San Diego City Council and Mayor Will Discuss Possible Appeal of Midway District Legal Defeat

By: Paul Krueger

Mayor Todd Gloria and City Attorney Heather Febert have followed through on their effort to overturn an appeals court ruling that requires a thorough review of the environmental impact of high-density, high-rise housing throughout the Midway District.

They’re now asking the City Council to approve a long-shot and costly appeal of that ruling to the State Supreme Court.

This dispute broke loose on October 17. That’s when a panel of the 4th District Court of Appeal issued a unanimous, strongly-worded ruling faulting the city for preparing an incomplete analysis of the negative impacts of waiving the voter-approved 30-foot height limit and allowing intense, high-rise development throughout the Midway District.

The justices said voters were deprived of information about the impact of that development when they narrowly approved the controversial height-limit waiver.

“As Save Our Access (the group that sued to invalidate the election results) stated in one of its comment letters, ‘San Diegans deserve to know the complete picture’ of removing the 30-foot Coast Zone height limit,” the ruling states. “We agree that the California Environmental Quality Act requires as much.”

Proponents of smart, managed growth rejoiced at the ruling. They believe the City must prepare a complete analysis of the environmental impacts and share that information with voters, so they can make a fully-informed decision before voting yet again to approve or reject any effort to invalidate the 30-foot coastal height limit.

But the Mayor and City Attorney quickly rejected that logic.

“The City Attorney and I disagree strongly with this ruling and will be asking the City Council to appeal it to the California Supreme Court, ” Mayor Gloria said. “In addition to the appeal, City staff have identified multiple paths to keep the redevelopment of the City’s sports arena property moving forward. Failure is simply not an option, and we will get this done.”

On Wednesday afternoon, the City Clerk updated the Council’s Monday, November 3 “Closed Session” docket to include discussion of the appellate court ruling. The docket item text states:

This item involves litigation related to Measure C, a November 2022 ballot measure to exclude the Midway-Pacific Highway Community Plan Area from the 30-foot height limit in the Coastal Zone. Save Our Access seeks a writ of mandate to invalidate Measure C’s enabling ordinance due to the City’s alleged failure to comply with the California Environmental Quality Act (CEQA).

The last line notes that “The City Attorney’s Office will update the Mayor and City Council on the status of litigation and seek direction.”

Members of the public can tell council members how they feel about this issue during public comment on the Closed Session agenda at Monday’s 10 am council meeting
Those comments will be heard before the council adjourns to Closed Session.

If the Council takes any action in Closed Session, it must disclose that action and the details of its vote during the Council’s 2 pm session that same day.

It’s unclear who placed the issue on the Closed Session docket. The City Attorney’s office refused to discuss any aspect of the appeal process and would not answer generic questions about that process, claiming that to do so would be offering “legal advice” to the public. The Mayor’s Communications staff and Council President Joe LaCava’s chief-of-staff did not reply to an email and did not return this reporter’s phone calls seeking answers to questions about the generic, non-legal process by which an issue like this is docketed, discussed, and voted on.

Save Our Access’s attorney, Everett DeLano, spoke to the Rag and stated:

“Why does the Mayor want to waste more time and money litigating a case he is likely to lose? The appellate court has now told the city twice, in two thoroughly written and well-reasoned opinions, that the City needs to stop hiding the ball and inform the voters of the actual, significant impacts associated with removing the Coastal Height Limit. Why anyone would fight those opinions, rather than do the work that is necessary to inform the electorate, is beyond me.”