In a follow up case to the Friends of Willow Glen Trestle v. City of San Jose (2016) 2 Cal.App.5th 457 (“Friends”), petitioners challenged the City’s action seeking a new Streambed Alteration Agreement (“SAA”) from the Department of Fish & Wildlife (“DFW”) after the original one had expired. In Friends, the City successfully defended its mitigated negative declaration (“MND”) adopted in support of the City’s trails plan which proposed to demolish the nearly 100 year-old wooden railroad trestle (see AK Blog https://blog.aklandlaw.com/2016/08/articles/ceqa/agencys-historical-resource-determinations-subject-to-deferential-substantial-evidence-review-standard/ ). The primary issue was whether the City had properly determined that the trestle, which was not listed on the California Register of Historical Resources (the “State Register”), was not a historical resource that would require additional environmental review.
A year after the appellate court decision was issued, the California State Historical Resources Commission approved the listing of the trestle on the State Register. That same year, the City’s original SAA approved for the project had expired, and the City now had to submit a new request to DFW. The City submitted the required Notification of Lake or Streambed Alteration for the project in early 2018, and the final SAA was issued in August 2018. Petitioners filed suit seeking an injunction to prevent the demolition of the trestle, arguing the City’s action was a new discretionary approval requiring additional environmental review under CEQA, which by necessity would require the City to now consider the trestle’s existence on the State Register. The trial court denied the petition and the petitioners appealed.
The appellate court affirmed. Petitioners argued that merely seeking and accepting the SAA was itself a discretionary action, because the City always “‘retain[s] discretion to reconsider or alter’ the project.” Thus, under this theory, the decision to seek another SAA was a subsequent discretionary decision to re-approve the project. Relying on the subsequent review principles set forth by the California Supreme Court in Friends of College of San Mateo Gardens v. San Mateo County Community College Dist. (2016) 1 Cal.5th 937 (see AK Blog https://blog.aklandlaw.com/2017/06/articles/ceqa/ceqa-better-second-time-around/), and CEQA Guidelines section 15162, the court held that the City’s action to seek a new SAA did not trigger new subsequent environmental review. It reasoned that petitioners’ argument was counter to the public policy of favoring finality and efficiency that is embodied in the CEQA Guidelines. (Id. §15162(c) [“Information appearing after an approval does not require reopening of that approval.”].) And because the original approval contemplated the need for the City to acquire an SAA in order to complete the project, the court concluded that the City’s action to seek a new SAA was nothing more than “simply implementing the project that it had already approved in 2014.” (emphasis in original.)
Daniel Cucchi is Senior Associate at Abbott & Kindermann, Inc. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., 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.