Agency's Historical Resource Determinations Subject to Deferential Substantial Evidence Review Standard

Friends of the Willow Glen Trestle v. City of San Jose (2016) ___ Cal.App.5th ___.

By Daniel S. Cucchi

As part of its plan to upgrade its trail system, the City of San Jose (the “City”) proposed to demolish the Willow Glen Railroad Trestle (the “Trestle”), a wooden bridge built in 1922 as part of a rail line accessing the canning districts near downtown, and replace it with a new steel pedestrian bridge.  The City prepared a mitigated negative declaration (“MND”) in support of the project, which found that because the Trestle design was common and was likely largely rebuilt within the last 30-40 years, it was not a historical resource, and, thus, there was no significant impact on the environment.  The Friends of the Willow Glen Trestle (“Friends”) challenged that determination and filed a writ of mandate challenging the MND, arguing that there was a “fair argument” that the Trestle was an historical resource and an environmental impact report (“EIR”) was required.  The trial court agreed with Friends, asserting that the standard of review applied in Architectural Heritage Assn. v. County of Monterey, 122 Cal.App.4th 1095 (2004), was the correct standard.  The City appealed and the appellate court reversed.

The appellate court first dismissed the argument that it was required to follow the holding in Valley Advocates v. City of Fresno, 160 Cal.App.4th 1039 (2008), concluding that it could complete its own determination of the proper legal standard.  It reasoned that, while the case held that the substantial evidence review standard applied to an agency’s determination of whether a resource was historical, the California Supreme Court’s discussion of Valley Advocates in Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086 (2015), was limited to the question of whether a bifurcated standard could apply to a multi-part agency decision and avoided the question that was now before the court. 

The court next turned to the applicable language in Public Resources Code section 21084.1, noting that local agencies have the power to determine that a “presumed” historical resource (see Pub. Res. Code §§ 5020.1(k), 5024.1(g)), is not historic when supported by the preponderance of the evidence.  Thus, it reasoned, that application of the fair argument standard to that decision would directly contradict the statutory language. 

The court completed its analysis by reviewing the line of cases involving the review of agency decisions involving historical resources, concluding that the only cases specifically addressing the issue, Valley Advocates and Citizens for Restoration of L Street v. City of Fresno, 229 Cal.App.4th 340 (2014), were in alignment with the court’s reading of the applicable statutes.  It, therefore, held that the City’s determination of whether the Trestle was an historical resource must be reviewed under the substantial evidence standard and remanded the case back to the trial court to make that determination.      

Daniel S. Cucchi is an associate at Abbott & Kindermann, LLP.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

 

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