In a case with important implications for government agencies, landowners, developers, and historic preservation activists, the California Court of Appeal clarified the role the California Environmental Quality Act (“CEQA”)[1] plays in the demolition of property that may be historically-significant. In Valley Advocates v. City of Fresno,[2] the Court overturned the City of Fresno’s permit allowing the demolition of a 90-year old apartment building, finding that the City Council failed to exercise discretion in evaluating the permit for compliance with CEQA. The decision has important implications not only for properties which may be historically-significant, but also for non-historic properties undergoing various levels of discretionary review under CEQA.
In September 2004, the defendant City of Fresno applied for a permit to demolish a 90-year old apartment building (hereafter “the Flats”) to build a parking lot adjacent to City offices. Pursuant to the Fresno General Plan, the City’s historic preservation project manager recommended that the request to demolish the Flats be denied. The project manager further recommended that the Historic Preservation Commission nominate the Flats to the City’s local register of historical resources. Although the Historic Preservation Commission voted in favor of the nomination, the City Council ultimately voted against adding the Flats to the local historic register.
The application to demolish the Flats was reviewed by the City’s Planning and Development Department which determined that demolition was exempt from CEQA review because the City Council had rejected the Flats’ listing on the local historical register. Valley Advocates appealed this determination. Valley Advocates argued that, regardless of the City Council’s previous decisions, CEQA required the Council to undertake a second independent consideration of whether the Flats was a historical resource. This second review, according to Valley Advocates, differed from the City Council’s previous consideration because it was performed under the requirements of CEQA rather than the City’s historic preservation requirements.
The Court of Appeal agreed, holding that, under CEQA, a project’s impact on objects of historic significance must be considered when evaluating whether a project impacts the environment.
For purposes of such evaluation, three categories of significance apply: mandatory, presumptive, and discretionary.[3] When the resource is formally listed on the California Register of Historical Resources the historic resource has mandatory significance, whereas when listed on a local register or survey of historical resources it has presumptive significance. In both cases such resources are presumed to be “historically significant” for purposes of CEQA. In contrast, resources of discretionary significance are those resources which, while not listed on either the California Register of Historical Resources or a local register or survey, are determined by an agency to be “historically significant,” based on substantial evidence.
The Flats was not listed on the California Register of Historical Resources or in a local register or survey of historical resources, and therefore did not qualify as a resource of either mandatory or presumptive significance. However, the Court found that the Flats could qualify as a resource of discretionary significance based upon substantial evidence considered by the City Council — thereby requiring the Fresno City Council to consider whether it was historically significant on a discretionary basis. Thus, the Court held that CEQA requires government agencies to at least consider whether a resource is of discretionary significance even if that resource has already been rejected for designation as a local historical resource.
This result not only illustrates the role of historical resources under CEQA review, but also underscores the broad role of agency discretion in making CEQA findings. In considering projects involving potentially-significant historical resources, agencies must consider whether the resource is historically significant, regardless of whether the agency has previously excluded the resource from historical designation. Further, agencies must be careful to fully consider projects under CEQA review, and exercise independent discretion when making CEQA findings.
If you have questions related to the determination of a historical structure or the CEQA process, please contact Matthew Gorman at 562.699.5500.
[1] Cal. Pub. Res. Code § 21000, et seq.
[2] Valley Advocates v. City of Fresno (Perez, Williams & Medina), Cal.App. 5th Dist. 2008.
[3] Cal. Pub. Res. Code § 21084.1.
