A developer proposing to replace two century-old houses in Fresno with 28 new two-story townhouses lost its appeal of a CEQA writ of mandate but won significant points from the Fifth District Court of Appeal in Citizens for the Restoration of L Street v. City of Fresno.

The August 29 ruling upheld the trial court's finding that the city failed to comply with CEQA in granting approvals for the houses to be demolished and the project built. But it nevertheless found the trial court properly applied the "substantial evidence" test in declining to second-guess the city's determination that the houses were not so historic as to qualify for an EIR review of their proposed demolition.

The plaintiff citizens' group had opposed the project, seeking to have the houses preserved both for their own sake and as part of a larger proposed historic district. One house had been designated a "Heritage Property" but the court's narrative said both were "in disrepair."

Fresno's Historic Preservation Commission issued approvals to demolish both houses; the City Council endorsed its action.

A month after the last city action in late 2011, the plaintiff group's writ petition was filed -- and within that same week, both houses were demolished.

The court refused to consider the question moot, allowing the parties to continue disputing whether the Preservation Commission had acted with proper authority and whether it properly determined the houses lacked "historical resource" status.

The trial court granted the plaintiffs' writ petition based on city officials' procedural errors. However, it held that the Preservation Commission properly held the houses were not sufficiently historic.

In August the Fifth District upheld both of the trial court's actions.

Writing for a unanimous three-judge panel of the Fifth District Court of Appeal, Justice Donald Franson, Jr., joined by Justices Dennis Cornell and Jennifer Detjen, held that Fresno, and local lead agencies in general, do have power "to delegate authority to approve a mitigated negative declaration and a project to a nonelected decisionmaking body" such as the Preservation Commission. However, it found that in this case Fresno, by its 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," hence that the resulting approvals did not comply with CEQA.

Further, Franson's opinion found deficiencies in the "Notice of Intent to Adopt a Mitigated Negative Declaration".

Although the City Council endorsed the Preservation Commission's actions in a separate vote, Franson found the Council's action did not cure defects in the initial process. He found the Council did not genuinely review the matter using its own independent judgment under CEQA-compliant procedures, and it approved only the mitigated negative declaration rather than the demolition permit or the proposed project itself.

Although the houses were long gone, Franson wrote that the matter was still not moot because it was still possible to grant a form of relief: if the court saw fit to do so, it could still require the City to prepare an EIR for the project replacing the houses.

However, the court found there was no need for an EIR because whether or not the plaintiff presented a "fair argument" for the properties' "historical resource" status, the necessary standard for the court to apply in evaluating the "historical resource" determination was one of "substantial evidence", as previously held in Valley Advocates v. City of Fresno (2008) 160 Cal.App.4th 1039. So although the court did uphold the writ based on the city's procedural errors, it did not reject the city's decision to deny "historical resource" status to the buildings.

The case is http://www.courts.ca.gov/opinions/documents/F066498.PDF. The Stoel Rives firm, which represented the city and the developer in the case, has its own detailed writeup at http://bit.ly/1qKrgzD. Art Coon of Miller Starr Regalia has an analysis at http://bit.ly/1p5u6vb.