San Diego’s Midway Rising development has been delayed once again, extending the timeline on a project that has been in the works for more than a decade.
The project aims to revitalize an industrial area that is centrally located near job centers, the airport and the coast. Midway Rising would build thousands of new homes and redevelop the aging Pechanga Arena into a new state of the art facility. The project’s price tag is estimated at $4 billion and would require the city to lease a large chunk of public land to the developers.
To facilitate Midway Rising and other future developments, city leaders want to exempt the neighborhood from a height limit that was passed in 1972. In recent years, San Diego voters approved the exemption — twice. Both times, a small local group called Save Our Access sued, arguing that the city didn’t do adequate environmental impact reporting before putting the issue on the ballot. Both times, the courts agreed.
The city is appealing the most recent ruling to the California Supreme Court, and the case could have a wide-ranging impact on how environmental laws are applied statewide. California’s leaders are looking to boost housing production by cutting red tape and reducing what they see as excessive environmental review requirements.
Nevertheless, Midway Rising shows how ambitious housing projects can still get caught up in the regulatory process that has made housing so hard to build in California.
John McNab leads Save Our Access. He said the group filed suit because of the “severe impacts the project would have on San Diego.”
“It's the foundation of sustainable development,” McNab said. “You do things by looking at all the impacts and making sure that your decision is wise.”
But UC Davis law professor Chris Elmendorf said McNab is weaponizing the California Environmental Quality Act (CEQA). He argues the regulatory reforms recently passed in Sacramento should inform how judges rule on cases like this.
“For the court just to say none of that has any bearing on whether we interpret CEQA in a way that allows one rando who doesn't like dense housing to hold it up for a decade — that’s insane," Elmendorf said.
Regardless of the lawsuit’s outcome, Midway Rising may still move forward. State lawmakers in recent years have given developers and cities more tools to override local restrictions, including the state’s density bonus law and options for streamline the environmental review process under CEQA.
Height limit history
To understand what’s going on with Midway Rising, you have to go back more than half a century.
The “Coastal Height Limit Overlay Zone” established San Diego’s 30 foot height limit in 1972. In the decades since, it put a ceiling on population density in the city’s coastal communities.
In 2008, the City of San Diego updated its General Plan and started revising the city’s many different community plans — like the Midway-Pacific Highway plan, where the Midway Rising project would be located.
Between 2010 and 2017, the city did extensive outreach in this area. In 2018, the city released an environmental impact report that analyzed redeveloping the area, and then approved the Midway-Pacific Highway Community Plan update.
Crucially, the update didn’t exempt the area from the coastal height limit.
But the zoning approved in the community plan update allows up to 10,155 new homes regardless. An exemption from the 30 foot height limit would only impact the shape and orientation of the buildings, not the number of homes allowed.
In 2020, District 2 Councilmember Jennifer Campbell and then-District 6 Councilmember Chris Cate proposed exempting the area from the coastal height limit to help facilitate development, including Midway Rising.
That exemption required a public vote. The city put the question on the 2020 ballot and 350,855 San Diegans, or 56% of voters, approved the initiative.
Then came the lawsuits.
CEQA challenges
Save Our Access sued the city almost immediately. The lawsuit argued that the height limit exemption should not have been placed on the ballot without doing an environmental impact report on the potential for taller buildings.
Save Our Access claimed the visual impacts of tall buildings were not studied in the 2018 environmental review.
The city argued that the 2018 report was sufficient, because the height limit exemption would not change the density of homes allowed under the community plan.
The court ruled in favor of Save Our Access, stating that the city had not considered the impact of taller buildings in their 2018 report.
So the city went back and completed a Supplemental Environmental Impact Report (SEIR) that studied the visual impacts of tall buildings. The city determined that everything else had already been addressed in the initial EIR back in 2018.
UC San Diego professor Bill Fulton, who served as San Diego’s city planning director from 2013 to 2014, said this was an understandable decision.
“I think in this case, the city chose to try to deal with what they viewed as the specific problem identified by the courts,” he said. Fulton reasoned that the city was trying to keep the focus of the SEIR narrow so they wouldn’t have to restart the whole process.
The City Council put the height limit issue on the ballot again in 2022. For a second time, voters approved the exemption — this time with 51% of the vote.
And for a second time, Save Our Access sued. Again, the court ruled in the group’s favor.
McNab said his primary concern is traffic.
“(It will) freeze the freeways, the north-south corridor people take every day,” McNab said.
A development like Midway Rising would undoubtedly bring more vehicles to the area. But the project plan envisions a walkable neighborhood with shops, parks, and walking and biking paths, which would reduce reliance on cars.
And the development team says they’re working closely with the city and transit agencies to connect the project to transit options and “support improved neighborhood mobility,” according to its website.
Plus, a big part of San Diego’s traffic problem is the lack of housing near jobs. The Midway Rising development is squarely in the middle of several major regional job centers.
McNab says the land should be redeveloped into a public park, but he wasn’t clear on who would pay for that redevelopment.
He also expressed the opinion that building new housing wouldn’t make San Diego more affordable. But over the past six years, a KPBS analysis found, the places in the region that had the most homes permitted also had the slowest rent growth.
When asked if Save Our Access would support a Midway Rising development that remained under the 30 foot height limit, McNab said no.
“We support a bay to bay destination sports and recreation park that raises San Diego’s stature as a forward looking city on our public land,” McNab said in a text message.
Recent ruling and legal questions
Save Our Access argued that the city’s supplemental environmental review didn’t address all the possible environmental impacts from taller buildings.
The court in its most recent decision agreed. The possible impacts cited in the decision include: noise and vibration impacts from construction; lunar cycles of sensitive wildlife; and the possibility of attracting peregrine falcons, which like to roost in tall buildings.
“How will building foundational support for numerous tall buildings in the area impact the geological conditions collectively?” the panel of judges wrote. “Will they cumulatively impact hydrology and water quality, such as groundwater? Neither the initial study nor the 2022 SEIR address such questions.”
But Elmendorf said this places an undue burden on the city.
“What a court should be doing is, it should be looking at what comments were submitted during the scoping process,” Elmendorf said.
The city offered their supplemental environmental review to the public for comment, and lawyers on behalf of Save Our Access submitted objections. The city addressed the concerns point-by-point in the SEIR.
If the city addressed the comments, according to Elmendorf, it should be up to the person or group filing the lawsuit to prove the city’s responses weren’t adequate.
“That's the only way that CEQA can be implemented in a manner that allows, like, a modicum of predictability for the city,” Elmendorf said.
According to Fulton, CEQA does not set any specific threshold or metric for determining what environmental impacts require further study. This is different from other states’ environmental protection laws, he said, and is one criticism of CEQA.
Instead, Fulton said the environmental experts that are hired by the city or by groups like Save Our Access decide what is significant, and their analyses are reviewed by the courts. When two sides of a lawsuit have conflicting analyses, it’s up to judges to decide who’s right.
“So, that puts judges in the position of having to be environmental experts as well,” Fulton said.
He added that critics of CEQA believe that’s a problem, in part because it creates a lot of room for interpretation from the judicial system. And that creates unpredictability for city planners and project developers who are trying to do their due diligence before the case reaches the court.
Elmendorf said that a city should generally get the benefit of the doubt that their analysis is accurate.
However, in this case, the courts were reviewing a planning change that was put to voters, not an individual development. Fulton said the interpretation of CEQA was very broad as a result.
“The judge(s) made that point very, very clear that, particularly in the case of a ballot measure, the public needed to know all of the potential environmental impacts, not just those that had been previously discussed,” Fulton said.
What’s next for Midway Rising
Elmendorf said the state Legislature has made it clear that they are trying to stop people from abusing the CEQA objection process and instead encourage more housing.
The biggest change was Senate Bill 131. The law reformed how CEQA is applied to housing developments in urban settings and cleared the way for infill development to be approved without additional environmental review. Lawmakers reasoned the environmental impact would have already been studied in the planning process.
But Fulton made the point that legislative efforts to absolve individual development projects from environmental review could mean courts apply an even more rigorous standard at the planning level.
“If the CEQA analysis stops at the community plan, it has to be bulletproof,” Fulton said.
The Midway Rising development may still have a path forward, even if the state Supreme Court upholds the recent court decision. The development team told Voice of San Diego they believe the state's density bonus law will give them the ability to exceed the local height limit regardless of the result of the city’s appeal in court.
The development team did not respond to a request for comment.
In 2022, an affordable housing development in Pacific Beach used the density bonus law to exceed the 30-foot height limit. A letter from the California Department of Housing and Community Development sent to the city in 2022 confirmed that the density bonus law trumps any local zoning ordinance — voter approved or not.
The timeline, though, has now been extended even further while the city and development team review the project in light of the court’s latest ruling.
Mayor Todd Gloria’s office did not respond to a request for comment. In a statement, the mayor said he is determined to fight the latest decision by asking the state Supreme Court to hear the case.
"Failure is simply not an option, and we will get this done,” Gloria said.
