The California Sixth District Court of Appeal recently considered the case of Preservation Action Council of San Jose v. City of San Jose.  There, the Preservation Action Council of San Jose (“PACSJ”) filed a petition challenging the City of San Jose’s certification of a final Supplemental Environmental Impact Report (“SEIR”) for the City View Plaza Office Project. The discussion of mitigation contained in the environmental impact report (“EIR”), and whether the mitigation imposed on the project satisfied the demands of the California Environmental Quality Act (“CEQA”) was the primary issue on appeal.

The project involved the demolition of an existing building and construction of three high-rise office towers in downtown San Jose, including a bank.  The PACSJ argued that the final SEIR was inadequate because it failed to analyze and impose compensatory mitigation for the project’s significant impacts on historic buildings located in downtown San Jose, and failed to respond adequately to PACSJ’s comments requesting additional compensatory mitigation under CEQA.  The SEIR included mitigation measures to lessen the impact of removing the historic buildings, including documenting the structures in accordance with established guidelines, advertise the availability of the structures for relocation, to otherwise make the structures available for salvage, and to employ measures (using physical remnants, oral histories, photographs, displays, and an historic marker) for commemoration of the structures and the Park Center Plaza “as a whole.” 

The draft SEIR also evaluated 11 alternatives to the project, including six historic preservation alternatives.  The City of San Jose responded to the comments and even made minor revisions to the text of the SEIR, but rejected not only PACSJ’s arguments, but also its demand that the City add additional mitigation measures, including “an extremely robust Historic Resources Mitigation Action Plan” for the rest of the downtown area.  The court ultimately ruled that the PACSJ failed to show that general measures to promote historic preservation in the downtown area does not serve as compensatory mitigation for the loss of specific and unique architectural and historic resources for mitigation under CEQA. The Court approvingly cited the EIR, which stated: “Requiring any one project to support Citywide or downtown survey efforts is not, however, proportional and there is no nexus for the City to require it.  Furthermore, the City cannot require a project to provide financial contributions to support preservation of other buildings within the City.”

This case is distinguishable from other CEQA mitigation cases, in that the Court recognized that the loss of a unique, non-transferable element of the built environment cannot be replaced with general measures to promote historic preservation elsewhere. Typically, under CEQA, compensatory mitigation involves a significant impact to habitat, endangered species, or farmland which is then mitigated by providing substantially similar resources as a substitute. However, where the EIR and the adopted CEQA findings are clear that a unique resource is impacted, there are no other comparable examples in the area, and the requested mitigation does not meet the twin Constitutional demands of proportionality and nexus, additional mitigation cannot be required.

The case in its entirety can be read HERE.