Court orders reinstatement of 30-foot height limit in San Diego’s Midway District

San Diego’s years-long attempt to remove the 30-foot building height limit from the Midway District was just dealt a severe blow by a state appellate court.

On Friday, California’s Fourth District Court of Appeal overturned a San Diego Superior Court judge’s earlier decision, which found that the 2022 ballot measure that lifted the height limit in the Midway District was legal. The higher court disagreed, ruling in favor of appellant Save Our Access.

In the three-judge panel decision, the court said the city violated California’s Environmental Quality Act, or CEQA, because it did not adequately inform the public about the environmental impacts of removing the height limit. The city, the opinion states, abused its power in putting the matter before voters without the proper analysis.

“As Save Our Access stated in one of its comment letters, ‘San Diegans deserve to know the complete picture’ of removing the 30-foot coastal zone height limit. We agree that CEQA requires as much,” Justice Joan Irion wrote in the court’s opinion, which was certified for publication. Justices Terry O’Rourke and David Rubin concurred.

The opinion directs the trial court to issue a writ of mandate, which will rescind the 2022 ballot measure and restore the height limit in what’s known as the Midway-Pacific Highway Community Plan area.

San Diego can petition the state Supreme Court to take the case, but it’s unclear if the city can delay implementation of the appellate court’s directive.

“We are working with the City Attorney’s Office to evaluate this ruling and determine our next steps,” a spokesperson for Mayor Todd Gloria said.

The City Attorney’s Office declined to comment.

The court’s decision recognizes the important role CEQA plays in informing the public about the extent of potential environmental impacts, and it serves as an indictment on the city’s attempt to pass off a cut-and-paste analysis as sufficient, Everett DeLano, a lawyer representing Save Our Access, told the Union-Tribune.

“It’s nice to see the court saying that CEQA really means something. It’s not just meaningless paperwork,” he said. “Practically speaking, there will be a height limit in the Midway-Pacific Highway community again.”

However, the Midway Rising development team working to redo San Diego’s sports arena real estate with thousands of apartments and a new entertainment center, all in buildings that eclipse the height limit, says the decision will have little impact on the project.

“While unfortunate for San Diego, this ruling has little bearing on Midway Rising,” a spokesperson for the development team said. “There are numerous state laws in place designed to advance affordable housing, and Midway Rising is one of the largest affordable housing projects in state history. As a result, we remain confident in our ability to deliver this world class project.”

North of San Diego’s airport and south of Mission Bay, the 1,324-acre Midway District has been subject to a 1972 referendum on buildings over 30 feet in the city’s Coastal Height Limit Overlay Zone, or coastal zone for short, which was defined at the time as extending from the water to Interstate 5 in city limits with some exceptions.

San Diego leaders have labored for years to free the area from the restriction, blaming the height limit for stunting the growth of a neighborhood defined by its aging sports arena, supersized streets, strip clubs and suburban-style shopping centers.

In 2020, the city first asked voters to strike the entirety of the community plan area from the coastal zone. The ordinance, known as Measure E, was approved by 57% of voters.

Save Our Access sued, arguing that the city was in violation of state environmental law because it did not study the impacts of buildings taller than 30 feet. The city has maintained that the environmental impact report prepared for the Midway-Pacific Highway Community Plan, approved in 2018, appropriately considered the impacts of taller buildings because it evaluated factors such as greenhouse gas emissions, traffic and air quality alongside the plan’s zoning changes.

But, in December 2021, a Superior Court judge ruled that the original ordinance was illegal.

At Gloria’s direction, San Diego then advanced a dual-track approach — with the city pursuing both an appeal and a repeat ballot measure — to keep from derailing efforts to remake the city’s sports arena real estate. The city lost its appeal, but was successful at the ballot box.

In 2022, San Diego returned to voters with a do-over initiative, Measure C, after preparing a supplemental environmental impact report, or SEIR, that studied just the visual impacts of buildings up to 100 feet tall, as permitted by the different zones in the community plan. Measure C passed with 51% approval.

Save Our Access sued again, this time contending that the supplemental work ignored other consequential environmental factors, such as traffic and transportation impacts, biological resource impacts and water quality. The group lost at the trial court. In March 2024, Save Our Access returned to the state appellate court.

The appellate court’s 35-page opinion took issue with the narrow scope of San Diego’s supplemental analysis. The court flatly rejected the city’s position, which is that the environmental impact report prepared for the community plan is sufficient because it considered the maximum number of dwelling units allowed by the plan’s base zones.

“The city’s discretion to determine how to evaluate potentially significant impacts does not extend to defining away significant impacts by narrowly characterizing ‘build out’ based on the number of dwelling units and then analyzing only impacts from that number of units while excluding other reasonably foreseeable effects of structures above 30 feet,” Irion wrote in the opinion. “By doing so, the city prejudicially abused its discretion in certifying the 2022 SEIR and the ballot measure.”

The opinion identified in detail four areas where the city’s analysis is inadequate: noise, air quality, biological resources and geological conditions.

For instance, when it comes to geological conditions, the justice noted that the Midway District is largely built on artificial fill susceptible to liquefication and settlement.

“How will building foundational support for numerous tall buildings in the area impact the geological conditions collectively? Will they cumulatively impact hydrology and water quality, such as groundwater? Neither the initial study nor the 2022 SEIR address such questions,” Irion wrote.

With the decision, the trial court will order the city to rescind approval of the 2022 ballot measure, meaning the height limit will go back into effect in a matter of weeks, DeLano, the Save Our Access attorney, said.

Whether or not the appellate court ruling slows down momentum on the Midway Rising project is still unknown. The city and the development team are marching toward an end-of-the-year decision on the project, which calls for 4,254 total residential units, a 16,000-seat replacement arena and 130,000 square feet of commercial space on 49.2 acres of land in the Midway District.

The team’s statement suggests that the plan can advance as is.

Midway Rising may be able to invoke State Density Bonus Law. Under the law, housing developments that deed-restrict a percentage of residential units for very-low, low- or middle-income families are eligible for both density bonuses and waivers to bypass local regulations like height restrictions.