[co-author: Sarah Nagle]

The Second District of the Court of Appeal on June 8 ordered publication of its May 12 opinion affirming the denial of a writ of mandate that challenged the City of Buenaventura’s removal and relocation of a statue of Junipero Serra. Petitioner, the Coalition for Historical Integrity, alleged that removing the statue required CEQA review because it was a historical resource. The Court of Appeal upheld the City’s finding that the statue was not a historical resource and exempt from CEQA under the “common sense” exemption.

Background

In 1936, a concrete statue of Serra was erected in front of what is now San Buenaventura City Hall; the City later adopted a resolution declaring the statue to be a historic landmark. In 1983, however, the statue, which was starting to fall apart, was replaced with a bronze replica. It was then placed on a list of landmarks in the City in 2002. When the City’s General Plan was updated in 2005, the environmental impact report included the statue on a list of landmarks and the General Plan marked the location of the statue as a historical site. In 2007, Historic Resources Group (“HRG”) conducted a survey that affirmed the status of the statue as a landmark.

In 2020, public attitude toward the statue began to shift. Protests and vandalism at the statue resulted in a letter signed by the mayor and other representatives of the community calling for relocation of the statue. The City again hired HRG to conduct an analysis of the statue, however, this time HRG concluded that the bronze statue did not meet the criteria for a historic landmark because it was not at least 40 years old. Based on the report, the City’s Historic Preservation Committee voted that the replica statue was not eligible for landmark status.

The city council adopted this finding and also determined that relocating the statue was exempt from CEQA under the common sense exemption. The common sense exemption applies when there is no possibility that the activity in question may have a significant effect on the environment. In July 2020 the Coalition for Historical Integrity (“Coalition”) petitioned the trial court for a writ of mandate and injunctive relief, which the trial court denied.

The Issues

The Coalition first alleged that removal of the bronze replacement statue was an action that requires review under CEQA. Petitioner argued that the statue qualifies as presumptively historical and therefore falls under the definition of “environment” under CEQA, which includes “objects of historic or aesthetic significance.” (Pub. Resources Code, § 21060.5.) CEQA includes a statutory presumption that historical resources listed in a local register are presumptively historically or culturally significant. But this presumption is rebuttable by a preponderance of the evidence.

The court found that despite the presumption, the City’s determination that the statue was not historically significant should be upheld because the City’s finding was supported by substantial evidence. In determining that the 2020 HRG report was substantial evidence, the court noted that municipal agencies can properly consider and base decisions on evidence that would not be admissible in court. Reliance on the report was therefore acceptable despite its lack of participant testimony or evidence that the author of the report was qualified as an expert. The court also found that it was within the City’s discretion to begin treating the original and replacement statues as separate entities, even though the City had originally treated both the original and replacement statue as one statue subject to historic preservation. The HRG report could therefore reasonably find that the replacement statue, which was less than 40 years old, was never historically significant. Because the replacement statue had no historical significance, the City properly applied the common sense exemption.

The Coalition also attempted additional arguments that all failed. First, the court rejected the Coalition’s argument that the statue’s removal violated the City’s Specific Plan. The Specific Plan, which provides for the preservation of historical resources, also allows for the demolition of a historical resource, so no violation occurred. The Specific Plan likewise does not prohibit the removal of a statue subsequently found to have been erroneously classified as having historical value. The court next held that the City did not violate its Municipal Code. Because the City found that the bronze replacement statue was never a landmark, the code provisions for removing landmarks did not apply. Lastly, the court considered the challenge to the statue’s removal on the basis of bias. The Coalition argued that the City acted in a quasi-judicial capacity, where review must be unbiased. In determining that the City acted in a quasi-legislative manner, the court held that the City’s decision to remove the statue was within its purview. The City’s removal of the statue, based on a finding that that the statue was offensive to members of the community, was a policy decision and not subject to the constraints of judicial review.

Conclusion

This case presented a unique situation where a city regarded a replica of an earlier historic landmark as a historic landmark itself, but later pivoted its position. The decision demonstrates that courts will uphold such changes in historical designation if they are supported by substantial evidence.

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