By William W. Abbott

The courts have been clear: the decisionmaking body has to consider the CEQA document before taking action to granting a discretionary approval. A recent court decision examines a variation on that practice when the approving body approved the CEQA document, but lacked the authority under the local code to do. How does the legislative body cure that error?

The facts involve a proposed infill development in the City of Fresno. In June 2011, the City filed a notice of intent to adopt a mitigated negative declaration for the required conditional use permit and tentative map. The notice provided that the project would require demolition of two older homes located on site. The notice did not reflect that demolition permits were required, or what department or body would grant the demolition permits, or that the Preservation Commission would have any review. In late June, the Preservation Commission conducted a public meeting and ultimately concluded that the buildings were not historical resources. The Commission also approved the mitigated negative declaration. An interested group filed an appeal to the City Council, arguing in part that under the City’s rules, the Commission lacked the authority to approve the negative declaration. In early November, the City Council considered the appeal, affirmed the Commission’s decision, and upheld the Commission’s CEQA findings and determinations. The City then filed a second notice of determination.[1]

Plaintiff then filed suit on CEQA grounds, challenging the City’s procedure and the lack of an EIR. Within a few days, the City issued demolition permits and the buildings were demolished. Following a court trial ten months later, the trial court agreed that the City’s procedure was in error, that the City Council’s action did not cure the error, and ordered the City Council to set aside its decision. The City subsequently filed a return to the writ reflecting that the City Council had held a hearing and approved a revised negative declaration. The plaintiff objected to the return to the writ. On the same day, the City appealed portions of the judgment. The plaintiff filed a cross-appeal.

Reviewing the City code, the court of appeal reached the same conclusion as did the trial court. The city code did not authorize the Commission to act on CEQA documents. To that end, the decision turns on the specifics of the City of Fresno code. As many cities and counties operate with commissions with particular subject matter jurisdiction, this decision has potential relevance. The court of appeal rejected the City’s argument that approval of CEQA documents by the Commission could be reasonably implied from the totality of the City Code.

The court of appeal then turned to the City’s argument that the appeal proceeding undertaken by the City Council cured whatever errors transpired by the Commission, an argument that is successful in many administrative law contexts. In the CEQA context however, the agency must show that the appellate body’s actions met all of CEQA requirements. In this case, the City Council was acting in a limited appellate capacity, and was not the decisionmaking body, as that concept is used in CEQA. Thus, the appeal in this case failed to cure the procedural problem below. The court also noted as flawed that the City Council failed to provide the required CEQA notice of the intent to adopt a negative declaration as well as the failure to adopt the CEQA findings.

Addressing the substantive CEQA issue, the appellate court agreed with the trial court that a reviewing court applies the substantial evidence test to the question of whether or not historical resources are present. To make this argument, the plaintiff/cross appellant effectively asked the court of appeal to reverse its earlier decision on this very issue: Valley Advocates v. City of Fresno (2008) 160 Cal.App.4th 1039. The court of appeal declined to do so, noting the distinction with the “fair argument” test which otherwise dominates the standard of review for negative declarations.

William W. Abbott is a partner 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.

[1] The decision is silent as to when or if the City acted on the conditional use permit and tentative map.