Filed 6/9/20 (unmodified opinion attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
WILLOW GLEN TRESTLE H047068
CONSERVANCY et al., (Santa Clara County
Super. Ct. No. CV335801)
Plaintiffs and Appellants,
ORDER MODIFYING OPINION
v. AND DENYING REHEARING
CITY OF SAN JOSE et al., [NO CHANGE IN JUDGMENT]
Defendants and Respondents.
THE COURT:
It is ordered that the opinion filed herein on May 18, 2020, be modified as follows:
1. On page 5, first full paragraph, replace the fourth sentence which begins with “And, as
the,” with the following sentence: “And, as the Conservancy concedes, CDFW’s
environmental review in connection with the SAA in this case was limited to fish and
wildlife resources.”
This modification does not affect the judgment.
The petition for rehearing is denied.
Dated: _______________________________
Mihara, J.
_______________________________
Premo, Acting P. J.
_______________________________
Elia, J.
Willow Glen Trestle Conservancy v. City of San Jose
H047068
2
Trial Court: Santa Clara County Superior Court
Trial Judge: Honorable Thomas E. Kuhnle
Attorney for Plaintiffs and Appellants: Susan Brandt-Hawley
Brandt-Hawley Law Group
Attorneys for Defendants and Respondents: Office of the City Attorney
Richard Doyle
City Attorney
Nora Frimann
Assistant City Attorney
Margo Laskowska
Senior Deputy City Attorney
Elisa Tolentino
Senior Deputy City Attorney
Kathryn J. Zoglin
Senior Deputy City Attorney
Willow Glen Trestle Conservancy v. City of San Jose
H047068
3
Filed 5/18/20 (unmodified opinion)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
WILLOW GLEN TRESTLE H047068
CONSERVANCY et al., (Santa Clara County
Super. Ct. No. CV335801)
Plaintiffs and Appellants,
v.
CITY OF SAN JOSE et al.,
Defendants and Respondents.
Appellants Willow Glen Trestle Conservancy and Friends of the Willow Glen
Trestle (collectively the Conservancy) challenge the trial court’s denial of their mandate
petition. In 2014, respondent City of San Jose (the City) approved a project that included
the demolition of the Willow Glen Railroad Trestle (the project). The environmental
document for that approval was a mitigated negative declaration (MND). The
Conservancy’s 2018 petition alleged that the City violated the California Environmental
Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) in 2018 by failing to
provide supplemental environmental review of the project before the City sought and
obtained a new Streambed Alteration Agreement (SAA) from the California Department
of Fish and Wildlife (CDFW) after the City’s prior SAA for the project expired. The
superior court found that the City was not obligated to provide supplemental
environmental review because the City’s action in seeking and obtaining a new SAA was
not a “new discretionary approval for the project” under California Code of Regulations,
1
title 14, section 15162 (CEQA Guidelines section 15162). We agree with the superior
court and affirm its order.
I. Background
We traced the history of this project in our opinion in Trestle I, supra, 2
Cal.App.5th 457. The Willow Glen Railroad Trestle (the Trestle) is a wooden railroad
bridge built in 1922. The City acquired ownership of the Trestle in 2011. In 2013, the
City proposed a project to demolish the Trestle and replace it with a new steel truss
pedestrian bridge that would serve as a link in the City’s Three Creeks Trail system. (Id.
at p. 461.) The City approved the project, adopted a mitigated negative declaration
(MND), and found that the Trestle was not a historical resource. (Id. at pp. 461-462.)
Litigation ensued concerning whether the City should have considered the Trestle
to be a historical resource. At that time, the Trestle was not listed in the California
Register of Historical Resources. Had it been so listed, the City would have been
statutorily mandated to consider the Trestle an historical resource. (Trestle I, supra, 2
Cal.App.5th at p. 466; Pub. Resources Code, § 21084.1.) The City ultimately prevailed
in that litigation.
In May 2017, the California State Historical Resources Commission approved the
listing of the Trestle in the California Register of Historical Resources, and the Trestle
was so listed. In October 2017, the Commission denied the City’s request for
redetermination of that decision.
In March 2018, the City submitted to CDFW a “Notification of Lake or Streambed
Alteration” in connection with the project. The City had submitted such a notification in
1
Chapter 3 of division 6 of this title is known as the CEQA Guidelines. The CEQA
Guidelines are given “ ‘great weight’ ” in interpreting CEQA. (Friends of Willow Glen
Trestle v. City of San Jose (2016) 2 Cal.App.5th 457, 460, fn. 2 (Trestle I).)
2
2014 and been issued an SAA by CDFW at that time, but the 2014 SAA had expired at
2
the end of 2017. In April 2018, CDFW notified the City that the City’s “Notification”
was incomplete. In July 2018, the City submitted to CDFW a “proposed Temporary
Creek Access and Diversion Plan” for the project. The purpose of this plan was to divert
Los Gatos Creek during the Trestle demolition and bridge construction activities.
In August 2018, CDFW sent a draft SAA to the City and proposed revisions to the
City’s diversion plan. The City agreed to CDFW’s proposals and signed the final SAA in
August 2018; CDFW signed the final SAA in October 2018. CDFW found that the
project would not have any significant impacts on fish or wildlife “with the measures
specified in the 2014 MND and the [SAA].” The final SAA permitted CDFW to amend
it “at any time during its term if CDFW determines the amendment is necessary to protect
an existing fish or wildlife resource.”
The Conservancy sought judicial intervention to forestall the City’s plan to
immediately proceed with demolition of the Trestle. The superior court temporarily
enjoined the City from proceeding, but it ultimately denied the Conservancy’s petition.
The court found that the City’s actions in connection with obtaining the 2018 SAA were
not a discretionary approval for the project that required supplemental environmental
review. The court reasoned that the City’s approval of the MND in 2014 included
approval of the SAA and that the acts by the City involved in obtaining the new SAA did
not involve any “new discretionary approval” by the City. The Conservancy timely filed
a notice of appeal from the court’s order and sought a writ of supersedeas from this court
to forestall the destruction of the Trestle pending resolution of this appeal. We granted
writ relief to avoid demolition of the Trestle mooting this appeal.
2
An SAA has a maximum term of five years and may be extended only once and
not for more than five years. (Fish & G. Code, § 1605, subd. (a).)
3
II. Discussion
The Conservancy’s petition alleged that the City violated CEQA by “entering into
the discretionary [SAA] that is the final discretionary approval required prior to moving
forward with the demolition of [the Trestle].” It argued that supplemental environmental
review was required under Public Resources Code section 21166 before the City could
accept the SAA.
Public Resources Code section 21166 provides: “[N]o subsequent or
supplemental environmental impact report shall be required by the lead agency or by any
responsible agency, unless one or more of the following events occurs: [¶] . . . [¶]
(b) Substantial changes occur with respect to the circumstances under which the project
is being undertaken which will require major revisions in the environmental impact
report. [¶] (c) New information, which was not known and could not have been known
at the time the environmental impact report was certified as complete, becomes
available.” (Pub. Resources Code, § 21166.) This statute does not itself extend to a
project, such as this one, for which the supporting environmental document was an MND,
rather than an environmental impact report (EIR). (Friends of College of San Mateo
Gardens v. San Mateo County Community College Dist. (2016) 1 Cal.5th 937, 945 (San
Mateo Gardens).
CEQA Guidelines section 15162 extends Public Resources Code section 21166’s
framework to the situation where the environmental document for the project is an MND,
rather than an EIR. (San Mateo Gardens, supra, 1 Cal.5th at p. 956.) “Once a project
has been approved, the lead agency’s role in project approval is completed, unless further
discretionary approval on that project is required. Information appearing after an
approval does not require reopening of that approval. If after the project is approved,
any of the conditions described in subdivision (a) [(which mirror the circumstances set
forth in Public Resources Code section 21166)] occurs, a subsequent EIR or negative
declaration shall only be prepared by the public agency which grants the next
4
discretionary approval for the project, if any. In this situation no other responsible
agency shall grant an approval for the project until the subsequent EIR has been certified
or subsequent negative declaration adopted.” (CEQA Guidelines, § 15162(c), italics
added.)
CEQA Guidelines section 15162(c) applies only when, after the original approval
of a project, a “further discretionary approval on that project” is required. The
Conservancy argues that the City’s submission of a notification to CDFW in order to
obtain a new SAA after the prior SAA expired and acceptance of the new SAA amounted
to an “approval on that project” by the City. While it is true that CDFW’s issuance of the
3
final SAA was an “approval,” that action was not an approval by the City. And, as the
Conservancy concedes, CDFW could not consider whether the Trestle was an historical
resource because CDFW’s environmental review was limited to fish and wildlife
resources. (Fish & G. Code, §§ 1602, 1603.) The Conservancy’s argument depends on
its characterization of the City’s actions in seeking and obtaining the SAA as an
“approval.”
An SAA was required for the project because the City was barred from diverting
or obstructing Los Gatos Creek without complying with Fish and Game Code sections
1602 and 1603. (Fish & G. Code, § 1602, subd. (a).) The first requirement was that a
detailed “notification” be sent by the City to CDFW. The second requirement fell on
CDFW: it had to ensure that the City’s notification was complete and then determine
whether the project may adversely affect a fish or wildlife resource. The third
requirement also burdened CDFW. If the activity might adversely affect a fish or
wildlife resource, CDFW was required to provide a draft SAA to the City that described
the impacted resource and included “reasonable measures necessary to protect the
3
It is undisputed in this case that “CDFW’s authority over the Project as a CEQA
responsible agency [was] limited to issuance of a streambed alteration agreement.”
5
resource.” (Fish & G. Code, §§ 1602, subd. (a), 1603.) The fourth requirement involved
the City. The City could either accept the draft SAA or notify CDFW of any
unacceptable measures. The final step was the resolution of any disagreements about
these measures by means of a statutorily prescribed process that could involve the
submission of disputes to arbitration. (Fish & G. Code, §§ 1602, 1603.)
The Conservancy claims that the City’s act of seeking and accepting the SAA was
a “discretionary approval on [the] project” under CEQA Guidelines section 15162(c) that
justified supplemental environmental review. This claim cannot withstand scrutiny
because it attempts to equate any action in connection with a project with an “approval
4
on” or an “approval for” the project. (Italics added.) If every action had to be
considered an “approval,” each and every step that the City took toward implementing an
approved project would necessarily constitute another “approval on” the project, thereby
endlessly reopening the City’s long-final consideration of the project’s environmental
impacts. Yet CEQA Guidelines section 15162 explicitly provides that “[i]nformation
appearing after an approval does not require reopening of that approval.” “Once a project
has been subject to environmental review and received approval, section 21166 and
CEQA Guidelines section 15162 limit the circumstances under which a subsequent or
supplemental EIR must be prepared. These limitations are designed to balance CEQA’s
central purpose of promoting consideration of the environmental consequences of public
decisions with interests in finality and efficiency.” (San Mateo Gardens, supra, 1 Cal.5th
at p. 949, italics added.) “In this context, ‘the interests of finality are favored over the
policy of encouraging public comment.’ [Citation.]” (Chaparral Greens v. City of Chula
4
The Conservancy attaches significance to CEQA Guidelines section 15162(c)’s
use of the word “on” rather than “of.” We see no significance. CEQA Guidelines section
15162(c) uses the term “for” interchangeably with “on,” and we see no justification for
assuming that a different meaning was intended to attach to an approval “for” a project as
opposed to an approval “of” a project.
6
Vista (1996) 50 Cal.App.4th 1134, 1150-1151.) The City’s post-approval actions
implementing the project did not constitute an “approval” within the meaning of CEQA
Guidelines section 15162(c).
The Conservancy maintains that different rules should apply to “a city’s own
project” than would apply to a “private project” because “[a]n agency always retains
authority to change course in implementing its own project.” In the Conservancy’s view,
because the City “retain[ed] discretion to reconsider or alter” the project, the City’s
failure to abandon the project was itself a new “discretionary approval for the project.”
While an agency may retain the discretion to abandon its own project, nothing in Public
Resources Code section 21166 or CEQA Guidelines section 15162 suggests that an
agency’s post-approval choice not to abandon its project itself constitutes an “approval
for the project” that justifies further environmental review. The purpose of CEQA
Guidelines section 15162 is to limit subsequent environmental review after finality of the
original environmental review, and the language of that section makes no distinction
between public and private projects. We reject the Conservancy’s attempt to expand the
reach of CEQA Guidelines section 15162 in contravention of that section’s purpose.
Now that we have laid these contentions to rest, it can be clearly seen that there is
no substance to the Conservancy’s claim that “[t]he SAA is a ‘further discretionary
approval’ made by the city as the lead agency for the [project] . . . .” The City’s actions
in connection with the SAA simply cannot be construed as an “approval for the project.”
The City’s 2018 application for an SAA (the “notification”) was not an “approval for the
project” because this notification was not an “approval.” The 2013 MND provided:
“The City will apply for a Streambed Alteration Agreement from CDFW and will be
responsible for the implementation of all its conditions.” When the City submitted a new
notification to CDFW in 2018 due to the expiration of the prior SAA, it was simply
implementing the project that it had already approved in 2014. The same is true as to the
City’s acceptance of the SAA, which was not an “approval” for the project but simply
7
another step in the implementation of the already approved project. The only new
“approval” was CDFW’s, and the Conservancy does not challenge CDFW’s decision to
approve the SAA.
As there was no further approval of the project in 2018, CEQA Guidelines section
15162(c) did not require supplemental environmental review. Consequently, the superior
court did not err in denying the Conservancy’s petition.
III. Disposition
The superior court’s order is affirmed. The writ of supersedeas shall dissolve
upon the finality of this opinion.
8
_______________________________
Mihara, J.
WE CONCUR:
_____________________________
Premo, Acting P. J.
_____________________________
Elia, J.
Willow Glen Trestle Conservancy v. City of San Jose
H047068
9
Trial Court: Santa Clara County Superior Court
Trial Judge: Honorable Thomas E. Kuhnle
Attorney for Plaintiffs and Appellants: Susan Brandt-Hawley
Brandt-Hawley Law Group
Attorneys for Defendants and Respondents: Office of the City Attorney
Richard Doyle
City Attorney
Nora Frimann
Assistant City Attorney
Margo Laskowska
Senior Deputy City Attorney
Elisa Tolentino
Senior Deputy City Attorney
Kathryn J. Zoglin
Senior Deputy City Attorney
Willow Glen Trestle Conservancy v. City of San Jose
H047068
10