By Cori Badgley
Under the California Environmental Quality Act (“CEQA”), the definition of “environment” includes historical resources. If a project has the potential to affect historical resources, it is subject to environmental review. In Valley Advocates v. City of Fresno (2008) No. F050952, the appellate court held that the inquiry of whether a resource should be listed in the local register cannot be relied upon for purposes of CEQA to determine whether a resource is historic. Additionally, the court held that the fair argument standard does not apply to the question of whether a resource is a discretionary historical resource under CEQA.
Perez, Williams & Medina (“Perez”), the real party in interest, applied for a demolition permit to demolish a 90-year-old apartment building and build a parking lot. The City of Fresno (“City”) required that before a demolition permit could be issued for a building over 50-years-old, the historic preservation staff must review the potential listing of the structure in the local register. The City’s historic preservation project manager recommended the denial of the permit and listing of the apartment building in the local register to the Historic Preservation Commission (“Commission”). The Commission agreed with the recommendation and nominated the apartment building for listing. After reviewing the nomination, the City Council disagreed and voted to allow demolition.
Following the City Council’s meeting, the City’s planning and development department filed a Notice of Exemption on the project. The Notice of Exemption was then appealed to the City Council by Valley Advocates and other City residents on the grounds that the apartment building was a historical resource under CEQA, and therefore, none of the exemptions applied. At the City Council meeting deciding the appeal, staff informed the City Council that its earlier determination that the apartment building should not be listed in the local register required the conclusion that the apartment was not a historical resource under CEQA. Upon this advice, the City Council found that the exemption under CEQA applied, and the appeal was denied. Valley Advocates appealed.
The appellate court faced two issues: 1) did the City Council violate CEQA by relying on the earlier determination that the apartment building was not a historic resource, and 2) what standard of review applies to a local agency’s determination of whether or not a resource is historic?
The definition of historical resource under CEQA includes three types: mandatory, presumptive and discretionary. The court found that since the apartment building was not listed in the State Register, a local register or other historical survey, the first two types of historic resources did not apply. However, the apartment building might fall under the third type, discretionary historical resources.
According to the court, CEQA Guidelines section 15064.5(a)(3), which discusses the discretionary historical resources category, addresses a lead agency’s discretionary authority in two ways. “First it limits what the lead agency is allowed to do. Second, it appears to impose an affirmative obligation on the lead agency.” The court explained that the limitation requires that the decision of whether a resource is historic be supported by substantial evidence, and the affirmative obligation requires the lead agency to, at minimum, consider whether the resource is historic for purposes of CEQA. Although the court declined to address the exact scope of the discretion granted to the City, the court held that regardless of the prior determination, by failing entirely to consider whether the apartment building was historic for purposes of CEQA, the City violated its affirmative obligation under section 15064.5(a)(3). Therefore, the decision to uphold the exemption was void.
The court went on to address whether the fair argument standard applies to the determination of whether the apartment building qualifies as a historical resource under the discretionary historical resource category. The fair argument standard is satisfied if there is substantial evidence supporting a fair argument on the matter in question. The court began by distinguishing the prior case of Architectural Heritage Association v. County of Monterey (2004) 122 Cal.App.4th 1095 in which that court applied the fair argument standard to the determination of whether a resource was historic. In this case, the court found that the holding of Architectural Heritage Association was very narrow, and it was also distinguishable because the parties did not argue over the proper standard.
Here, the court found that the fair argument standard did not apply. The court stated that
the fair argument standard would be inconsistent with the concept of a discretionary historical resources category because the fair argument standard presents a question of law.
Additionally, the court found that an exception under the presumptive resources category would be negated if the fair argument standard was applied to the discretionary historical resources category. Therefore, the court held that the fair argument standard did not apply and that the traditional, more deferential substantial evidence test applies to a lead agency’s determination concerning the characterization of certain resources as historic.
Cori Badgley is an associate with Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor 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.