Sixth District Holds City’s Approval of a Demolition Permit Is a Ministerial Action

Friends of the Juana Briones House v. City of Palo Alto (2010) 190 Cal.App.4th 286 (Case No. H033275). On November 22, 2010, the Sixth District published its decision in Friends of the Juana Briones House v. City of Palo Alto holding that the approval of a demolition permit under the governing municipal code provision was a ministerial act, and thus was not subject to CEQA. In reaching this conclusion, the court reversed the trial court’s judgment, which had granted the petitioner’s requested writ of mandate. The Sixth District held that under the plain language of the governing municipal code section, Palo Alto Municipal Code section 16.49.070, the city had no authority to impose permit conditions that would render the permit discretionary. The Court also determined that this conclusion was not affected by the possibility that a ministerial building permit might also be issued by the City. Therefore, there was no basis for requiring CEQA review under the “whole of the action” theory.

In 1998, appellants and real parties in interest, Jaim Nulman and Avelyn Welczer, applied to the City of Palo Alto for a permit to demolish their historic home, the Juana Briones House. Previous to appellants’ ownership, there had been efforts to repair the house after structural damage resulting from the 1989 Loma Prieta Earthquake. In February 1996, the City’s building inspector declared the structure a public nuisance and informed the prior owners that abatement was required, by either “repair or demolition.” After unsuccessful discussions with the City regarding how to proceed with restoration of the property, appellants filed an application in October 1998 for a demolition permit pursuant to section 16.49.070 of the City’s municipal code.

The City denied the application and appellants’ request for a de novo hearing under the City’s municipal code, which resulted in the first round of this litigation. Appellants filed a petition for writ of mandate and declaratory relief in February 1999. The case eventually was heard before the Sixth District, which affirmed the lower court’s holding against the City in September 2006, directing the City to conduct hearings, as required by the Palo Alto Municipal Code, on appellant’s application for a demolition permit. Thereafter, the City held a hearing to consider appellants’ application for a demolition permit. The City concluded the permit should be issued immediately. The City issued the permit on April 10, 2007, which was the basis for the current round of litigation. The next day, respondent Friends of the Juana Briones House filed a petition for writ of mandate, alleging the permit approval violated CEQA and the City’s municipal code. The trial court held in favor of respondent, stating that the demolition permit was not wholly ministerial but has discretionary elements. Appellants timely appealed.

On appeal, the key issue addressed by the court was whether approval of the demolition permit was a discretionary action subject to CEQA review, rather than a ministerial action. The court first distinguished between ministerial and discretionary actions by summarizing existing case law. Based on previous case law, the court laid out a “functional” test to distinguish ministerial from discretionary decisions. Under the test, a project is ministerial when a private party can legally compel approval without any design changes to the project that might alleviate adverse environmental impacts. On the other hand, a project is discretionary where the agency has the authority to deny or modify the project to address its potentially significant environmental impacts.

The court articulated three main reasons to support its decision. First, the court stated that based on the plain language of section 16.49.070 of the City’s municipal code, the demolition permit was ministerial. Before a permit application can be filed, the municipal code requires two prerequisites to be met: the home must be vacant and the tenants must be notified. The court found that these prerequisites imposed fixed standards, capable of objective assessment, and thus exhibited ministerial features. Furthermore, the court found that provisions of the municipal code requiring a 60-day moratorium after receipt of a permit application did not result in a discretionary action. With respect to the delay provisions, respondent heavily relied on San Diego Trust & Savings Bank v. Friends of Gill (1981) 121 Cal.App.3d 203, 210, to argue the permit application was discretionary. The court declined to read Friends of Gill so broadly and clarified that Friends of Gill did not stand for the proposition that an agency’s authority to delay a project, without something more, rendered an approval discretionary. Here, the plain language of the municipal code limited the historic resources board’s authority to being able to ask the city council to extend the moratorium, rather than being able to review an application and make a recommendation.

Second, the court found the City did not have authority to impose conditions on approval of the demolition permit. Respondent pointed to several requirements in the findings of approval that it argued were conditions on the permit, including a photographic survey of the house, preservation of native plants, and the donation of an exterior wall plaque. The court rejected respondent’s argument, stating that the pertinent question is whether appellants could legally compel approval without any changes in project design which might alleviate adverse environmental consequences. Here, the findings of approval clarified that these additional requirements were voluntary actions and appellants’ right to the permit was not dependent on these voluntary actions.

Third, the court stated that the possibility of a subsequent building permit being issued did not translate the City’s approval into a discretionary action. Respondents argued that the demolition permit was not a stand-alone project and that a building permit was necessarily part of the project. The court concluded, however, that the issuance of a building permit was also a ministerial action, and that the combination of a ministerial demolition permit followed by a ministerial building permit did not render the project approval a discretionary one. As the court explained, the permits viewed together were not environmentally significant. Each action was ministerial in nature, thus exempt from CEQA. Respondent’s “whole of the action” theory did not change this result.

The court also rejected respondent’s argument that the City violated procedural requirements of CEQA and the City’s municipal code. The court dismissed the CEQA allegations by stating that because the City’s approval was a ministerial action, the City was not bound by the procedural requirements of CEQA governing review of projects.