The trial court improperly retained jurisdiction of a CEQA challenge after the City of San Diego filed a return to the peremptory writ of mandate confirming that it had rescinded the project approvals and thereby satisfied the terms of the writ. McCann v. City of San Diego, 94 Cal. App. 5th 284 (2023).

This case is the second appeal arising from property owner Margaret McCann’s dispute with the City of San Diego regarding the environmental review of a series of projects to underground utility lines. In the prior case (McCann v. City of San Diego, 70 Cal. App. 5th 51 (2021) (McCann I)), the court held that the City’s environmental review of a portion of the undergrounding projects was incomplete because the City failed to analyze whether the projects were consistent with the greenhouse gas reduction (GHG) measures in the City’s Climate Action Plan. On remand, the trial court issued a peremptory writ of mandate requiring the City to set aside the relevant project approvals and ordering that the court would retain jurisdiction, pursuant to Public Resources Code Section 21168.9(b), until it determined the City complied with CEQA.

The City rescinded the project approvals and filed a return asking the court to discharge the writ. McCann objected to the City’s request, arguing that the trial court was obligated to retain jurisdiction until the City either demonstrated compliance with CEQA by preparing a legally sufficient GHG analysis or affirmatively indicated that it had abandoned the projects. The trial court agreed and declined to discharge the writ.

On appeal, the court held that the City fully satisfied the terms of the peremptory writ and the trial court therefore erred in declining to discharge it. To reach this decision, the court engaged in a straightforward analysis of Section 21168.9 of the Public Resources Code, which governs issuance of peremptory writs under CEQA.

When an agency violates CEQA, the court may issue three types of writs (or a combination thereof) in accordance with Section 21168.9(a). The court may direct an agency to: (1) void, in whole or part, a determination, finding or decision; (2) suspend certain project activities; or (3) take specific action to bring a project into compliance with CEQA. In McCann I, the appellate court directed the trial court to “issue a peremptory writ of mandate directing the City to set aside [its specific project approvals]” pursuant to Section 21168.9(a)(1). The trial court executed the writ as directed—it ordered the City to rescind the approvals (without requiring any further remedial action). The City’s return confirming that the approvals had been set aside satisfied the plain terms of the writ.

McCann argued that Section 21168.9(b) of the Public Resources Code required that the trial court retain jurisdiction until the City completed the GHG analysis in compliance with CEQA. The court disagreed, observing that section 21168.9(b) requires that the trial court retain jurisdiction until it “has determined that the public agency has complied with this division” (emphasis in original). “This division” refers to the relevant grounds for issuance of a writ in Section 21168.9(a). Therefore, the trial court must retain jurisdiction only until the terms of the particular writ, as determined by the Section 21168.9(a), are fulfilled.

Here, the court did not order the City to perform any corrective action with respect to the GHG analysis under CEQA—only to rescind the project approvals. As such, the writ was satisfied and should have been discharged. Section 21168.9(b) does not permit a trial court to retain jurisdiction “in perpetuity based on the hypothetical possibility that the City moves forward with the same projects in the future.” 

The Court of Appeal rejected a challenge by two school districts to a specific plan EIR, finding the districts’ claim that the EIR should have analyzed off-site impacts resulting from inadequate school facilities to be speculative. Santa Rita Union School Dist. v. City of Salinas, 94 Cal.App.5th 298 (2023).

The City approved a specific plan covering approximately 800 acres in the northern portion of the City. The Plan contemplated 4,340 new residential units as well as mixed-commercial uses, parks, open space and schools to address projected increases in student population resulting from the new housing. The EIR for the Plan addressed anticipated off-site impacts from development of schools on the sites designated in the Plan.

Two school districts challenged the EIR, contending that because of insufficient school-facilities funding over the 20 to 30-year life of the Plan, the new schools contemplated by the Plan would likely never be built, and the EIR improperly failed to address indirect, off-site environmental impacts resulting from the districts having to use other means to accommodate student growth.

The court concluded that the EIR complied with CEQA. In preparing the EIR, the City was required to assume that all elements of the Plan would eventually be built, and the EIR properly assumed that the contemplated new schools would be constructed. The City also provided project-level mitigation measures for non-school physical impacts from construction of these facilities, including air quality, traffic and noise, recognizing that the districts themselves would need to address any project-specific impacts.

The districts’ challenge assumed that sufficient funding over the next two to three decades for construction of the new schools was uncertain and that the districts might ultimately need to accommodate the additional students through one or more alternative means such as installing portable classrooms, expanding unspecified existing facilities, constructing new facilities and/or bussing unidentified numbers of students to other districts. These alternative means were alleged to cause traffic, noise, air quality, and other off-site environmental impacts.

The court held that the City was not required to analyze any potential off-site impacts of the “ill-defined, uncertain, generalized, and speculative alternatives to new-school construction . . . offered by the Districts.” The districts’ concerns about inadequate funding were based on the manner in which schools are currently funded, and their assumptions about a perennial lack of sufficient school-facilities funding over the life of the Plan, without providing more detailed information or identifying a more specific alternative plan to address this possibility, amounted to no more than speculation. Under CEQA, evidence of environmental impacts must be founded on facts, reasonable assumptions based on facts, and expert opinion supported by facts. The vague generalities proffered by the districts did not meet this threshold, hence no further environmental review or response from the City was required.

The court upheld the authority of the California Coastal Commission to decide appeals of coastal development permits under a de novo standard of review. Cave Landing LLC v. California Coastal Commission, 94 Cal. App. 5th 654 (2023).

The McCarthys owned a parcel in the coastal zone of San Luis Obispo County that was subject to an easement granted to the county for a hiking trail.  The easement provided that it could be relocated “to a location on Grantor’s property that Grantor and Grantee shall reasonably agree.”  

Pursuant to the Coastal Act, once the Coastal Commission approves a local agency’s local coastal program, all actions implementing the program are delegated to the local government.  Developers must obtain coastal development permits which, in jurisdictions with approved local coastal programs, are decided by the local agency, subject to appeal to the Commission.  San Luis Obispo County had an approved local coastal program.

In 2013, without a coastal development permit, the McCarthys blocked access to the county hiking trail by installing fences and gates.  In 2014, the Commission issued a cease-and-desist order prohibiting the McCarthys from undertaking any activity that discourages or prevents public use of the trail.  The order stated that it remained in effect unless rescinded.  The McCarthys did not challenge the order in court.

In 2016, the McCarthys, joined by their neighbor as co-applicant, applied for a coastal development permit to move the trail over to the neighbor’s parcel.  They proposed that the new trail would be constructed and dedicated to the county, then the county would quitclaim the existing easement back to the McCarthys. The county approved a coastal development permit for the project, which was appealed to the Commission. 

The Commission denied the permit. It relied on a staff report that described how the project would interfere with public views, be located within an archaeological sensitive area, involve grading of 1,260 cubic yards that would materially change the area’s scenic rural character, and would be undertaken in a geologically unstable area.  The staff report also concluded the McCarthys had no legal right to move the trail, citing the language in the easement that limited relocation to areas within the McCarthy parcel, and the Commission’s cease-and-desist order.  The McCarthys sought a writ to vacate the Commission’s denial and approve the permit. 

The appellate court first rejected the McCarthys’ interpretation of the easement language, under which relocation to any property owned by “Grantor” would have been permitted.  The court noted that the easement referred only to the McCarthy parcel.  The court next dismissed the argument that only the county, and not the Commission, was a party to the easement, since the Commission has ultimate authority regarding compliance with the Coastal Act. 

The McCarthys also noted that the cease-and-desist order prohibited them only from engaging in further development “unless authorized pursuant to the Coastal Act,” and argued their development was authorized when the County granted a coastal development permit.  They relied on Public Resources Code section 30519(a), which states that after a local coastal program is effective, the development review authority shall no longer be exercised by the Commission and shall be delegated to the local government. The appellate court pointed out that the McCarthys ignored the first phrase of section 30519(a), which states “except for appeals to the Commission.”  The court confirmed that the Commission has de novo review authority under sections 30621(a) and 30625(a) and upheld the denial of the McCarthy’s writ.

Property owners who acted illegally by blocking parking on a public street fronting their houses were not entitled to use the County’s alleged noncompliance with CEQA as a defense to actions enforcing encroachment laws.  Anderson v. County of Santa Barbara, 94 Cal.App.5th 554 (2023).

Property owners in the Montecito area of Santa Barbara County did not want drivers parking on the public road fronting their houses, which leads to a trailhead. They installed landscaping, boulders, and signs that encroached into the public right of way. The public continued to park on the street despite the encroachments, partially obstructing the travel lane, reducing the street to a one-lane road, and creating a safety hazard, especially at night.

The County’s transportation division sent notices to three properties instructing the owners to remove the encroachments.  It later filed a Notice of Exemption for restoring the right of way by removing the encroachments. Some other property owners sued and challenged the CEQA exemption.  They obtained a preliminary injunction and later a writ preventing removal of the encroachments until the County undertook CEQA review.

The appellate court reversed.  It rejected arguments that the restoration project was only part of a larger project to increase the number of hikers accessing the trailhead by increasing parking on the road.  The project “is properly considered a stand-alone project because it has independent utility.”  It further agreed that the restoration project was categorically exempt from CEQA because it involved the maintenance or repair of an existing road and the enforcement of statutes and ordinances prohibiting unpermitted encroachments in the public right of way. It found no substantial evidence that the project presented unusual circumstances.

The court further ruled that a trial court may not enjoin a public officer from enforcing the law. “The injunction at issue here allows adjacent landowners to encroach upon a public right-of-way, a misdemeanor offense. Any claimed ‘failure’ to follow [CEQA] is not a defense to the commission of a crime.”  Citing Public Resources Code section 21174, the court noted that CEQA is not a limitation or restriction on the power or authority of any public agency in the enforcement or of any law it is permitted or required to enforce. In balancing the harms, the court concluded that “a party suffers no grave or irreparable harm by being prohibited from violating the law ….”

An environmental impact report need not discuss impacts that are too speculative in nature for proper evaluation or assess economic costs not linked to a physical change in the environment. County of Butte v. Dept. of Water Resources, 90 Cal.App.5th 147 (2023).

In 2008, three local government entities challenged the California Department of Water Resources’ EIR prepared in connection with the licensure of hydropower activities for the Oroville Dam and have been litigating this issue for the past 15 years. In this latest case, plaintiffs argued that the EIR: (1) failed adequately to consider climate change; (2) failed to properly evaluate economic and public health impacts; (3) wrongly assumed that the Oroville Dam facilities complied with water quality standards; and (4) did not account for potential changes to the State Water Project that could affect the Oroville facilities.

Climate Change

The court rejected plaintiffs’ argument that DWR’s EIR should have included more discussion of the effect of climate change on the Oroville Dam facilities—particularly the Feather River Basin—over a 50-year licensing period. DWR’s analysis was based on multiple, reputable reports detailing the uncertainties in predicting regional climate change, which together supported DWR’s conclusion that discussion of potential changes to operations of the dam facilities necessitated by climate change would be speculative. DWR’s decision was consistent with CEQA Guidelines § 1545 which provides that, “[i]f, after thorough investigation, a lead agency finds that a particular impact is too speculative for evaluation, the agency should note its conclusion and terminate discussion of the impact.”

Economic and Public Health Impacts

Under CEQA Guidelines § 15064(e), an agency must consider the economic effect of a project if the effect contributes to, or is caused by, a physical change in the environment.  The court found that DWR’s EIR did not need to evaluate economic effects because the plaintiffs were unable to establish a link between any economic effect and a physical change in the environment caused by the project. While DWR’s consultant acknowledged that certain dam facilities would need to replaced and upgraded and calculated capital costs based on that assumption, this did not undermine DWR’s finding that the project would not trigger these changes. As to health impacts, the court rejected plaintiffs’ contention that DWR failed adequately to evaluate the increased level of mercury in fish resulting from mercury-laden sediment and the Office of Environmental Health Hazard Assessment (OEHHA) found the fish from the Oroville facilities safe to consume.

Water Issues

The court also rejected plaintiffs’ claims related to hydrologic studies and water quality. First, the court dismissed the claim that the EIR failed to properly analyze historical hydrologic conditions because plaintiffs had failed to raise these claims during the public comment process. Second, the court held that the EIR’s discussion of water quality and designated beneficial uses was adequate, rejecting plaintiffs’ contention that the EIR improperly relied on compliance with water quality standards. The EIR made clear that compliance with water quality standards was a necessary part of the licensing procedure and identified the proper agency from which to seek compliance: the State Water Resources Control Board.

State Water Project

The court found plaintiffs’ objections to the EIR on State Water Project grounds unpersuasive. DWR properly consulted with federal agencies and obtained biological opinions on impacts to endangered species from changes in the State Water Project before proceeding with its licensure of the dam facilities. While a federal court found both biological opinions inadequate and ordered the agencies to prepare new opinions, DWR acknowledged these developments in its EIR but reasonably concluded that it could not predict the terms of a new biological opinion concerning salmonids and that the terms of a new biological opinion related to Delta smelt would not affect the majority of release requirements from the dam.

Cost of Administrative Record

The court also turned down plaintiffs’ challenge to the award of $675,087 in costs to DWR for preparing the 320,000-page administrative record. The court noted that the record was unusually large, concerned a project spanning more than a decade and took over a year of “intensive and . . . continuous[]” efforts involving hundreds of DWR employees. Under these circumstances, the amount awarded was not unreasonable, and plaintiffs’ claims that DWR purposefully “r[a]n up the cost bill” because it disliked them and artificially increased the cost bill to solve budget difficulties were baseless.

The Court of Appeal upheld the City’s determination that compensatory mitigation for the loss of a historic building in the form of funding of other historic preservation was not feasible because there were no other buildings in the downtown areas with the same architectural style, period of significance, and purpose. Preservation Action Council of San Jose v. City of San Jose, 91 Cal. App. 5th 517 (2023), reh’g denied (May 10, 2023).

A private developer proposed a project in San Jose that included demolition of a bank, which was designated as a historic site. In response, San Jose proposed mitigation measures such as physical documentation and salvaging efforts in its supplemental environmental impact report (SEIR). Plaintiffs sued, claiming the City (1) failed to identify, analyze, and impose compensatory mitigation and (2) failed to adequately respond to the comments submitted to the draft SEIR.

First, the court held that the City’s discussion of compensatory mitigation measures in the Final SEIR complied with CEQA, agreeing with the City that the mitigation proposed by plaintiffs — funding of other historic resources —was infeasible. General funding of historic preservation would not mitigate the loss of the bank building because there were no other buildings in the downtown area with the same architectural style, period of significance, or purpose. The court also upheld the City’s conclusion that plaintiffs’ mitigation measures lacked the “essential nexus” and “roughly proportional” constitutional requirements under Nollan.

The court reasoned that the loss of non-transferable historic preservation was not equivalent to the loss of ecological habitats and threatened species. When an agency destroys ecological habitat, the preservation of similar habitat would create substitute resources with some equivalence, thereby lessening the impact of the loss. In contrast, “historical places are rarely fungible items of equivalent historical significance and value,” so general preservation of other historic resources would not lessen the specific loss of the bank.

In light of this, San Jose’s brief consideration and rejection of compensatory mitigation measures in the Final SEIR was sufficient. The City was required to consider mitigation measures that were feasible and would substantially lessen the significant environmental effects of projects. Plaintiffs’ proposed compensatory measures failed to substantially lessen the significant impact of the bank’s loss, so the City complied with CEQA when it briefly considered and rejected the measures. In addition, the court held that San Jose did not fail to adequately respond to public comments concerning compensatory mitigation. In responding to comments, an agency complies with CEQA when it responds with “good faith, reasoned analysis.” The court found that the Final SEIR’s discussion of the mitigation measures combined with the draft SEIR was a sufficient response to the comments.

The First District Court of Appeal held that a single deed conveying four or fewer contiguous lots can qualify for a presumption of legality under section 66412.6(a) of the Subdivision Map Act so long as the lots are separately described (including by reference to an antiquated subdivision map) and all other requirements of section 66412.6(a) are satisfied. Specifically, the court rejected the City of Oakland’s argument that the lot in question must have been separately conveyed as a single lot to have been lawfully established. Crescent Trust v. City of Oakland, 90 Cal. App. 5th 805 (2023).

Fox Oakland Theater, 1807 Telegraph Ave, Oakland, CA

The lot at issue, Lot 18, was first depicted on the Map of San Antonio filed with the County Recorder’s Office in 1854 and recorded in 1869. At that time, no state or local law existed “regulating divisions of land creating fewer than five parcels.” Crescent Trust acquired Lot 18, along with Lot 17 and part of Lot 16, in 2015 by a single conveyance. Although several other lots’ boundaries had been adjusted over time through various conveyances, Lot 18 remained as depicted on the 1854 Map of San Antonio.

Crescent Trust subsequently applied for a certificate of compliance for Lot 18, which the City denied on the ground that Lot 18 had been merged with several of its surrounding lots in 1933. Crescent Trust filed a petition for writ of mandate. The City opposed the writ petition, not on the theory that Lot 18 had been lost through merger, but on the ground that Lot 18 was never formally divided because it was depicted on an antiquated subdivision map and had never been lawfully created or separately conveyed as an individual lot. The City relied on Gardner v. County of Sonoma, 29 Cal. 4th 990 (2003), which held that “the recordation of a subdivision map…without something more (such as a conveyance), could not and did not work a legal subdivision of the property.”

Under Government Code section 66412.6(a), any parcel created prior to March 4, 1972, is presumed to have been lawfully created if (1) the parcel resulted from a division of land creating fewer than five parcels and (2) at the time of such creation, there was no local ordinance which regulated divisions of land resulting in fewer than five parcels. The Court of Appeal rejected the City’s argument that Gardner required Lot 18 to be separately and individually conveyed from the surrounding lands to enjoy section 66412.6(a)’s presumption of legality.

In contrasting the Supreme Court of California’s decision in Gardner to the present case, the Court of Appeal stressed that, (1) the Supreme Court’s holding there rested on a factual predicate not presented here: the Gardner lots had never been separately conveyed or separately described in a grant deed; and (2) the Gardner court did not consider section 66412.6(a), concluding that any argument based on that statute had been waived. Thus, the Court of Appeal reasoned, the City here relied on a “single-lot-only constraint on conveyances that the high court did not, in fact, impose.” Although Lot 18 was conveyed alongside contiguous properties, Lot 18 was “’separately described’ in every conveyance of fewer than five lots.” This “was wholly consistent with the law then, and now,” under which multiple, separately described lots can be transferred by way of a single conveyance, such as a grant deed. Accordingly, Lot 18 was lawfully subdivided and entitled to a presumption of legality under section 66412.6(a).

The appellate court invalidated the City’s reliance on CEQA’s Class 32 in-fill exemption to approve construction of a hotel because the project included demolition of affordable housing and thereby conflicted with General Plan policies favoring preservation of such housing. United Neighborhoods for Los Angeles v. City of Los Angeles, 93 Cal.App.5th 1074 (2023).

A developer applied for a project that that would demolish 40 apartments subject to the City’s rent stabilization ordinance (RSO) and replace them with a 156-room hotel. The City approved the project, determining that it qualified for CEQA’s Class 32 in-fill exemption. (Guidelines, § 15332 (a).)

Petitioner challenged the City’s reliance on the in-fill exemption, contending the project did not satisfy the requirement of “consisten[cy] with . . . all applicable general plan policies . . . .” (§ 15332 (a)). Specifically, it argued that demolition of the rent-controlled apartments conflicted with provisions in the Housing Element of the General Plan calling for the preservation of affordable housing, including “ensur[ing] that demolitions and conversions do not result in the net loss of the City’s stock of decent, safe, healthy or affordable housing.”

The City contended that Housing Element policies relating to the preservation of affordable housing were inapplicable because (1) the construction of a hotel did not bear on housing production, and (2) RSO housing was not “affordable” housing within the meaning of pertinent Housing Element policies. The court found no merit in either argument.

The City’s contention that no conflict existed because Housing Element policies were concerned only with supply of new housing was directly contradicted by the Housing Element’s goal of “production and preservation” of affordable housing (emphasis added); its objective to “[p]reserve quality rental and ownership housing;” and its policy to “[e]ncourage and incentivize the preservation of affordable housing”. The court found nothing in other sections of the Housing Element cited by the City that supported the claim that its sole focus was new affordable housing or that goals, objectives, and policies relating to preservation of existing housing were to be ignored.

The City’s alternative contention that “affordable housing” was a term of art that excluded RSO housing failed because nothing in the Housing Element suggested that its use of that phrase differed from its commonly understood meaning, i.e., housing affordable to persons of low or median incomes or housing made available to those on lower incomes at a price below normal market value. Because the RSO prohibited landlords from raising rents to reflect “normal market value” under certain circumstances, RSO housing units were affordable housing within the ordinary meaning of the phrase.

The City argued that it had impliedly considered Housing Element policies and determined that the project was consistent with them, noting that the court was required to accord deference to the City’s interpretation of its own General Plan. While agreeing that such deference would ordinarily be appropriate, the court held that it was not warranted here because there was no substantial evidence in the record that the agency had in fact considered and interpreted the applicable policies.

The Court of Appeal held that a city-developer agreement that ostensibly precluded the City of Oakland from imposing any new impact fees on the project constituted an impermissible infringement of the City’s police power. Discovery Builders Inc v City of Oakland, 92 Cal. App. 5th 799 (2023).

In 2004, the City approved a development with over 400 residential units (primarily townhomes and condominiums) on the site of the former Leona Quarry. In 2005, the City entered into cost-allocation agreement with the developer to fund the full costs incurred by the City in hiring and supervising independent technical and other consultants needed for the project. The agreement provided that payment of the fees specified in the agreement “is agreed by the Parties to fully satisfy and discharge Developer’s obligations for” City fees. “City fees” was not defined in the agreement, which was signed on behalf of the City by the planning director.

In 2016, the City adopted three new impact fees for development projects – an affordable housing impact fee, a transportation impact fee, and a capital improvements impact fee to fund a variety of improvements, including library, parks and recreation, police, and storm drain utilities. The developer protested the imposition of these fees on its project and filed suit contending that the 2005 agreement barred the City from collecting any fees other than those described in the agreement.

The court noted the conflicting views of the parties as to which fees were intended to be covered by the agreement but concluded that this issue need not be resolved. Relying on Avco Community Developers, Inc. v. South Coast Regional Commission, 17 Cal.3d 785 (1976) and its progeny, the court held that enforcement of the agreement as interpreted by the developer would be contrary to public policy because it was “settled that the government may not contract away its right to exercise the police power in the future.” There was no dispute that the City’s affordable housing, transportation, and capital improvement fee ordinances arose from the City’s police powers; hence, the 2005 agreement could not be enforced in a way that would prevent the City from applying those ordinances to the project. The court rejected the developer’s argument that there was no surrender of police powers because the City still maintained the power to make and enforce future zoning laws against other developers, citing prior caselaw invalidating agreements exempting a small subset of parties from laws and ordinances.

In Save Our Access v. City of San Diego, 92 Cal. App. 5th 819 (2023), the court of appeal ruled that the City of San Diego improperly relied upon an earlier Program EIR for a community plan to support its subsequent decision to exclude the community plan area from a building height limit, because the community plan presumed the height limit would apply and there was no evidence that the Program EIR considered the environmental impacts of removing the height limit.

The San Diego City Council approved the Midway-Pacific Highway Community Plan Update and corresponding general plan amendments in 2018. The city prepared and certified a Program EIR for the community plan update. At that time, the area covered by the community plan was subject to a 1972 voter-approved ordinance that imposed a 30-foot height limit on new buildings in the coastal zone.

In 2020, the city council approved an ordinance to submit to voters a proposition that would amend the 1972 ordinance to exclude the community plan area from the 30-foot height limit. In support of the city council’s action, a city staff report asserted that the ordinance and ballot measure were adequately addressed in the community plan Program EIR and were part of a series of subsequent discretionary actions and not a separate project for purposes of CEQA review. The staff report also asserted that subsequent environmental review was not required because it would not result in new or more severe significant effects than those evaluated in the Program EIR. City voters approved the ballot measure in November 2020.

The court of appeal ruled that there was no substantial evidence to support the city’s determination that the ballot measure was a later activity within the scope of the Program EIR. The Program EIR analyzed full build-out under the community plan, referencing land use designations and allowable residential densities but not building heights. The court pointed out that (1) the community plan presumed the 30-foot height limit would apply and the Program EIR did not consider the environmental impacts of removing the height limit; (2) the scoping statement for the Program EIR stated that the 30-foot height limit applied to the entire community plan area; and (3) the Program EIR explained that development would take place “within the constraints of the existing urban framework and development pattern.” The court held that evidence cited by the city—including statements in an appendix to the Program EIR, references in the community plan to base zoning designations that allowed for buildings higher than 30 feet, and 2020 emails among city planning department staff—did not support the city’s “strained argument” that the Program EIR considered the environmental impacts of removing the height limit and, in any event, this evidence could not have adequately informed the public that removal of the height limit was a possibility.

The court further held that substantial evidence supported a fair argument that removing the height limit could result in significant environmental effects that were not analyzed in the Program EIR. The court noted that the Program EIR’s analysis of visual impacts was limited “precisely because it did not consider the impacts of buildings above the 30-foot height limit.” The court cited public comments raising a host of concerns about removing the height limit, including impacts on views, light and glare, air quality, traffic, human health, water quality, urban heat islands, greenhouse gases, and bird flight paths. Because none of these impacts were analyzed in the Program EIR, the court ruled that further analysis was required under CEQA.