Tag: Substantial Evidence

City’s Decision to Deny Mitigated Negative Declaration Upheld For Small San Diego Subdivision

On May 23, 2017, the Fourth District Court of Appeal court ordered published Kutzke v. City of San Diego (2017) 11 Cal.App.5th 1034. In a succinct opinion, the court upheld the city’s decision to deny a mitigated negative declaration (MND), initially approved by the planning commission, regarding an application to subdivide two hillside lots and build three residences.

The court emphasized that the standard of review was deferential to the city, and limited to determining whether the city’s findings were supported by substantial evidence. The court interpreted this standard by stating that plaintiff could only prevail if she could demonstrate that no reasonable municipality could have reached the same decision as the city.

Under this standard of review, the court determined that the city presented substantial evidence in the record to support its finding that impacts to land use, geology, and public safety would be detrimental and inadequately mitigated. Flaws and omissions in the project’s geotechnical report cast doubt on the report’s conclusion that homes could be built safely on the steep sandstone hillside. Furthermore, the slope of the shared driveway would not permit access by firetrucks and potentially other emergency response vehicles. Proposed mitigation measures (sprinkler systems and standpipes) were inadequate to mitigate all of these risks.

Regarding the project’s consistency with the community plan, the city properly considered the opinions of neighbors, who stated that the project’s dense development with minimal setbacks was incompatible with the large lot, single-family residential character of the area. Finally, the project was properly rejected under city ordinances, which provide for deviations from the development regulations for qualified sustainable building projects, if the deviations result in a more desirable project. For similar reasons as to why the project was rejected under the community plan and CEQA, the deviations requested here (smaller setbacks, no frontage, and higher walls) would not make the project more desirable.

Sixth District Holds Fair Argument Standard No Longer Applies to Whether a Resource is “Historical”

In Friends of the Willow Glen Trestle v. City of San Jose (2016) 2 Cal.App.5th 457, the Sixth District Court of Appeal held that the fair argument standard does not apply to a lead agency’s decision that a resource is not a historical resource—abandoning its previous holding to the contrary in Architectural Heritage Assn v. County of Monterey (2004) 122 Cal.App.4th 1095.

The resource at issue—a wooden railroad bridge, referred to as the Trestle—was built in 1922 as part of a spur line to provide rail freight access to canning districts near downtown San Jose. It was not listed or eligible for listing in the California Register of Historical Resources, nor was it included in a local register of historical resources. As part of its trail system, the City of San Jose proposed to demolish the Trestle and replace it with a new steel truss pedestrian bridge. The city adopted a mitigated negative declaration based on an initial study that concluded the Trestle was not a historical resource. Project opponents filed a writ petition asserting that there was substantial evidence to support a fair argument that the Trestle was a historical resource and therefore an EIR was required. Applying the fair argument standard, the trial court found in favor of petitioners.

The Sixth District disagreed. In rejecting the fair argument standard employed by the trial court, the court focused on the statutory language of Public Resources Code section 21084.1, which defines historical resources for purposes of CEQA. It provides, in part, that a resource may be presumed historical, if it meets certain criteria, unless a preponderance of the evidence demonstrates that it is not historical. Where a resource is not presumptively historical, an agency has the discretion to decide whether it is or is not historical. The court stated that by allowing an agency to overcome a presumption with a preponderance of the evidence, the standard of review logically must be whether substantial evidence supports the lead agency’s decision, not whether a fair argument can be made to the contrary. Based on this determination, the court found that the Legislature could not have intended that a lead agency’s discretionary decision to identify a resource as historical would be subject to a less-deferential review—i.e., fair argument—than a decision regarding a resource presumed to be historical.