The Sixth District Court of Appeal denied a CEQA petition in the case Willow Glen Trestle Conservancy v. City of San Jose (2020) 49 Cal.App.5th 127 (rehearing denied June 9, 2020). The controversy in this case began when the City of San Jose approved demolition of the Willow Glen Railroad Trestle via a mitigated negative declaration in 2014. At that time, the bridge was not listed as an historic resource, and the City concluded that substantial evidence supported its determination that the bridge was not an historic resource for the purposes of CEQA. Project opponents challenged this determination, but the Sixth District rejected the challenge in the published case Friends of Willow Glen Trestle v. City of San Jose (2016) 2 Cal.App.5th 457. In 2017, the California State Historical Resources Commission approved listing the bridge in the California Register of Historical Resources. The Commission denied the City’s request to reconsider their decision.

In 2018, the City re-applied to the California Department of Fish and Wildlife for a streambed alteration agreement (sometimes also referred to as a section 1600 or section 1602 permit). CDFW had originally issued the SAA in 2014, but the City allowed the SAA to expire in 2017. CDFW signed the second SAA in October 2018, citing the mitigation measures specified in the 2014 MND and original SAA. The project opponents subsequently filed another CEQA challenge and sought an injunction to prevent immediate demolition of the bridge, which the trial court temporarily granted. However, the trial court ultimately concluded that the second SAA did not involve any new discretionary approval by the City requiring additional CEQA review. The petitioners filed an appeal and sought a writ of supersedeas, which the Sixth District granted in order to avoid mooting the appeal.

On appeal, petitioners argued that requesting an SAA and accepting the terms of an SAA was a discretionary approval of the project opening up the project to supplemental environmental review. The Court quickly rejected this argument, pointing out that petitioners conflated “project approval” with “any action in connection with a project.” Applying for an SAA to implement an already approved project is a post-approval action, not a new project approval opening up the project to supplemental or subsequent environmental review. Thus, the Court found “no substance” to petitioner’s claims.

This case highlights an important practice tip regarding land use entitlements: don’t let entitlements, such as streambed alteration agreements or other ancillary permits, expire. It’s usually much easier to extend existing permits than to re-apply for a permit that has already expired. In this case, that may have potentially avoided opening up the City’s project to more litigation, which caused an addition two years of delay.

The author is also somewhat surprised that the Sixth District granted a writ of supersedeas in this case. While the potential risk of harm (demolition of the bridge) may have been high, the brief opinion denying the petition suggests that petitioner’s arguments had little chance of success on the merits. In addition, similar arguments made by the same petitioner’s counsel have been struck down in other published cases. The cost of litigation (twice), appeals (twice), and injunctions likely added substantial costs (five to six figures) to the City’s public improvement project. In addition, the author doubts that the Willow Glen Trestle Conservancy would pay to maintain the bridge as an historic resource in the long run. By the way, whatever happened to the Friends of the Willow Glen Trestle from the 2016 case? It seems they didn’t stick around long. Some friends they were.