91 Cal.App.5th 517
Cal. Ct. App.2023Background
- Project: redevelopment of an eight-acre downtown San Jose parcel (City View Plaza) to three 19‑story office towers, requiring demolition of nine existing buildings including the 1971 Bank of California (designed by César Pelli).
- Historic status: City identified City View Plaza and four individual buildings (including the Bank) as candidate city landmarks; Bank also eligible for California and National Registers. One preservation alternative (Alternative 6) would have preserved the Bank but materially reduced project office space.
- CEQA review: City prepared a draft SEIR tiered from Downtown Strategy 2040 EIR, identified demolition of the historic buildings as a significant unavoidable impact, and proposed mitigation MM CUL‑1.1 (documentation, salvage/relocation outreach, commemoration/interpretation).
- Public comments (including PAC*SJ and preservation organizations) urged stronger mitigation including compensatory mitigation (e.g., preservation funds, expanded surveys, offsite mitigation) and argued Alternative 6 was feasible.
- Administrative outcome & litigation: City certified the Final SEIR, rejected landmark designation, approved the project, and adopted a statement of overriding considerations. PAC*SJ filed a writ petition challenging inadequacy of mitigation and responses to comments; trial court denied the petition. The Bank was demolished after the trial court judgment. This appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of Final SEIR re: compensatory mitigation for loss of historic resources | PAC*SJ: EIR failed to identify, analyze, or impose compensatory mitigation (e.g., preservation funds, surveys) to offset irretrievable loss of unique historic resources. | City: Compensatory mitigation was considered and rejected; measures proposed lacked proportionality and nexus and were infeasible or beyond project scope. | Court: Affirmed. Compensatory mitigation need not be imposed absent evidence it could substantially lessen the specific impact; here record showed the plaza’s resources were unique and no comparable substitutes existed, so City did not abuse discretion. |
| Adequacy of agency response to public comments on compensatory mitigation | PAC*SJ: City’s Final SEIR response to Comment G was conclusory and lacked the detailed, reasoned analysis required by Guidelines §15088(c). | City: Responses adequate; PAC*SJ failed to exhaust administrative remedies on the sufficiency-of-response issue. | Court: PAC*SJ exhausted the issue via written comments; the City’s response, read with the draft SEIR, provided a sufficient reasoned analysis explaining lack of nexus/proportionality. |
| Administrative exhaustion | PAC*SJ: N/A (argued it preserved mitigation objections in administrative comments). | City: PAC*SJ failed to preserve/raise the specific response‑adequacy argument during admin process, so claim is barred. | Court: PAC*SJ’s draft‑SEIR comments fairly apprised the City of the mitigation objections; exhaustion satisfied. |
| Standard of review for adequacy of mitigation discussion | PAC*SJ: Adequacy of mitigation discussion is reviewed de novo under Sierra Club and Vineyard. | City: Argued factual infeasibility findings warrant substantial‑evidence review. | Court: Applied de novo review to the sufficiency of the mitigation discussion (mixed question); factual findings about uniqueness of resources are accorded deference. |
Key Cases Cited
- Sierra Club v. County of Fresno, 6 Cal.5th 502 (Cal. 2018) (discusses de novo review for adequacy of EIR discussion and when substantial‑evidence review applies)
- Vineyard Area Citizens for Responsible Growth v. City of Rancho Cordova, 40 Cal.4th 412 (Cal. 2007) (differentiates procedural de novo review from deference to factual findings)
- Citizens of Goleta Valley v. Board of Supervisors, 52 Cal.3d 553 (Cal. 1990) (mitigation and alternatives are the core of an EIR)
- Laurel Heights Improvement Assn. v. Regents of University of California, 47 Cal.3d 376 (Cal. 1988) (EIR must meaningfully discuss mitigation and alternatives)
- Mountain Lion Foundation v. Fish & Game Com., 16 Cal.4th 105 (Cal. 1997) (CEQA substantive mandate: refrain from approving projects when feasible mitigation or alternatives exist)
- Protecting Our Water & Environmental Resources v. County of Stanislaus, 10 Cal.5th 479 (Cal. 2020) (appellate review focuses on agency action, not trial court)
- Save the Hill Group v. City of Livermore, 76 Cal.App.5th 1092 (Cal. Ct. App. 2022) (upheld offsite compensatory mitigation for habitat loss)
- Preserve Wild Santee v. City of Santee, 210 Cal.App.4th 260 (Cal. Ct. App. 2012) (approved offsite habitat acquisition as mitigation)
- Masonite Corp. v. County of Mendocino, 218 Cal.App.4th 230 (Cal. Ct. App. 2013) (EIR should consider agricultural conservation easements as offsite mitigation)
- Gilroy Citizens for Responsible Planning v. City of Gilroy, 140 Cal.App.4th 911 (Cal. Ct. App. 2006) (agencies need not analyze every imaginable mitigation; response‑to‑comment standards)
- Make UC a Good Neighbor v. Regents of University of California, 88 Cal.App.5th 656 (Cal. Ct. App. 2023) (historical structures are rarely fungible; uniqueness limits substitutability)