San Diego’s Approval of Ballot Initiative Raising Height Limit in Coastal Neighborhood Violated CEQA (Again)

Twice in the past five years, San Diego voters have approved ballot initiatives seeking to raise the 30-foot height limit for buildings in the city’s Midway-Pacific Highway Community Planning Area (often referred to as the Midway district). And now, with the Fourth District Court of Appeal’s recent decision in Save Our Access v. City of San Diego, ___ Cal. App. 5th ___, 2025 WL 2945714 (Oct. 17, 2025) (Save Our Access II), the courts have twice invalidated those efforts for failure to comply with CEQA. While the lasting effects of the decision are still uncertain—the city has indicated that it plans to seek California Supreme Court review, and state law may override the height limit in certain circumstances—as it stands now, the decision serves as a cautionary tale to cities and counties contemplating ballot initiatives that would loosen local zoning restrictions.

In 1972, San Diego voters enacted an ordinance capping building height to 30 feet within the City’s Coastal Zone, seeking to preserve coastal views and limit density. One of the neighborhoods in which that height restriction applies is the Midway district.  Home to an aging sports arena, a handful of strip malls, and some light industrial sites, the Midway has long been targeted as a prime candidate for redevelopment, particularly given its close proximity to downtown, the airport, and beaches.

To facilitate that redevelopment effort, San Diego voters in 2020 approved a ballot measure eliminating the 30-foot height limit in the Midway district. For CEQA purposes, the city sought to rely on a 2018 Program EIR (PEIR) that had been certified for a community plan update. An anti-development group called Save Our Access sued, arguing that the CEQA analysis in that document was inadequate because it did not envision raising the height limit. The trial court agreed, and the Court of Appeal affirmed. See Save Our Access v. City of San Diego, 92 Cal. App. 5th 819 (2023) (Save Our Access I).

While that appeal was pending, the City prepared and certified a Supplemental EIR (SEIR) and in 2022 voters approved a second ballot measure to remove the height limit. Save Our Access again sued, arguing that while the SEIR evaluated the impacts to visual resources and neighborhood character from raising the height limit, it failed to evaluate other impacts. The trial court rejected that claim, but in Save Our Access II, the Court of Appeal reversed, invalidating the result at the ballot box a second time on CEQA grounds.

The Court of Appeal faulted the city for wrongly assuming that the prior PEIR had adequately covered all environmental issues other than visual impacts and neighborhood character.  The court identified multiple topics—noise, air quality and greenhouse gases, biological resources, and geologic hazards—that, in its view, had not been sufficiently addressed in either the PEIR or the SEIR. For example, with respect to noise, the court determined that because the PEIR had assumed that the 30-foot height limit would remain in place, it had not assessed whether taller buildings could reflect and refract more ambient noise, or whether constructing taller buildings would itself increase noise. And with respect to air quality, the court reasoned that the PEIR had not evaluated whether taller buildings would “interact with air flow or other atmospheric conditions that help dissipate or emissions or odors.” 

Before issuing its opinion, the Court of Appeal had invited the parties to submit supplemental briefs explaining whether recent legislative changes to CEQA in Assembly Bill 130 and Senate Bill 131 affected the appeal.  It concluded they did not, because those measures do not encompass “removal of the height limit for an entire planning area.”  The opinion thus sends a clear signal that amendments to CEQA aimed at housing infill do not automatically immunize broad regulatory or zoning changes from full CEQA review when significant unexamined impacts remain.

For land-use practitioners, housing developers, and local governments across California, the decision has several notable implications. 

First, and perhaps most significantly, it underscores the importance of properly evaluating changed circumstances when relying on prior environmental documents such as a PEIR. When a previously certified EIR assumed one regulatory framework, such as a 30-foot height limit, a change to that framework may require not only a supplemental or subsequent EIR to address matters that were omitted from the PEIR entirely, but also an updated analysis of matters that were addressed in the PEIR but are affected by the changed circumstances. Save Our Access II applies a fairly rigorous form of scrutiny to the city’s conclusion that the assumptions underlying the PEIR would remain valid even with the 30-foot height limit removed. If other courts follow that approach, it could significantly lessen the benefit (in the form of time and cost savings) of tiering off an earlier environmental document if some of the relevant conditions have changed.

Second, the opinion squarely holds that the new CEQA exemption for infill housing created by AB 130 applies only at a project-level basis, not to broader regulatory actions such as removing a height limit, even if many (or potentially even all) of the individual projects that the regulatory action will facilitate are themselves infill housing developments covered by AB 130. That holding could ensnare cities and counties that seek to align their zoning laws with AB 130.  A CEQA analysis would still be necessary for those changes to local housing policy, even if the individual projects themselves would be exempt from CEQA.

Third, other state laws are likely to ameliorate some, but not all, of the effects of Save Our Access II.  For example, the Density Bonus Law, Cal. Gov. Code §§ 65915-65918, provides additional height, density, and concession incentives for qualifying affordable housing projects.  It generally preempts local zoning regulations, including height limitations, to the extent they would preclude construction of a project that qualifies for the law’s benefits. But the height limit would still apply to projects that do not include the number and type of affordable-housing units necessary to qualify for the Density Bonus Law.  Only a validly enacted measure repealing the height limit can negate all of its effects.

Fourth, this may not be the end of the story. San Diego’s mayor and city attorney have indicated that they plan to seek review in the California Supreme Court, and they may well have significant amicus support in that effort. Given the substantial practical stakes—including potential effects on the high-profile Midway Rising redevelopment plan that would include a new arena, thousands of new housing units, and commercial space—one would expect the state high court to closely scrutinize the Court of Appeal’s analysis.

Finally, the broader context here is also worth noting.  City officials in San Diego placed the 2020 initiative on the ballot without preparing any EIR, and then in 2022 certified the SEIR that addressed only the visual resources and neighborhood character issues in order to place a second initiative on the ballot that same year—all while the initial round of litigation was still pending.  It is difficult to avoid the conclusion that the Court of Appeal viewed the city’s entire process as sloppy and rushed, which may well have colored the court’s ultimate conclusion in both of the Save Our Access cases.  Hindsight is 20/20, but it would have been preferable for the city to proceed more deliberately from the outset.