In Save Civita Because Sudberry Won’t v. City of San Diego (December 16, 2021) 2021 Cal.App. LEXIS 1055, the City of San Diego prepared an EIR for a project including a general plan amendment, community plan amendment, and a road design. Opponents sued, challenging the EIR on CEQA, Planning and Zoning law and due process grounds. The trial court ruled for the City, which was subsequently affirmed by the Court of Appeal (Fourth Appellate District.) The appellate court published the portion of the opinion dealing with recirculation as well as the due process claims.

CEQA

Originally, the City had circulated a programmatic document, not including the analysis of road construction. In response to public comments, the City then released a recirculated draft EIR which included a project level of analysis addressing road construction, thus shifting from a programmatic review to a project level CEQA analysis. The project opponents (“Civita”) argued that the lead agency failed to adequately summarize the changes in a manner consistent with CEQA Guidelines section 15088.5. In fact, the evolution of the project and CEQA analysis was addressed in the public Notice of Availability, the project description, the discussion of the history of the project, the executive summary and the responses to comments. Additionally, the City argued that the nature of the changes were so extensive that the use of a redlined document would make the document more confusing for the reader. Finally, the City argued that there was no prejudice as of the result of the City circulating the expanded CEQA analysis. The trial court and appellate court agreed. The appellate court noted: “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.’”

Comment: Legal credit goes to the lead agency for being forthright in describing the transformation. In circumstances in which the recirculated document does not displace the original documents (as it did in Civita), then lead agencies need to be concerned with how to summarize the changes. It is safe to predict that no matter how extensive the lead agency’s description of changes is, the opponents will argue for more. As relatively unimportant as this practice issue may seem, CEQA practitioners know that process matters when there is litigation.

Due Process

Civita also argued that it was deprived a fair hearing, based upon bias allegedly demonstrated by a city council member. The threshold legal question was: was the city council acting in a quasi-legislative or quasi-adjudicatory manner? This question is important as due process requirements are elevated when quasi-judicial decisions are at stake. It is well established in California that plan level approvals and amendments are legislative in character, as was approval of the construction of a road. As to CEQA, the CEQA document follows the characterization of the project approvals. Accordingly, the CEQA action would also be viewed as quasi-legislative in character. Accordingly, the appellate court rejected Civita’s arguments for elevated due process rights. This threshold issue then set the stage for the specific due process claim.

The underlying issue involved communications from the city councilman’s office to members of the community in support of the project. As the trial court noted, these were communications from the councilman’s staff, not the councilman (a fine line of distinction for certain). In the trial court’s view, the office was entitled to communicate with constituents (a point also noted in a footnote by the appellate court). As elevated due process requirements did not apply to the City Council action, there was no grounds to reverse the trial court decision rejecting the unfair hearing claim.

William Abbott is Of Counsel at Abbott & Kindermann, Inc.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

William Abbott

William W. Abbott is Of Counsel in Abbott & Kindermann, Inc., a Sacramento-based law firm focusing on land use issues.  Mr. Abbott’s clients include public agencies, private developers, and property owners concerned with real estate development throughout California.  A long time instructor in…

William W. Abbott is Of Counsel in Abbott & Kindermann, Inc., a Sacramento-based law firm focusing on land use issues.  Mr. Abbott’s clients include public agencies, private developers, and property owners concerned with real estate development throughout California.  A long time instructor in land use law, Mr. Abbott also serves as an expert witness on California land use proceedings in state and federal court.

Mr. Abbott has also participated in numerous training programs for local planning departments, County Supervisors Association of California, League of California Cities, and the County Planning Directors’ Association.