Tag: historic resources


In Old East Davis Neighborhood Association v. City of Davis (2021) 73 Cal.App.5th 895, the Third District found the trial court erred in concluding the record did not support the city’s decision that a mixed-use development project was consistent with the general plan, specific plan, and design guidelines. Rather, using the deferential standard of review applied to general plan consistency determinations, the court found sufficient evidence to support that the city’s consistency determination was not unreasonable.


The challenged project is a four-story mixed-use building development offering ground floor retail and apartment units on the three upper levels. The project is located in an area referred to as a “transition area” between the Downtown Core and the Old East Davis residential neighborhood. Both the Downtown Core and the project site are subject to the Core Area Specific Plan and the Downtown and Traditional Residential Neighborhoods Design (DTRN) Guidelines.

A Sustainable Communities Environmental Assessment/Initial Study (SCEA) prepared for the project concluded the project would be consistent with the general plan and would adhere to the design guidelines.

The staff report recommending approval of the project found the project consistent with general plan policies requiring an “architectural fit” with the city’s existing scale and specific plan policies “encouraging more intense mixed-use development and accommodating buildings with floor areas up to three times the site area, while still maintaining scale transition and small city-character.” The report further explained that consistent with the DTRN guidelines the project had been designed to provide a transition area from Downtown to the Old East Neighborhood and to remain in scale with the adjacent area through use, in part, of stepped-back upper stories to concentrate building mass away from the nearby residential properties.

The city council approved the project finding it conformed with the general plan and the specific plan. Petitioner filed suit challenging the approval on the basis that the project failed to meet requirements for an SCEA assessment and that the project was inconsistent with applicable planning guidelines.

The trial court granted the petition in part reasoning that the project did not meet the general plan’s “fundamental policy” that it be a transition property. The city appealed and petitioner cross-appealed.

Court of Appeal’s Decision

On appeal, the city argued that the trial court failed to afford the appropriate deference to the city’s consistency determination. The appellate court agreed. Articulating the applicable standard of review, the court explained that a general plan consistency determination will only be reversed if it is unreasonable based on all the evidence in the record. It further noted that the city is uniquely competent to interpret adopted planning policies and the reviewing court’s role is only to decide whether the city considered the applicable policies and the extent to which the project conforms with those policies.

Applying the correct standard of review, the court found substantial evidence supported the city’s finding that the project serves as a “transition.” The court noted that the applicable planning documents did not provide a formula for determining what constitutes a “transition.” The determination instead rests on subjective criteria, e.g., “architectural fit” and “appropriate scale and character.” The court rejected petitioner’s arguments that the project could not be a transition between Downtown and Old East Davis because it was the largest building in the area, noting that nothing in the planning documents compels such a conclusion. Accordingly, the court held that the trial court erred in applying a formulistic approach that discounted the step-back design, the SCEA analysis, and other factors relied on by the city.

Petitioner also argued that the project violated DTRN guideline language stating that “a building shall appear to be in scale with traditional single-family houses along the street front” — asserting that the use of the word “shall” makes this language mandatory. The court disagreed. The DTRN guidelines explained that, unlike standards, which use unequivocal language to prescribe minimum acceptable limits, guidelines are descriptive statements that illustrate a preferred course of action. Given this, the court held that the DTRN guideline language was “decidedly subjective.” Even if the language could be deemed mandatory, the court found that the city’s conclusion that the scale of the project was consistent with the DTRN guidelines was reasonable based on the evidence in the record.

Petitioner’s cross-appeal raised three issues with the SCEA that were raised in the trial court, but the judgment did not address. Petitioner argued 1) the SCEA failed to adequately analyze historic resources impacts to the Old East Davis conservation district; 2) the SCEA failed to analyze changes to the project that would be necessary if a lease on part of the project site were not renewed; and 3) the SCEA failed to adequately analyze potential hazardous material impacts associated with the historic railroad use of the site.

The Court of Appeal concluded that petitioner had forfeited its claims because it did not challenge the trial court’s tentative decision, and, in any case, found Petitioner’s claims to be without merit. First, the court found that SCEA concluded that the Old East Davis conservation district was not a historic resource. Second, the SCEA did analyze the potential loss of the lease, and the project approvals allowed for that contingency. Third, the SCEA analyzed the potential for discovering hazardous materials and concluded that any impacts would be addressed through standard regulatory conditions.

Lastly, petitioner argued that the project did not meet the requirements for relying on a SCEA because of potential impacts to historic resources and that the city’s findings under Public Resources Code, section 21155.2, were not supported by substantial evidence. The court rejected these arguments, concluding that petitioner relied on the wrong statutory provision in claiming the project did not qualify for a SCEA and failed to raise its challenge to the City’s findings in its opening brief.

– Nina Berglund

First District Court of Appeal Holds That “Demolition By Neglect” Does Not Constitute a Project Under CEQA

The First District Court of Appeal held that a failure to act to preserve an historic property is not a
“project” under CEQA. (The Lake Norconian Club Foundation v. Department of Corrections and Rehabilitation (2019) 39 Cal.App.5th 1044.)

The Lake Norconian Club opened in 1929 as a “luxury resort catering to Hollywood stars and sports celebrities.” Since then, the building has operated as a military hospital, a drug rehabilitation facility, and administrative offices. The building, which sits adjacent to a state prison, has been vacant since 2002.

In 2012, the Legislature enacted SB 1022, which required the Department of Corrections and Rehabilitation to close the adjacent prison. The Department published a draft EIR for the closure of the prison, which included analysis of potential impacts on the former hotel as a result of the closure. The EIR concluded there was no funding for repair or rehabilitation of the building, and continued deterioration was expected. The Legislature subsequently rescinded closure of the prison. The Department certified a final EIR in 2013, which concluded that although the prison would not be closed, the Department would not be able to repair or maintain the former hotel.

The Lake Norconian Club Foundation filed a petition for writ of mandate in November 2014, alleging the Department abused its discretion by failing to act to protect the hotel. The Foundation alleged that the “department’s de facto issuance of ongoing demolition permits is a precommitment to a CEQA project that cannot lawfully be considered for approval or implementation without first preparing and certifying an EIR to consider impacts and alternatives.”

The trial court concluded that the Department’s failure to seek or allocate funding to preserve the hotel was a project within the meaning of CEQA, but rejected the Foundation’s assertion that the failure to engage in routine maintenance or mere inaction was a project. Regardless, the trial court held that the petition was untimely because the statute of limitations began to run when the Department certified the EIR for the closure of the prison complex in 2013.

The Court of Appeal upheld the trial court’s denial of the petition, but on different grounds. The court concluded that an agency’s failure to act is not itself an activity subject to CEQA, even if there are potential environmental consequences of the inaction. The continuing failure to make repairs, the court said, is not an activity under CEQA. The court noted several difficulties with determining when the statute of limitations would begin to run on an agency’s inaction. The court relied on similar circumstances arising in NEPA case law and explained that federal courts have repeatedly rejected similar arguments.

Finally, the court explained that it need not decide whether the analysis would be different where there is a mandatory duty on the part of the agency to act, because here, the Department had no such mandatory duty. For sure, the court said, absent a statutory duty, the Department’s failure to act cannot be deemed a project or challenged for noncompliance with CEQA.