McCann v. City of San Diego

94 Cal.App.5th 284

312 Cal.Rptr.3d 34

Margaret MCCANN, Plaintiff and Respondent,

v.CITY OF SAN DIEGO et al., Defendants and Appellants.

D081185

Court of Appeal, Fourth District, Division 1, California.

Filed July 19, 2023

Law Office of Todd T. Cardiff, Todd T. Cardiff for Plaintiff and Respondent.

Mara W. Elliot, City Attorney, M. Travis Phelps, Assistant City Attorney, and Jana Mickova Will, Deputy City Attorney for Defendants and Appellants.

McCONNELL, P. J.

INTRODUCTION

This is the second appeal arising from Margaret McCann's dispute with the City of San Diego (City) over the City's environmental review process of a project to convert overhead utility wires to an underground system in several neighborhoods. (See McCann v. City of San Diego et.al. (2021) 70 Cal.App.5th 51, 285 Cal.Rptr.3d 175 ( McCann I ).) In the first appeal, McCann alleged the City violated the California Environmental Quality Act (CEQA) ( Pub. Resources Code, § 21000 et seq. )¹ by failing to properly consider the environmental impact of two undergrounding projects. ( McCann I, supra , at p. 51, 285 Cal.Rptr.3d 175.) We concluded the City's environmental review process was incomplete as to one set of projects that were approved through a mitigated negative declaration (MND Projects), because the City failed to analyze whether they were consistent with the City's Climate Action Plan. ( Id. at pp. 91-97, 285 Cal.Rptr.3d 175.) We reversed the judgment as to the MND Projects and directed the trial court to issue a peremptory writ of mandate ordering the City to set aside three resolutions that approved the projects. ( Id. at p. 99, 285 Cal.Rptr.3d 175.)

On remand, the trial court issued a peremptory writ of mandate ordering the City to set aside the resolutions that approved the MND Projects. The trial court also ordered that it would retain jurisdiction over the matter until it determined the City complied with the relevant provisions of CEQA. The City rescinded the project approvals as directed by the trial court and asked the court to discharge the writ. McCann objected to the City's return and argued that the trial court should not discharge the writ because the City did not perform the relevant environmental analysis or affirmatively indicate that it abandoned the projects. The trial court sustained McCann's objection and declined to discharge the writ.

The City appeals the trial court's post-judgment order declining to discharge the writ. The City argues it has fully complied with the directives of the writ, as well as the remedial provisions of CEQA, and therefore the trial court has exceeded its jurisdiction by failing to discharge the writ. As we discuss, we conclude the City has fully satisfied the writ and therefore the writ must be discharged.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. McCann I

The factual details of this case are fully set forth in our prior opinion in McCann I and we need not fully recount them here; we limit our discussion of those facts necessary to reach the appropriate disposition in the instant case. It suffices to say that the dispute in this case is related to the City's "decades-long effort to convert its overhead utility systems, suspended on wooden poles, to an underground system." ( McCann I, supra , 70 Cal.App.5th at p. 66, 285 Cal.Rptr.3d 175.) McCann, a resident of a neighborhood within the undergrounding project, challenged, inter alia, the need for the underground system to be supplemented with above-ground transformers housed in three-foot-tall metal boxes in the public right-of-way. ( Id. at p. 65, 285 Cal.Rptr.3d 175.) On appeal, she argued that the City failed to complete the requisite environmental review process delineated in CEQA for two sets of projects within the City's broader undergrounding plan. ( Ibid. )

As to the first set of projects, McCann argued the City erred when it determined the projects were exempt from CEQA. ( McCann I, supra , 70 Cal.App.5th at pp. 65-66, 285 Cal.Rptr.3d 175.) We concluded McCann's claims were barred because she failed to exhaust her administrative remedies set forth in the San Diego Municipal Code requiring her to file an administrative appeal of the exemption determination. ( Id. at p. 76, 285 Cal.Rptr.3d 175.)

The second set of projects—the MND Projects at issue in this case—were approved by the City through the use of a mitigated negative declaration. ( McCann I, supra , 70 Cal.App.5th at p. 71, 285 Cal.Rptr.3d 175.) McCann argued that the City violated CEQA by: (1) impermissibly segmenting the citywide undergrounding project into smaller projects; (2) not defining the location of each transformer box before considering the environmental impact of the plan; (3) failing to consider the significant impact on aesthetics caused by the projects; and (4) determining that the projects would not have a significant environmental impact due to the greenhouse (GHG) emissions. ( Id. at p. 66, 285 Cal.Rptr.3d 175.) We rejected each of McCann's assertions, except for her claim that substantial evidence did not support the City's finding that the projects would not have a significant environmental impact due to GHG emissions. ( Id. at pp. 84-91, 285 Cal.Rptr.3d 175.) We concluded that because the City did not analyze whether the projects were consistent with the GHG reduction measures included in the City's Climate Action Plan, substantial evidence did not support the City's finding that the projects would not have a significant environmental impact. ( Id. at p. 91, 285 Cal.Rptr.3d 175.)

Accordingly, in McCann I , we reversed the trial court's judgment as to the MND Projects and affirmed the judgment in all other respects. ( McCann I, supra , 70 Cal.App.5th at pp. 98-99, 285 Cal.Rptr.3d 175.) Our disposition directed the trial court to "enter a new judgment granting the petition as to the second cause of action challenging the MND Projects and to issue a peremptory writ of mandate directing the City to set aside its March 5 and March 7, 2019, resolutions adopting the mitigated negative declaration, the mitigation monitoring and reporting program, and establishing the relevant utility undergrounding districts." ( Id. at p. 98, 285 Cal.Rptr.3d 175.)

B. Proceedings on Remand

On March 25, 2022, the trial court issued a peremptory writ of mandate ordering the City to set aside the March 5 and March 7, 2019, resolutions. The trial court further ordered the City to suspend all activity related to the projects that may result in any change to the physical environment until the City reconsidered the rescinded resolutions and brought them into compliance with the requirements of CEQA. The court explained that the writ did not purport to direct the City to exercise its lawful discretion in any particular way, and that the court would retain jurisdiction over the matter by way of a return, pursuant to section 21168.9, subdivision (b), until the court determined the City complied with CEQA.

On June 15, 2022, the City filed a return to the peremptory writ of mandate. Resolution No. 314160—a resolution passed by the San Diego City Council on June 14, 2022—was included as an exhibit to the City's return. The resolution rescinded the March 2019 resolutions that established and approved the MND Projects. Specifically, Resolution No. 314160 declared, "the Council rescinds the certification of the Mitigated Negative Declaration approved by the Council through [the March 5, 2019, resolution]; rescinds establishing UU602 Sampson Street, UU61 Redwood Street, UU616 Hilltop Drive PH II, and UU628 Fairmount Avenue Underground Utility Districts, approved by the Council through [the March 7, 2019, resolution]; and rescinds establishing UU908 Block 3DD, UU789 Block 4Y1, UU875 Block 6H1, and UU668 Block 8R1 Underground Utility Districts, approved by the Council through [the March 7, 2019, resolution]."

In their return, the City asked the trial court to discharge the writ and vacate an order to show cause related to contempt proceedings that are not relevant to the issues raised in this appeal. McCann filed an objection to the City's return and argued that the writ should not be discharged until the City proved it complied with CEQA by preparing a legally sufficient environmental analysis of the GHG emissions of the MND Projects. The City filed a response to McCann's objection and argued that they had fully complied with the terms of the writ by rescinding the project approvals.

The trial court issued a tentative ruling sustaining McCann's objection and heard argument from the parties the following day. The City argued that the disputed MND Projects had been completely rescinded and therefore the trial court exceeded its jurisdiction by failing to discharge the writ. The City expressly told the court "the projects have been rescinded. So there is no project and that's not in dispute."

The trial court sustained McCann's objection and confirmed its tentative ruling. In rendering its ruling, the court recognized that case law would seemingly allow McCann to simply file a supplemental or new petition to challenge the City's future compliance with CEQA as it relates to the undergrounding projects. Nevertheless, the trial court concluded, "based on this particular writ and the status of this particular case and the verbiage of this particular return, the court sustains [McCann's] objection and declines to discharge the writ at this time. The state of affairs will persist until the City files a supplemental return which allows the court to conclude the City has complied with the provisions of CEQA." The City timely appealed the trial court's post-judgment order denying its request to discharge the writ.

II. DISCUSSION

The City argues it complied with the directives of the trial court's peremptory writ of mandate, as well as the remedial provisions set forth in section 21168.9, subdivision (a)(1), by rescinding the MND Projects approvals. Thus, the City contends that the trial court exceeded its jurisdiction by declining...