites Friends of the Old Trees, supra , 52 Cal.App.4th 1383, 61 Cal.Rptr.2d 297, in support of Save Civita's contention that "[c]onsideration of the community-plan amendment in this case is ... a quasi-judicial function that requires a hearing, evidence, and the exercise of discretion." In Friends of the Old Trees, supra , the court noted that section 4582.7, subdivision (c), requires a public hearing with respect to administrative appeals of certain timber harvest plans. ( Friends of the Old Trees , at p. 1390, fn. 5, 61 Cal.Rptr.2d 297.) The Friends of the Old Trees court stated further that, "in such a scenario, the hearing requirement of section 21168 is clearly met" and judicial review is by way of administrative mandamus. ( Ibid. ) However, Save Civita fails to present any argument as to the ways in which a timber harvest plan administrative appeal is similar to a hearing pertaining to the adoption of a general plan amendment. Further, as explained above, in the wake of Western States , even assuming that the City's adoption of a general plan amendment required a public hearing, this fact is clearly not a sufficient basis to warrant review by way of administrative mandamus.
We also reject Save Civita's argument that the City's adoption of the plan amendments was adjudicatory because "although the proposed amendment was to a community plan, which is typically a broadly applicable policy document, the amendment referred to one specific project only—the road connection." As explained in connection with our analysis whether the City's certification of the FEIR was quasi-legislative or quasi-adjudicative, post , in approving the building of the road, the City Council was acting in a legislative capacity in broadly considering the interest of the public generally and was not "limited to a consideration of the interests of nearby property owners." (Save Lafayette Trees, supra , 66 Cal.App.5th at p. 55, 280 Cal.Rptr.3d 679.)
In sum, following Yost , we conclude that the enactment of a plan amendment involves the quasi-legislative act of adopting a rule of general application. Thus, we conclude that the City acted in a quasi-legislative capacity in approving amendments to the SMCP and City's General Plan.
b. The City's certification of the FEIR
In order to determine whether the City's certification of the FEIR was "quasi-legislative" or "quasi-adjudicative," we look to the nature of the underlying action that the City was analyzing in the FEIR. (See Western States, supra , 9 Cal.4th at p. 566, 38 Cal.Rptr.2d 139, 888 P.2d 1268 ; Madera, supra , 199 Cal.App.4th at p.76, 131 Cal.Rptr.3d 626 ; Kostka & Zischke, Practice Under the Cal. Environmental Quality Act, (Cont.Ed.Bar. 2021) Is Review Governed by Pub Res C § 21168 or § 21168.5 ?, § 23.41(c) [explaining that under Western States , "When an agency's decision on the merits of a project is reviewable [as a quasi-adjudicative act] under [ Code of Civil Procedure section] 1094.5, [section] 21168 governs review of the related CEQA determination," but that "when the agency's decision on the merits of a project is reviewable [as a quasi-legislative act] under [ Code of Civil Procedure section] 1085, [section] 21168.5 governs review of the related CEQA determination"].) In applying the Western States framework in this case, as discussed in part III.C.2.c, ante , the FEIR analyzed two underlying actions to be taken by the City: (1) approval of the building of the road and; (2) amendment of planning documents to show the proposed roadway. The administrative record makes clear that, in approving the building of the road, the City Council was not "limited to a consideration of the interests of nearby property owners." ( Save Lafayette Trees, supra , 66 Cal.App.5th 21, 280 Cal.Rptr.3d 679.) Moreover, in considering the "location of a public improvement" ( Oceanside Marina Towers, supra , 187 Cal.App.3d at p. 747, 231 Cal.Rptr. 910 ), the City Council had to assess "a broad spectrum of community costs and benefits ... [that are not] limited to ‘facts peculiar to the individual case.’ " ( Ibid. ) Thus, consistent with the case law discussed in part III C.2.c.i, ante (see, e.g., Quinchard, supra , 113 Cal. at pp. 669–670, 45 P. 856 ["[w]hether an existing street shall be improved ... is a question to be addressed to the governing body of a municipality in its legislative capacity"]), we conclude that the City's act in approving the building of the road was a quasi-legislative act. In addition, for the reasons stated ante , it is clear that the City's acts in amending planning documents to show the proposed roadway were quasi-legislative. Because both of the underlying acts analyzed in the FEIR are quasi-legislative, we conclude that the City's act in certifying the FEIR was also quasi-legislative.
Rather than apply the Western States framework and analyze the nature of the underlying actions evaluated in the FEIR, Save Civita broadly argues that "[w]here the agency's CEQA determination requires it to make findings, ... section 21168 applies." (Citing Association for Protection etc. Values v. City of Ukiah (1991) 2 Cal.App.4th 720, 729, 3 Cal.Rptr.2d 488 ; CalBeach Advocates v. City of Solana Beach (2002) 103 Cal.App.4th 529, 539, 127 Cal.Rptr.2d 1.) Neither case holds that section 21168 applies whenever an agency is required to make findings. Rather, both cases merely state the proposition that " ‘[s]ection 21168 requires the agency make findings supporting its decision ....’ " ( CalBeach Advocates v. City of Solana Beach, supra , at p. 539, 127 Cal.Rptr.2d 1 ; quoting Association for Protection etc. v. City of Ukiah, supra , at p. 729, 3 Cal.Rptr.2d 488.)
We are not persuaded by Save Civita's contention that "the Legislature intended the CEQA process for the certification of [EIRs] to be quasi-adjudicatory in nature." Save Civita's suggestion that the certification of any EIR is a quasi-adjudicative act is contrary to numerous cases holding that a CEQA petition challenging an EIR was quasi-legislative and/or reviewable under section 21168.5. (See Madera, supra , 199 Cal.App.4th at p. 76, 131 Cal.Rptr.3d 626 ; Citizens Opposing a Dangerous Environment v. County of Kern, supra , 228 Cal.App.4th 360, 174 Cal.Rptr.3d 683 ; Preservation Action Council, supra , 141 Cal.App.4th at p. 1352, 46 Cal.Rptr.3d 902 ; Cal. Administrative Mandamus, supra , Administrative Mandamus, § 5.19; cf. Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 392, fn. 5, 253 Cal.Rptr. 426, 764 P.2d 278 ["The parties dispute whether the Association's challenge to the Regents' certification of the [EIR] and approval of the project was a traditional or administrative mandamus proceeding.... This action appears to be one of traditional mandamus because the agency did not conduct a hearing at which evidence was taken in a judicial (adjudicative) sense, but we need not decide this issue"].)
Save Civita's contention that the certification of an EIR is, by default, quasi-adjudicatory and therefore reviewable under section 21168 is also contrary to the Western States framework for determining whether section 21168 or 21168.5 applies. (See Western States, supra , 9 Cal.4th at pp. 566–567, 38 Cal.Rptr.2d 139, 888 P.2d 1268 [whether a CEQA petition is reviewable under section 21168 or 21168.5 is driven by an analysis of the nature of the agency's actions on the merits of a project].) In sum, we reject Save Civita's argument that "the CEQA process pulls this Project into the quasi-adjudicatory realm." Instead, applying the Western States framework, we conclude that the City's certification of the FEIR was a quasi-legislative act.
c. Save Civita's procedural due process claim is foreclosed by our conclusions that the City was acting in a quasi-legislative capacity
Our conclusions that the City was acting in a quasi-legislative capacity in certifying the FEIR and approving the amendments to the SMCP and City's General Plan forecloses Save Civita's procedural due process claim. (See, e.g., Beck Development Co., supra , 44 Cal.App.4th at p. 1188, 52 Cal.Rptr.2d 518.) Accordingly, we conclude that Save Civita is not entitled to reversal on the ground that the City violated the public's right to a fair hearing based on evidence that a City Council Member's staff solicited support for the Project.
We also reject Save Civita's contention, raised in its supplemental brief, that "[e]ven if the City's decisions were quasilegislative in nature, Save Civita's procedural due process claim would not be foreclosed because procedural unfairness is actionable under either section 1085 or section 1094.5." Save Civita has not cited, and our research has not uncovered, any case law supporting the proposition that it is improper for a legislator or his staff to seek public support for a project when the legislator is acting in a quasi-legislative capacity. Thus, Save Civita has not identified any procedural unfairness on which its petition for writ of mandate may challenge.
IV.
DISPOSITION
The judgment is affirmed.
WE CONCUR:
DATO, J.
GUERRERO, J. Appendix A: (FEIR, Figure 5.2-1, "Traffic Impact Study Area")