When is a historic structure not historic – or, at least, when it is not historic enough to warrant environmental impact report under the California Environmental Quality Act?

When a local government says so, because local governments are accorded deference by courts in reviewing their CEQA actions – at least in cases like this.

At least that was the conclusion of the Sixth District Court of Appeal in a case involving a century-old railroad trestle in the Willow Glen neighborhood of San Jose. The case involves interpretation of a confusing section of CEQA regarding when an historic resource is subject to an EIR. In making the ruling, the court had to go deep into the rabbit hole of substantial evidence and fair argument.

San Jose is planning to tear down the scenic trestle and replace it with a steel structure. In the process, the city concluded that the trestle was not an historic resources and therefore not subject to an EIR. San Jose adopted a mitigated negative declaration instead. Neighbors and historic preservationists sued over the CEQA action, claiming that there was a fair argument that the trestle was a historic resource and therefore an EIR should be required.

Santa Clara County Superior Court Judge Joseph Huber ruled in favor of the neighbors, saying that a fair argument standard should apply. The city appealed but the neighbors tried to have the case declared moot because the city had already prepared an EIR, which it then used to re-approve the project. The court went ahead and considered the case anyway, saying the city’s could be still be required to vacate the approval depending on the outcome of the case.

At issue was whether the city had to apply the “fair argument” standard to the question of whether an EIR was required under the CEQA – that is, is there a fair argument that the project would have a significant impact on the environment (in the case, on an historic resource), as required under one section of CEQA, Public Resources Code Section 21084.1. The law further says that just because a building or structure is not included in any state or historic register and doesn’t meet other criteria for historic significance doesn’t mean that the lead agency can’t still designate it as historic. The neighbors argued that this last provision should apply and the trestle should be considered a historic resource for CEQA purposes even though it had not been designated as historic in any other way.

The court noted that the lead agency has to make a decision about significance based on the “preponderance of the evidence” and therefore the standard of review “logically must be whether substantial evidence supports the lead agency’s decision, not whether a fair argument can be made to the contrary.”

Continuing, Justice Nathan Mihara wrote for the court: “Since the standard of judicial review for a presumptively historical resource is substantial evidence rather than fair argument, it cannot be that the Legislature intended for the standard of judicial review for a lead agency’s decision under the final sentence of section 21084.1 to be fair argument rather than substantial evidence….

“We conclude,” he wrote, “that the Legislature did not intend for the fair argument standard to apply to a lead agency’s decision that a resource is not a historical resource under the final sentence of section 21084.1.”

He added: “To construe the statute otherwise would be inconsistent with the Legislature’s explicit provision authorizing a lead agency to find that a resource that was presumed to be a historical resource was not a historical resource if the lead agency found that a preponderance of the evidence supported its finding. We therefore conclude that the deferential substantial evidence standard of review is the correct standard to apply to the City’s finding that the Trestle is not a historical resource.”

The court remanded the case to Judge Mihara to determine the merits of the MND’s determination that there was no substantial evidence that the trestle is an historic resource

The Case:

Friends of Willow Glen Trestle v. City of San Jose, No. H041563

The Lawyers:

 

For Friends of Willow Glen Trestle: Susan Brandt-Hawley, Brandt-Hawle Law Group, susanbh@preservationlawyers.com 

For City of San Jose: Katie Zoglin, Senior Deputy City Attorney, mailto:katie.zoglin@sanjoseca.gov