Midway District’s 30-foot height limit will be restored following California Supreme Court ruling

The state’s highest court has rejected San Diego’s plea to keep intact the 2022 voter-approved ballot measure that removed the 30-foot height limit from the Midway District.

Last week, the justices of the Supreme Court of California formally denied the city of San Diego’s petition for review of the appellate court’s ruling, which found that the city illegally put the ordinance before voters without adequately informing them about the environmental impacts associated with taller builders, as required by California’s Environmental Quality Act, or CEQA.

The denial exhausts the city’s legal options for the 2022 ballot measure, known as Measure C. The trial court must 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.

The decision is a remarkable defeat for the city, which has sought for more than five years to free the expansive, mostly commercial area — currently defined by Pechanga Arena San Diego, supersized streets, strip clubs and warehouses — from a restriction that city leaders believe stands in the way of meaningful redevelopment and new homes. An initial 2020 ballot measure was similarly ruled illegal.

The state Supreme Court also denied the city’s request to depublish the appellate court ruling, making the opinion a citable, binding precedent for lower courts and a notable addition to CEQA case law.

The high court’s denials attest to the fact that the city is not above the state’s environmental law, Everett DeLano, a lawyer representing plaintiff Save Our Access, told the Union-Tribune on Monday.

“It’s a nice affirmation,” he said. “The ruling from the appellate court … was a very well-done, well-reasoned opinion. So it doesn’t surprise me in the slightest that the Supreme Court has said, ‘No thanks.’”

It’s unclear if San Diego will return to the ballot box for a third time.

San Diego Mayor Todd Gloria’s attention is, for now, focused on advancing the megaproject in the works for the city’s sports arena real estate at 3220, 3240, 3250 and 3500 Sports Arena Blvd. The Midway Rising development team is seeking to lease and remake the 49.2-acre property with 4,254 residential units in 105-foot-tall residential buildings, a 165-foot-tall replacement arena and 130,000 square feet of commercial space.

“While we are disappointed that the Supreme Court declined to hear the city’s appeal, this procedural decision does not change our commitment or our momentum to redevelop the sports arena site. We continue to disagree with the lower court’s ruling, but we are not standing still,” Gloria and City Attorney Heather Ferbert said in a joint statement. “The city is actively pursuing options that will provide a clear and durable path forward for this transformational project — one that will deliver thousands of new homes, including affordable housing, permanent jobs, a modern entertainment venue and significant economic benefits for San Diego.”

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.

In November 2022, the city of San Diego asked voters for a second time to strike the entire community plan area from the city’s coastal zone. Measure C was put before voters after an earlier ordinance was invalidated, following a challenge from nonprofit Save Our Access, because the environmental impact report prepared for the Midway-Pacific Highway Community Plan, approved in 2018, did not study the impacts of buildings taller than 30 feet.

Measure C passed with 51% approval, but Save Our Access sued again. This time, the group contended that San Diego’s supplemental analysis of the visual and neighborhood character impacts of taller buildings, prepared in advance of the 2022 ballot measure, disregarded other consequential environmental factors. The trial court sided with the city.

But in October, California’s 4th District Court of Appeal ruled that the city violated CEQA when it put the do-over ballot measure in front of voters before sufficiently studying the environmental impacts of taller buildings. The appellate court opinion, authored by Justice Joan Irion, identified four areas where the city’s supplemental analysis was inadequate: noise, air quality, biological resources and geological conditions.

In November, San Diego City Council members authorized a petition for review to the Supreme Court of California.

The state’s highest court denied the petition and the request for depublication on Dec. 30 without explanation. Chief Justice Patricia Guerrero, a former appellate court justice in San Diego, recused herself from the decision.

The order came a day after California Gov. Gavin Newsom, Attorney General Rob Bonta and the Department of Housing and Community Development submitted an amicus letter to the court in support of the city of San Diego’s petition for review. The parties believe the case, which concerns CEQA requirements at the community plan level, creates more legal ambiguity for municipalities and poses a statewide threat to housing development.

“The issue thus affects a matter of the utmost statewide concern: California’s severe housing shortage. And review by this court is necessary, because uncertainty about how specific the study of environmental impacts must be at that early stage — versus what can be deferred to the consideration of specific building projects later — can pose a potentially severe impediment to localities’ attempts to adapt their plans to the state’s current housing needs,” Deputy Solicitor General Joshua Klein wrote in the letter.

The appellate court’s opinion lacks a clear standard for environmental review and introduces vague hurdles for local governments, Klein wrote.

“The opinion thus is not of concern simply for San Diego itself. Instead, it reflects an underlying uncertainty that is of broader importance,” the letter states. “The lack of clarity in judicial precedent as to what CEQA requires when land-use and zoning plans are amended subjects governmental entities to the threat of multiple rounds of approvals and litigation, and perhaps to multiple rounds of voter referenda.”

John McNab, president of Save Our Access, said he views the legal victory as part of a longer battle to preserve public land near the coast. The Midway District, he said, is prime coastal land in need of protection because of its proximity to the San Diego River and Mission Bay.

“It’s a long road. It’s not over. Chapter one is maybe finished, but there’s another chapter, and it’s the same battle,” McNab told the Union-Tribune. “Do we want to give away the coast and literally destroy the quality of life of San Diego?”

McNab said he and his fellow board members have been fighting public-land battles since the 1980s and 1990s. McNab was also the president of the Save Our NTC group that sued the city over the former Naval Training Center now called Liberty Station. His greatest concerns are density at the expense of public open space, understated traffic impacts that lead to gridlock and sweetheart deals for developers that leave taxpayers on the hook for infrastructure costs.

Should the Midway Rising deal advance under California’s density bonus law, as envisioned, Save Our Access will consider a lawsuit to block the mega project, McNab said.