Court of Appeals of California, Sixth District, No. H033275, October 27, 2010: Issuance of a permit under Palo Alto Ordinance to demolish a historic landmark residence does not trigger California Environmental Quality Act review because it is a ministerial, not discretionary, act under the CEQA Guidelines, the California Sixth District Appeals Court held. This is an unpublished decision.
The house in question, the Juana Briones House, was designated an historic landmark by the City. Damage due to a subsequent earthquake caused the owners to abandon renovation plans and seek a demolition permit, which the City granted. The Friends of the Juana Briones House appealed, arguing that issuance of the permit should require prior review under CEQA (CA Public Resources Code, section 21000 et seq).
The Court of Appeals, citing CEQA, regulations under CEQA called Guidelines (title 14 of the California Code of Regulations, section 15000 et seq; “Guidelines”), and prior case law, said CEQA would apply if the governmental act in question were discretionary but not if it were ministerial. The Court looked to the guidelines for definition of these terms. The court quoted Guidelines §§ 15357, 15369: “`Ministerial’ describes a governmental decision involving little or no personal judgment by the public official as to the wisdom or manner of carrying out the project. The public official merely applies the law to the facts as presented but uses no special discretion or judgment in reaching a decision. A ministerial decision involves only the use of fixed standards or objective measurements, and the public official cannot use personal, subjective judgment in deciding whether or how the project should be carried out.” The Guidelines (§ 15357) defines “discretionary” projects as those requiring “the exercise of judgment or deliberation when the public agency or body decides to approve or disapprove a particular activity, as distinguished from situations where the public agency or body merely has to determine whether there has been conformity with applicable statutes, ordinances, or regulations.”
Citing a prior case, the Court used a “functional” test and said that only if “the agency has the power to shape the project in ways that are responsive to environmental concerns” it action would be considered discretionary. Prior cases cited by the Court have held that a demolition permits may be ministerial or discretionary.
Turning to the Palo Alto Ordinance, the Court wrote, “The pivotal legal question is whether the authority to delay a project — without more — renders approval discretionary…. We find nothing in the ordinance that requires the board to make a recommendation. The provision states only that any ‘demolition permit application for a single-family or duplex residence shall be referred to the historic resources board for recommendation.’ (PAMC § 16.49.070, subd. (b).)”
The court held, “CEQA does not apply to the demolition permit at issue here, because approval of that permit was a ministerial act. Under the plain language of the governing municipal code provision, the City had no authority to impose permit conditions that would render it discretionary. That conclusion is not altered by the possibility that a building permit will subsequently issue. Finally, there was no actionable procedural violation, either of CEQA or of the governing municipal code provision.”
Decision available at http://www.courtinfo.ca.gov/opinions/nonpub/H033275.PDF