By Leslie Z. Walker

In Juana Briones House v. City of Palo Alto (October 27, 2010, H033275) ___ Cal.App.___the Sixth District Court of Appeal found the provision of the Palo Alto municipal code requiring a 60 day delay prior to the issuance of a demolition permit did not render the act discretionary. The City properly treated the demolition permit as ministerial and exempt from environmental review under CEQA.

Juana Briones de Miranda is thought to be a pioneer settler of North Beach in San Francisco. In 1988, the owners of the Juana Briones House in Palo Alto (the “House”) entered into a historic preservation contract pursuant to the Mills Act (Gov. Code, § 50280). Unable to finance repair of earthquake damage, the owner sold the House to the Meubs. The Meubs renovated the house without securing permits and in violation of the Mills Act. In 1996, the Nulman and Welczer purchased the House. After a year of unsuccessful negotiations with the City of Palo Alto (“City”) over the restoration of the property, Nulman and Welczer informed the City that they would not renew their Mills Act contract and applied for a demolition permit. The City denied the permit and Nulman and Welczer requested a de novo hearing. No hearing was ever noticed and appellants filed an action for administrative mandamus ordering the City to either give them a hearing or grant the demolition permit, and declaratory relief relieving them of further obligations under the Mills Act. The City cross complained for enforcement of the Mills Act among other claims. The Court issued a writ of mandate compelling the City to hold a hearing. The City appealed the writ and the court affirmed the judgment. The City held a hearing before the Director of Planning and Community Environment wherein the Director determined the project was ministerial and not subject to CEQA, and issued the demolition permit.

Friends of Juana Briones House filed a petition challenging the grant of the demolition permit. The trial court found for petitioner on the grounds that the demolition permit was discretionary and thus subject to CEQA. The Real Party in Interest appealed.

The Palo Alto Municipal Code (“Municipal Code”) section 16.49.070 provides that a demolition permit to demolish a historic structure outside of the downtown area “(a) requires a permit application and imposes a 60-day moratorium period, (b) requires referral to the City’s Architectural Review Board or Historical Resources Board, and (c) permits an extension of the moratorium for up to one year . . .” Appellants argued the section does not grant the City any discretion to decide whether the permit would issue or how the demolition would be carried out, and thus is a ministerial permit. Respondents argued the mandatory moratorium in section (a) qualifies the ordinance as discretionary because it gives the City time to consider alternatives.

The Court found that under the Municipal Code the issuance of the demolition permit was ministerial because 1) the decision involved only the use of fixed standards or objective measurements, and 2) the City did not have the authority to impose conditions on approval of the permit that would render it discretionary.

Fixed Standards

The Court distinguished the case from San Diego Trust & Savings Bank v. Friends of Gill (1981) 121 Cal.App.3d 203 where demolition permits were found to be discretionary solely because the San Diego Municipal Code authorized a demolition delay. In the Friends of Gill case, the relevant municipal code section required that the board investigate and confer with responsible parties, attempt to secure alternatives where appropriate, and take necessary steps for the preservation of the historical site. In comparison, Palo Alto Municipal Code section 16.49.070 contains no such discretionary language. This Court concluded that the phrase imposing a delay on the issuance of the demolition permit did not cause the permit to be discretionary.

Conditions of Approval

The City imposed conditions on the approval of the permit, including the filing of a tree disclosure statement, and other conditions agreed upon by the parties. The Court found that “conditions alone do not render a project discretionary.” The Court explained, “ [t]he mere presence of conditions is thus not dispositive. The pertinent inquiry is whether the appellants could ‘legally compel approval without any changes in the design of its project which might alleviate adverse environmental consequences,’” citing Friends of Westwood v. City of Los Angeles (1987) 191 Cal.App.3d 259, 267.

Leslie Z. Walker 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, 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.