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.”…