In its August 12 decision in Friends of the Willow Glen Trestle v. City of San Jose, the Sixth Appellate District rejected a claim that the fair argument standard should apply to a lead agency’s determination regarding whether a resource is a historical resource for purposes of CEQA. In doing so, it became the second appellate court (after the Fifth Appellate District) to adopt this rule.
In 2013, the City of San Jose proposed to demolish the Willow Glen Railroad Trestle – a wooden railroad bridge built in 1922 to service industry – and replace it with a pedestrian bridge that would be part of the City’s trail system. The City issued an initial study and mitigated negative declaration for the project that found no impact on historical resources. This finding relied on two documents obtained by the City in 2004, when it proposed a trail project that did not include demolition of the Trestle: (1) a one-page letter from a State Historic Preservation Officer stating that the proposed project would not affect any “historic properties”; and (2) a one-page evaluation by a consulting architectural historian who opined that the Trestle’s design was based on standard plans for wood trestle bridges, the trestles and superstructure were likely replaced during the previous 30 to 40 years, and the Trestle was “a typical example of a common type and has no known association with important events or persons in local history.”
During the comment period on the MND, the City received numerous comments, including from a local historian, a historical architect, and an environmental architect. These comments described the uniqueness and historic importance of the Trestle, stated that the Trestle qualified for listing in the state Register of Historical Resources, and asserted that the 2004 documentation was outdated and contradicted by more recent reports and documents. In January 2014, the City Council adopted the MND, finding that “the existing wood railroad trestle bridge is not a historic resource” because “the design is based on standard plans for wood trestle bridges and has no known association with important persons; the bridge materials were likely replace[d] during the last 30 or 40 years; the trestle is not unique and is unlikely to yield new, historically important information; and the trestle did not contribute to broad patterns of California’s history and cultural heritage.”
In February 2014, petitioner Friends of the Willow Glen Trestle filed a petition for writ of mandate in Santa Clara County Superior Court, asserting that there was substantial evidence to support a fair argument that the Trestle was a historical resource, and therefore an EIR was required. In August 2014, the trial court determined that the fair argument standard applied and that the evidence presented by petitioner met that standard. As a result, the court granted the petition and ordered the City to set aside the approvals for the project and MND and to prepare an EIR. The City appealed.
On appeal, the petitioner first argued that the case was moot because the City had already certified an EIR for the project. The appellate court disagreed: even though an EIR had been certified, the City had neither vacated the original project approvals nor reconsidered the project in light of the EIR’s analysis. Because the City would not be required to take those actions if it succeeded on appeal, the appeal was not moot.
The court of appeal then addressed the issue of whether the fair argument or substantial evidence standard applies to a lead agency’s determination that a resource is a “historical resource” under CEQA section 21084.1. The court began by examining the language of section 21084.1, which provides that (1) a resource listed in (or determined to be eligible for listing in) the California Register of Historical Resources is deemed to be a historical resource, and (2) a resource included in a local register of historical resources, or deemed significant pursuant to statutory criteria, is presumed to be historically or culturally significant, unless the preponderance of the evidence demonstrates that the resource is not historically or culturally significant. The final sentence of section 21084.1 provides that the fact that a resource is neither deemed nor presumed to be a historical resource under these criteria – as was the case with the Trestle at issue – “shall not preclude a lead agency from determining whether the resource may be an historical resource” for CEQA purposes, yet does not specify whether the fair argument or substantial evidence standard applies to such a determination.
The court found the treatment of “presumed” historical resources in section 21084.1 to be instructive. The fact that a lead agency may find such a “presumed” historical resource not to be a historical resource if the preponderance of the evidence supports the lead agency’s finding “necessarily establishes that such a finding would not be reviewed under the fair argument standard. The inclusion of a resource in a local historical register will by itself generally create a fair argument that the resource is historical, yet the statute plainly permits the lead agency to conclude that it is not. It would make no sense for the statute to permit the lead agency to make a finding based on a preponderance of the evidence that a resource is not a historical resource if the fair argument review standard would generally result in the invalidation of that finding. . . . If the lead agency’s standard for its decision is ‘preponderance of the evidence,’ the standard of judicial review logically must be whether substantial evidence supports the lead agency’s decision, not whether a fair argument can be made to the contrary.” As such, “it cannot be that the Legislature intended for the standard of judicial review for a lead agency’s decision under the final sentence of section 21084.1 to be fair argument rather than substantial evidence. The final sentence of section 21084.1 imposes no presumption and sets no standard for the lead agency’s decision. The Legislature intended for the lead agency to have more, not less, discretion under the final sentence, and it is inconceivable that the lead agency’s decision under that sentence would be subject to less deferential review than its decision regarding a resource that is presumed to be a historical resource.”
The Sixth District concluded by finding that this interpretation of the statute was consistent with both CEQA Guidelines section 15064.5(a)(3) – which requires the lead agency’s determination regarding a historical resource to be “supported by substantial evidence in light of the whole record” – and with the Fifth District’s decision in Valley Advocates v. City of Fresno (2008) 160 Cal.App.4th 1039 and other appellate decisions.