CITIZENS FOR THE RESTORATION OF L STREET, Plaintiffs and Appellants,
CITY OF FRESNO et al., Defendants and Appellants FFDA PROPERTIES, LLC et al., Real Parties in Interest and Appellants.
APPEAL from a judgment of the Superior Court of Fresno County No. 11CECG04172. Jeffrey Y. Hamilton, Jr., Judge.
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Brandt-Hawley Law Group and Susan Brandt-Hawley for Plaintiffs and Appellants.
Stoel Rives, Timothy M. Taylor, Carissa M. Beecham; Douglas T. Sloan and Francine M. Kanne for Defendants and Appellants and for Real Parties in Interest and Appellants.
The City of Fresno (the City) approved a residential infill development project in downtown Fresno to build 28 two-story townhouses. The project site contained vacant parcels and two lots with houses built in the early 20th century. A citizens group interested in historical resources in downtown Fresno challenged the City’s approval of the townhouse project, particularly its decision to issue demolition permits for the two houses. The trial court decided the City violated certain procedural requirements of the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.) in approving the project, but applied the correct legal standards in determining the two houses were not “historical resources” protected by CEQA. Both sides appealed.
The City’s appeal concerns (1) whether CEQA and other applicable law allowed it to assign the authority to approve both the mitigated negative declaration and the project to the City’s Historic Preservation Commission (Preservation Commission) and (2) whether the City actually delegated that authority.
Plaintiff’s cross-appeal concerns whether the City and the Preservation Commission should have prepared an environmental impact report (EIR) for the project because plaintiff presented a fair argument that the two homes, or the district where they and the project were located, were “historical resources” and thus part of the environment protected by CEQA.
We conclude that CEQA allows a local lead agency, such as the City, to delegate the authority to approve a mitigated negative declaration and
a project to a nonelected decisionmaking body such as the Preservation Commission. In this case, however, the Fresno Municipal Code did not actually authorize the Preservation Commission to (1) complete the environmental review required by CEQA and (2) approve the mitigated negative declaration. As a result, the Preservation Commission’s approval of the mitigated negative declaration did not comply with CEQA.
As to historical resources, we confirm our statutory analysis in Valley Advocates v. City of Fresno (2008) 160 Cal.App.4th 1039 [72 Cal.Rptr.3d 690] (Valley Advocates) and conclude that the substantial evidence test, rather than the fair argument standard, applies to a lead agency’s discretionary determination of whether a building or district is an historical resource for purposes of CEQA. Therefore, the trial court did not err when it applied the substantial evidence test to the City’s determination that no historical resources were impacted by the project.
We therefore affirm the judgment.
The plaintiff in this CEQA case is an unincorporated association named “Citizens for the Restoration of L Street.” Plaintiff was formed in June 2011 to protect the historic significance of a neighborhood at the upper (i.e., northwest) end of L Street in downtown Fresno.
Defendants include the City, its city council (City Council), City’s development and resource management department, and the City’s Preservation Commission.
The real parties in interest include FFDA Properties, LLC and Granville Homes (collectively, Granville), the developers of the project. Plaintiffs also has named the Fresno Redevelopment Agency and the Housing Authorities of the City and the County of Fresno (the Housing Authority) as real parties in interest.
Granville proposed building 14 duplex structures containing 28 two-story townhouses on 1.29 acres of land located in the 1700 block of L Street in downtown Fresno (the Project). The project site contained vacant lots and two houses.
One house on the project site was built in 1906 by Judge William D. Crichton and was designated a Heritage Property by the Preservation Commission in 2006 (the Crichton Home). The other house was built in 1910 and was known as the Julia Sayre Home (the Sayre Home). The Sayre Home had no historical listing or designation.
In August 2010, the Housing Authority and Granville entered into a purchase and sale agreement and joint escrow instructions that stated the Housing Authority would sell Granville various parcels contained within the Project site, including the Crichton and Sayre homes, in exchange for Granville’s payment of $525,000 plus additional amounts to reimburse certain demolition costs. Granville’s obligation to purchase was contingent upon a number of events, including (1) the issuance of demolition permits for the Crichton Home and the Sayre Home and (2) the approval of a conditional use permit for the Project.
The physical condition of the Crichton Home is addressed in many documents in the administrative record. By June 2011, the Crichton Home had been vacant for five years and was in a state of disrepair. It had lost the majority of its historic integrity because of the loss of original woodwork, enclosure of the original front porch, alteration of a character-defining bay window, installation of vinyl sash windows, replacement of the original roof, 
and other inappropriate restoration and alteration elements. Inspections showed the interior was 90 percent gutted, the upstairs ceiling was collapsing, and there was the presence of fungus, dry rot, feline and human feces, lead paint and asbestos.
In 2011 the Sayre Home was being used as an office for a nonprofit organization, although it was in a state of disrepair. The Sayre Home was not designated a Heritage Property because innumerable alterations led to a loss of its integrity as an historical building.
A proposed “L” Street Historic District with various boundaries has been identified in three separate survey reports prepared since the early 1980s. The first survey proposed a district covering 17 blocks. In 1994, the “Ratkovich Plan Historic Resources Survey” proposed a district with consolidated boundaries that included both the Crichton Home and the Sayre Home as contributors, meaning they would contribute to the historical significance of a local district. The proposal was never adopted by the City Council.
Most recently, the City’s “Upper Triangle Areas Historic Property Survey” of 2007 included a proposed “L Street Residential Historic District” of 21 properties, eight of which had been individually designated on Fresno’s local register of historical resources. The Crichton Home was the only Heritage Property among the 21 properties. Four of the 21 properties have burned and been demolished. Five of the structures designated on the local register as historical resources are located across from the project on the opposite side of L Street. In ascending order by street address, the properties are referred to as the Kutner Home; the Bean Home; the Towne Apartments; the Long (Black) Home; and the Helm Home (Alamo House).
Despite the three survey reports, neither the Preservation Commission nor the City Council has taken action to designate the area an Historic District.
In January 2011, Granville submitted applications for a conditional use permit and a vesting tentative tract map for the duplex project. In April 2011, the Housing Authority submitted applications for demolition permits for the Crichton Home and the Sayre Home.
In June 2011, a CEQA initial study and mitigated negative declaration for the Project was completed. It concluded that the project would not result in any significant environmental impacts. With respect to historical resources, the mitigated negative declaration stated that neither the Crichton Home nor the Sayre Home would qualify as historical resources under the definitions contained in section 21084.1 or Guidelines section 15064.5. As a result, the mitigated negative declaration concluded that demolition of the two homes would not cause a substantial adverse change in the significance of an historical resource.
On June 7, 2011, City filed a “NOTICE OF INTENT TO ADOPT A MITIGATED NEGATIVE DECLARATION” concerning the applications for a conditional use permit and a vesting tentative tract map. The notice stated that the project would require the demolition of the two structures on the project site, identified the Crichton Home as one of the structures, and stated the Crichton Home was a Heritage Property as defined in section 12-1603 of the Municipal Code.
The notice of intent stated that any interested person could submit written comments on or before June 27, 2011, to a person and address at the City’s development and resource management department. The notice also stated that the development applications and the proposed environmental finding of no significant impact “have been tentatively scheduled to be heard by the Planning Commission on July 20, 2011 at 6:00 p.m. or thereafter.”
The notice of intent omitted the following information: (1) The fact that demolition permits were necessary; (2) The identity of the department or body that would approve the demolition, regardless of whether that approval would include the issuance of demolition permits; and (3) The fact that the Preservation Commission would have any role in reviewing the project, much less that it would consider or approve the mitigated negative declaration.
Preservation Commission Hearing
On June 27, 2011, the Preservation Commission held a public meeting where it considered the mitigated negative declaration and the issuance of a demolition permit for the Crichton Home. At the meeting, a staff report was presented and members of the public were allowed to present their views. The staff report again described the deteriorated condition of the Crichton Home and stated the building had been unsuccessfully offered for sale at $1 to any person or agency that could relocate the building.
By a four-to-one vote, the Preservation Commission adopted a motion to elect not to exercise its discretion under CEQA to determine that any of the buildings on the project site were historical resources. It also adopted a motion approving the mitigated negative declaration.
On June 30, 2011, City filed a “NOTICE OF DETERMINATION” that contained essentially the same project description as the notice of intent that was filed on June 7, 2011. The notice of determination stated: “This is to advise and certify that the Historic Preservation Commission of the City of Fresno, the Lead Agency, approved a demolition permit for the above-described project on June 27, 2011 and has made the following determinations regarding this project:.…”
The determinations were that the project would not have a significant effect on the environment, a mitigated negative declaration was prepared for the project pursuant to the provisions of CEQA, and mitigation measures were made a condition of approval of the project.
Plaintiff’s Appeal of Preservation Commission Decision
On August 1, 2011, plaintiff sent City Council a letter appealing the adoption of the mitigated negative declaration by the Preservation Commission on June 27, 2011, pursuant to section 21151, subdivision (c). The letter asserted, among other things, that the Preservation Commission did not appear to have authority under the Municipal Code to make CEQA determinations.
On November 3, 2011, the City Council considered the appeal. The City Council unanimously passed a motion (1) upholding the Preservation
Commission’s finding that the Crichton Home did not fit within the definition of an historical resource under the CEQA Guidelines; (2) electing not to exercise the City Council’s discretion to determine that any of the buildings on the project site were historical resources or that the area was an Historic District and, as such, an historical resource; and (3) upholding the Preservation Commission’s approval of the environmental findings and determination of the mitigated negative declaration.
On November 4, 2011, City filed another notice of determination concerning the project and mitigated negative declaration. The notice stated that the City Council had considered and “upheld” the action of the Preservation Commission on June 27, 2011.
On Monday, December 5, 2011, plaintiff filed a petition for writ of mandamus alleging that the administrative record supported a fair argument that the project may have significant impacts on historical resources, including the potential Historic District. Plaintiffs alleged that the preparation of an EIR instead of a mitigated ...