Preview
1 Susan Brandt Hawley/SBN 75907
BRANDT HAWLEY LAW GROUP
2
P.O. Box 1659
3 Glen Ellen, CA 95442
707.938.3900, fax 707.938.3200
4 susanbh@preservationlawyers.com
5
6
Attorney for Petitioners
7
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
FOR THE COUNTY OF SANTA CLARA
Willow Glen Trestle Conservancy, Case No. 18CIV335801
an unincorporated association, and
Friends of the Willow Glen Trestle Petitioner’s Opening Brief
an unincorporated association; on the Merits
Petitioners,
Honorable Thomas E. Kuhnle
City of San Jos City of San Jos
Department of Public Works; Date June 27, 2019
California Department of Fish and Time 9:00 a.m.
Wildlife; and Does 1 to 10; Dept 5
Respondents;
/
Petitioner’s Opening Brief in Support of Petition for Writ of Mandamus
able of Contents
Introduction and Summary of Argument
Statement of Facts
Mitigated Negative Declaration; No Historic Status
Environmental Impact Report; No Historic Status
Historic Status Established
The Streambed Alteration Agreement
Statement of the Case
Standard of Review
Discussion
Statutory and Regulatory Framework
Fair Argument Standard
Supplemental Environmental Review
Historic Status of the Trestle is New Information
C. The SAA is a Further Discretionary Project Approval
Conclusion
Table of Contents
Table of Authorities
Case Law Page
Benton v. Board of Supervisors (1991) 226 Cal.App.3d 137
62 Cal.4th 204
Cucamongans United for Reasonable Expansion v. City of Rancho Cucamonga (2000)
82 Cal.App.4th 473 ,20
riends of the College of San Mateo Gardens v. San Mateo County Community College
District Gardens ) (2016)
1 Cal.5th 937 ,12,14,16
riends of the College of San Mateo Gardens v. San Mateo County Community College
District Gardens ) (2017)
11 Cal.App.5th 596 ,12,16
Friends of the Willow Glen Trestle v. City of San José (2016
2 Cal.App.5th 457 5,6
Moss v. County of Humboldt (2008)
162 Cal.App.4th 1041
Pocket Protectors v. City of Sacramento (2004)
124 Cal.App.4th 903
Sierra Club v. County of Sonoma (1992)
6 Cal.App.4th 1307
Tomlinson v. County of Alameda (2012)
54 Cal.4th 281 ,17
Fish and Game Code Sections
1602
1603
Public Resources Code Sections
(5)
(2)
Proof of Service
Introduction and Summary of Argument
The Willow Glen Trestle Conservancy and Friends of the Willow Glen Trestle
(collectively, the Conservancy) the Court’s peremptory writ to uphold the
protective mandates of CEQA, a citizen enforced statute. Supplemental
environmental review must now inform the San José City Council’s exercise of
discretion in considering the fate of the newly protected historic Willow Glen
Trestle. Conservancy does not ask the Court to decide whether the Three Creeks
Trail Pedestrian Bridge should proceed with a rehabilitated Trestle generic steel
bridge a combination. That decision is the purview of the elected Council.
The unusual facts of this case were intensively briefed and reviewed by the
Court during preliminary injunction proceedings in October 2018 City
approved demolition of the Trestle in 2014, treating as if it had no historic value
he City relied on a mitigated negative declaration that was challenged by the
Friends of the Willow Glen Trestle and set aside this Court The City successfully
appealed to the Sixth District while concurrently preparing environmental impact
report (EIR) as a cautionary step in case its appeal was denied Since the City’s
tive declaration was upheld, it used the 2015 EIR to approve demolition.
In 2017, circumstances materially in the most important way.
he California Historical Resources Commission nally and firmly resolved the
Trestle’ legally disputed historic status. The Commissio listed the Trestle n the
Facts discussed in the Introduction are cited to the record,
Petitioner’s Opening Brief in Support of Petition for Writ of Mandamus
California Register of Historical Resources over the City’s strong objections
Trestle qualified historic resource entitled to protections for any new approvals
subject to CEQA. (Pub. Resources Code, 21084.1.) While the City need not reopen
its 2014 project approval , the Trestle’s newly established historic eminence
trigger supplemental obligations for new discretionary action the City’s
choice to enter into Streambed Alteration Agreement (SAA) with the California
Department of Fish and Wildlife (CDFW) in order to move forward with demolition
The Willow Glen Trestle in 1955
Guidelines provide that “[o]nce a project has been approved, the
lead agency’s role in project approval is completed unless further discretionary
approval on that project is required ” (CEQA Guidelines [14 Cal.Code Regs.]
15162 (c), italics added In light of the new significant environmental effect that
was established when the negative declaration was approved the loss of a
mandatory historic resource supplemental review must now inform “further
discretionary approval of the SAA . at (b), (c), (d Resources Code
§ 21166. Historic status is no longer resolvable judicial deference to the City
Petitioner’s Opening Brief in Support of Petition for Writ of Mandamus
Under the facts, supplemental review in the form of an EIR is required before
the City may take a new discretionary action to demolish the now historic Trestle
under the changed circumstances. The California Supreme Court decision in
riends of the College of San Mateo Gardens v. San Mateo County Community
College District Gardens ) (2016) 1 Cal.5th 937, 957 958 and the remand decision
in riends of the College of San Mateo Gardens v. San Mateo County Community
College District Gardens ) (2017) 11 Cal.App.5th 596 are controlling. ( at 14.)
This Court based its denial of preliminary injunction in October 2018 in
significant part on cceptance of the City’s contention that the SAA s not a “further
discretionary approval on that project would trigger supplemental CEQA
review. (Order Denying Preliminary Injunction at 6.) The Court also asserted that
“the finalization of the SAA did not change the activity to be undertaken.” ( . at 7.)
Conservancy’s briefs focus on these important points both in the pending
injunction motion and on the merits, in the light of the full administrative record
SAA is a new discretionary approval unless set aside by issuance of a
writ will result demolition of the historic, well loved Trestle As that would
cause significant environmental impact as a matter of law (Pub. Resources Code,
§ 21084.1) a negative declaration cannot suffice. ( . at § 21151.) Conservancy
respectfully requests that the ourt issue a peremptory writ ordering that the City and
CDFW set aside the SAA and that before considering another SAA, the City prepare a
supplemental EIR rather than continuing to rely on the 2014 mitigated negative
declaration new EIR may freely reuse all relevant portions of the 2015 EIR.
Petitioner’s Opening Brief in Support of Petition for Writ of Mandamus
The Conservancy has come to agree with the position taken by CDFW that the
City remains the ‘lead’ agency responsible for supplemental CEQA review. The City
broader responsibilities than CDFW, a ‘responsible’ agency solely focused on fish and
wildlife issues. (Pub. Resources Code, §§ 21067, 21069.) The City’s CEQA obligations
encompass protection of all resources in its jurisdiction, including historic sites unique
the Valley of Heart’s Delight. If the SAA was a one way permit CDFW might well
step into the shoes of lead agency since it has final project approval prior to
demolition. But that question resolved here. Since oth agencies exercised
discretion when entering into the SAA lead agency obligations not shift to CDFW.
The Court’s peremptory writ will serve the public interest At last, procedural and
substantive protections of CEQA can be objectively applied to see whether the historic
Willow Glen Trestle may survive to serve as the Three Creeks Trail Pedestrian Bridge
Statement of Facts
Mitigated Negative Declaration No Historic Status ity
approved demolition of the Trestle 2014, after buying a steel replacement bridge
for the Three Creeks Trail Pedestrian Bridge Project before any CEQA process
(AR 691.) Since the Trestle was not listed in any historic register in 2014, the ity
made a finding that it was not historic Over the passionate objections of Willow Glen
residents and archivists, it approved demolition based on a mitigated negative
declaration. That action was ultimately upheld by this Court in case number
14CIV following decision of the Sixth District Court of Appeal in Friends of
Petitioner’s Opening Brief in Support of Petition for Writ of Mandamus
the Willow Glen Trestle v. City of San José (2016) 2 Cal.App.5th 457. While the
undisputed facts between 2014 and 2016 are relevant and important, the
Conservancy relies on the chronology both as referenced in the published case and
by this Court in the 2018 preliminary injunction proceedings. ( . at ; Order
Denying Preliminary Injunction at
Environmental Impact Report; No Historic Status. When the City
appealed the first Trestle mandamus action in 2014, it concurrently prepared an EIR
to save time in advancing the Trestle project in case it did not prevail. (AR 17 499.)
That EIR treated the Trestle as if it was not historic, since it was not yet listed in the
State Register, and found that the demolition would therefore have no significant
environmental impacts. While it found that rehabilitation of the Trestle was feasible,
it was not politically preferred, and since there would be no significant impacts to
demolition the EIR found no reason to advocate for rehabilitation and reuse.
The City Council certified the EIR while the appeal of the underlying case that
had set aside the demolition approval mitigated negative declaration was pending.
At the certification hearing on May 19, 2105, the Council agendized a motion to set
aside the mitigated negative declaration and the demolition project and then to
reconsider the project based on the EIR. However, it pulled the item from the agenda
ause it would have mooted its pending appeal. The Council simply certified the
EIR and approved a mitigation monitoring plan. (A R 2 9, 11, 533, 638, 639.) It did
not set aside prior approvals and did not reapprove the project based on the EIR.
Petitioner’s Opening Brief in Support of Petition for Writ of Mandamus
(AR 1189.14.)
Petitioner’s Opening Brief in Support of Petition for Writ of Mandamus
To be clear, because the Council did not rely on the EIR to approve the Trestle
demolition project, its reliance on the mitigated negative declaration remains intact.
(AR 1192.) At the same hearing, the Council denied a request by its appointed
Historic Preservation Commission to declare the Trestle a landmark. AR 754, 770.)
Historic Status Established In May 2017 California State Historical
Resources Commission the Commission) honored the Trestle with listing in the
California Register of Historical Resources. The listing followed the nomination
the Friends of the Willow Glen Trestle three well attended hearings at which the
Commission unanimously found the Trestle qualified for listing over the strenuous
objections of the City. The Trestle listing was broadly supported by Willow Glen
residents preservation experts including the Commissioners. (AR 529, 531, 534,
539, 654 [minutes of the Commission in Pasadena approving nomination], 660
[minutes of the Commission regarding reconsideration of listing in Sacramento],
777, 1119 [Commission findings 1120 [Commission denial of reconsideration]
The Commission’s action is final State Historic Preservation Officer (SHPO)
Julianne Polanco notified the Friends of the Willow Glen Trestle in writing that the
2017 “determination is the final decision of the Commission and the Willow Glen
Trestle will remain listed on the California Register (AR 534, 1120.)
The Streambed Alteration Agreement. The demolition of the Willow
Glen Trestle to allow for installation of a steel bridge requires a Streambed Alteration
Agreement (SAA) under Fish and Game Code section 1602 and 1603 because the
Petitioner’s Opening Brief in Support of Petition for Writ of Mandamus
project involves work within Los Gatos Creek that affect fish and wildlife. (AR 501.)
The details of the SAA requirements are not at issue, but the City cannot proceed
with demolition of the Trestle without it. The City entered into a prior SAA when
approving the Trestle demolition in 2014. T was extended and expired in
2017. In March 2018 the City, as an “applicant proposing project,” requested a new
SAA to accommodate its proposed demolition project. (AR 782, 783.)
did not simply re issue the 2014 SAA. It rejected the City’s new
proposed agreement as incomplete based on various biological issues. (AR 996,
) The City responded to the CDFW concerns. (AR 997, 1111.) In one section, “...
the city recognizes, as a Habitat Plan Co Permittee, it is using some discretion in
exempting this project from the Habitat Plan ...” (AR 997, see also , 1221
1223.) Correspondence between CDFW and the City continued to alter the draft
through negotiation and review, including “whether the measures in the SAA “are
acceptable” to the City. (AR 1198, 1200 1220, 1225, 1285 1305 and 1322 [substantial
forth comments and amendments the proposed creek diversion plan].)
The SAA acknowledges that s approval requires review recites
its reliance the City’s 2014 mitigated negative declaration. (AR 790.) CDFW
expressed some confusion as to why the City proposed to rely on the 2014 MND
since it certified an EIR for the Three Creeks Trail Pedestrian Bridge project in 2015,
but documented the SAA reliance on the negative declaration as the City proposed
(AR 1143.) As a responsible agency, CDFW was required to consider the
Petitioner’s Opening Brief in Support of Petition for Writ of Mandamus
environmental effects of the project on fish and wildlife pursuant to Public Resources
Code § 21166, Guidelines §§ 15062, 15064, and 15096. (AR 500.)
The eventual SAA signed by the City and CDFW official as of October 4, 2019,
recites that after month negotiation each party accepts and agrees
comply with all provisions ...” (AR 519 519
Statement of the Case
The Conservancy cannot improve on the Court’s explication of the legal
proceedings challenging the demolition of the Trestle since 2014. (Order Denying
Preliminary Injunction (Order) at 2.) Following enial of the injunction, the
Conservancy filed an appeal, but abandoned after being notified by CDFW that
federal permits required for the demolition project forbid operation in the
creek after October 15 and thus equated to de facto injunction until June 15, 2019.
The Conservancy anticipated that this case would either settle or resolve on its
merits before that time. Unfortunately, no settlement occurred and preparation of
the administrative record took significant time despite cooperation by all parties and
counsel. The record was in fact just certified on Friday, May 31, 2019, making timely
filing of this brief impossible. As the Court knows, the merits are still pending and
the Conservancy has renewed its motion for preliminary injunction.
The Conservancy does not know if the City will request judicial notice of
another pending mandamus action, which it filed against the Commission [Case No.
516021] in San Francisco Superior Court in 2018. Its petiti challenges the
Petitioner’s Opening Brief in Support of Petition for Writ of Mandamus
listing of the Trestle in the California Register and also contends that the
Commission’s approval findings were inadequate. The City named the Friends of the
Willow Glen Trestle as real parties in interest and the group is participating in the
litigation as full parties
The Conservancy is not requesting judicial notice of the City’s against the
Commission it turned out, the City did pursue its challenge the
Register listing. However, following the hearing on the merits, the Commission
requested and the Court allowed it to clarify on interlocutory remand its overridi
reasons to list the Trestle in the Register over objections of the City. That occurred
on May 8, 2019. The City concedes it has no further objection
https://webapps.sftc.org/ci/CaseInfo.dll?CaseNum=CPF18516021&SessionID=E98
6446CA4D087619CB7DB4FA5F4A1F681F71337 storic status will remain final.
Standard of Review
In the compressed timeframe for injunction sought in 2018, the parties did
brief standard of review In application of Public Resources Code section 21166
when EIR is required for a supplemental approval upon “ hanged circumstances
or “new information” for a project approved on a negative declaration, the Order
Denying Injunction applied the substantial evidence standard relying on Benton v.
Board of Supervisors (1991) 226 Cal.App.3d 137, 1481. (Order at 4.)
Benton rved as the leading case on the standard of review issue for decades
However, the California Supreme Court recently disapproved it in relevant part
Petitioner’s Opening Brief in Support of Petition for Writ of Mandamus
Gardens 1, supra1 Cal.5th at 958, n.6.) The remand opinion in riends of the
College of San Mateo Gardens v. San Mateo County Community College District
Gardens 2 (2017) 11 Cal.App.5th 596, fn.4explained that the standard of review in
Benton s “effectively the reverse of the standard announced by [Gardens 1 .”
Gardens cases require that under section 21166, supplemental
review of a project initially approved based on a negative declaration unlike
project initially approved following an EIR processmust be in the form of an EIR if
the record contains a fair argument that the project may have significant
environmental impact that was not addressed in the prior environmental review
Gardens 2, 11 Cal.App.5th at 608; Guidelines, §§ 15162, 15164.)
Conservancy cites to Gardens 2the remand decision following Gardens 1, because
of its straightforward application of the fair argument standard to supplemental
review after a negative declaration. Gardens 1 unquestionably applied the fair
argument standard but used language within the context of substantial evidence that
some find confusing. ( ardens 1supra, 1 Cal.5th at 958.)
is Court
Conservancmust prevail merits First “must overcomedifficult
standard review substantialevidence. (Order at 4. oted, partiesad
bri issue TheConservancysubmitsthat recen Gardens
fairargu mentstandardappliestowhetheranEIRisrequiredfo r the A.
Petitioner’s Opening Brief in Support of Petition for Writ of Mandamus
Discussion
Statutory and Regulatory Framework
Fair Argument Standard requires that agencies prepare an EIR for
any project “which may have a significant effect on the environment.” (Pub
Resources Code, § 21151 , italics added n EIR is required whenever substantial
evidence in the record supports a ‘fair argument’ that significant impacts may occur,
even though a different conclusion may also be well supported. (Pocket Protectors v.
City of Sacramento (2004) 124 Cal.App.4th 903, 927; Guidelines, § 15064 (f)(1).)
Sierra Club v. County of Sonoma (1992) 6 Cal.App.4th 1307, explains that “… the
question is one of law, i.e., ‘the sufficiency of the evidence to support a
argument.’ [Citation.] Under this standard, deference to the agency’s determination
is not appropriate and its decision not to require an EIR can be upheld only when
there is no credible evidence to the contrary.” . at 1317 1318.)
Supplemental Environmental Review . Public Resources Code section 21166
provides in relevant part that after an initial project approval, supplemental
environmental review is required when either of the following occur:
(b) Substantial changes occur with respect to the circumstances under which
the project is being undertaken which will require major revisions in the [EIR]
(c) New information, which was not known and could not have been known at
the time the [EIR] was certified as complete, becomes available
Petitioner’s Opening Brief in Support of Petition for Writ of Mandamus
Although the language of section 21166 is directed solely to projects that follow an
agency approval based on an EIR, the Supreme Court in Gardens 1 interpreted the
section to apply to projects following a negative declaration, as provided in
Guidelines section 15162 (a) and (b). The Court concluded that section 15162
constitutes a valid gap filling measure as applied to projects initially approved via
negative declaration ...” (Gardens 1, supra, 1 Cal.5th at 959.)
practical effect section 21166, relevant to this case, is that when an
agency makes a new discretionary approval relating to a previously approved
project, and due to changed circumstances or new information the approval cause
significant environmental impacts not addressed in prior environmental review, the
agency will conduct an appropriate level of CEQA review to inform its new decision.
As quoted , the Guidelines provide that nce a project has
approved, the lead agency’s role in project approval is completedunless further
discretionary approval on that project is required” (Guidelines 15162 (c), italics
added.) The supplemental review must take the form of an EIR if the changed
circumstances or new information involve “new significant environmental effects.”
. at (1), (2), (3)(A).)
Historic Status of the Trestle is New Information
The City and CDFW can and do not deny that the listing of the Trestle in
the California Register occurred in 2017 nor that demolition would have a significant
ironmental impact. The City argued in the 2018 preliminary injunction
Petitioner’s Opening Brief in Support of Petition for Writ of Mandamus
proceedings that the applicable City environmental document is the 2015 EIR. (City
Opposition to Preliminary Injunction at 5 6.) However, that EIR is irrelevant as it
was not relied on for any project approval including the SAA. (Ante at 6 .) The 2014
mitigated negative declaration was relied upon for the SAA.
Regardless, the City’s reasoning is without substance. It argues that that the
Register listing is of no import because concerned parties “knew or could have
known that the Trestle was potentially a historical resource.” (City Opposition to
Preliminary Injunction at 5.) This is off point. The new information is not that the
Trestle might be historic; the new information is that the Trestle definitively
historic and therefore its demolition would have a significant environmental impact
that must be studied in an EIR process before any further discretionary approvals.
This Court in its 2018 injunction ruling also referenced the City’s contention
that the Superior Court order on remand that substantial evidence supported the
City’s finding that the Trestle was not historic, and that the remand order “is final.”
(Order Denying Preliminary Injunction at 5.)
Ci well Cour mand dgmenwasaddressing
the gality of the ity’s actions at the of the option of the itigated gative
Petitioner’s Opening Brief in Support of Petition for Writ of Mandamus
SAA is a “Further Discretionary Project Approval”
Public Resources Code section 21166 and implementing Guideline section
15162 both anticipate subsequent project approvals that trigger supplemental
environmental review. It is undeniable that many CEQA projects have multiple
components and involve many discretionary approvals by the lead agency
responsible agencies undreds of published CEQA cases which the Conservancy
will not list here address projects that differ from each other factually.
egardisupplementalenvironmentalre view, publis
includingGardensan involvepropos initialproject.
statut guideli forsupplementalreviewcited above project
occurrencethat triggers a supplemental EIR Theothertwoare
changed
that forecast
impaddresse mitigatedthe initial project approval .
Supplemental CEQA review in this case is necessary to accomplish the goals of
CEQA. As the Supreme Court held in Tomlinson v. County of Alameda (2012)
54 Cal.4th 281, CEQA is structured to: (1) inform the government and public about a
proposed activity’s potential significant environmental impacts; identify ways to
avoid or significantly reduce environmental damage; prevent environmental
Petitioner’s Opening Brief in Support of Petition for Writ of Mandamus
damage by requiring project changes via alternatives or mitigation measures when
feasible; and (4) disclose to the public the rationale for approval of a project that may
significantly impact the environment. . at 285 286; Pub. Resources Code,
21002; Guidelines 15002. All of these goals are relevant to the preparation of
EIR to address feasible alternatives to demolition of the Trestle in order to avoid
significant impacts that will attend its loss.
Ci approv demoliti 2014despit suitabilit Trestle
for useas part of the ree prings Pedestrian Trail projectfor whichit had lready
purchas teel eplacementridg splitCit Councilapprovalproceeded
whatwasessentiallypretensethattheTre hist orivalueitwas
li histori register,ignori professionalopini
contrarincludi expressed Histori Preservati Commission.
Later,Californi Histori Resource Commissi found Trestl
;
Most important, the SAA is a City initiated action under changed
circumstances and new information: the Trestle is now listed in the California
Petitioner’s Opening Brief in Support of Petition for Writ of Mandamus
Register and its demolition would have a significant environmental impact. All prior
City approvals based on the mitigated negative declaration proceeded up finding
that the Trestle is historic and that its demolition would have significant
impact. The SAA removes the last impediment to demolition and opens up the City’s
consideration responsibility and opportunity to protect, if feasible, a
unique historic resource vital to the history of Willow Glen.
In CEQA parlance, environmental review always encompasses the “whole of
the action” so that no project elements may proceed until the entire project is studied
and approved. (Guidelines, § 15378 (a).) The SAA is a required approval and
prerequisite for the project to proceed, happening after the project’s significant
impact has been illuminated by the Trestle’s listing in the California Register. If the
Trestle had required no additional discretionary approvals, historic register listing
ould assuredly not prevent demolition despite the out date CEQA review. But the
plain meaning of Guideline section 15162 (c) controls, and warrants recitation one
more time: “ nce a project has been approved, the lead agency’s role in project
approval is completedunless further discretionary approval on that project is
required” (Guidelines 15162 (c), italics added.) Supplemental review must take the
form of an EIR because changed circumstances and new information involve “new
significant environmental effects.” ( . at (a) (1), (2), (3)(A).)
Guideline section 15162 (c) refers to a lead agency , not a new project
Consistently, Public Resources Code section 21166 subdivision (b) calls out
“substantial changes ... with respect to the circumstances under which the project is
Petitioner’s Opening Brief in Support of Petition for Writ of Mandamus
being undertaken and (c) addresses “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.Again, the point of 21166 is to make sure
that new significant impacts of the project that become apparent after the initial
project approval are subjected to CEQA review and mitigation if opportunity arises
in the shape of a new discretionary action
The negative declaration relied upon for the SAA did not address the
significant impacts that are now known to necessarily result from demolition of a
recognized historic resource. (Pub. Resources Code, § 21084.1.) Now that the City
has a new discretionary approval to consider before it may move forward to demolish
the Trestle, it must do so in light of changed circumstance and new information.
This is an ptimum circumstance in which a project should be halted to consider
environmental protections mandated by CEQA: demolition of an historic resource
Court’s Denial of P reliminary njunction cites Cucamongans United for
Reasonable Expansion v. City of Rancho Cucamonga (200 82 Cal.App.4th 473
478, in which petitioners unsuccessfully sought a supplemental EIR to study
application for design review seven years after tentative map had been approved in
The Court’s ruling on the preliminary injunction considers “new project” as
addressed in Moss v. County of Humbol (2008) 162 Cal.App.4th 1041, 1056. Before
, whether a project was considered “new” or “supplemental” to an existing project
affected the standard of review for preparation of an EIR. That distinction between
“new” and “supplemental” was resolved in Gardens 1, when the Supreme Court held
that whether characterized as “new” or “supplemental” the fair argument standard
applies when an initial CEQA document does not address a significant project impact
that becomes apparent with a later approval. (Gardens 1, supra, 1 Cal.5th at 953 968.)
Petitioner’s Opening Brief in Support of Petition for Writ of Mandamus
1990Cucamongans laimedthat there as new that had
availabltim tentativemapapproval EI
application “[W] Cit review app lication rocess, ere
wasno‘discretionaryapproval’ ; henceanSEIRnotrequired. at478.)
Cucamongans acts would mparable the ity of San Josédeclinedto enter
into AA ; therewouldthenbenodiscretionaryapprovalunder
Guidelinessection15162(c). rojects at an gency isapproves xempt from
review.(Pub. esources Cod 21080(b)(5); uidelines, 15061(b)(4).
As the Conservancy presented to this Court and to the City and CDFW
e.g 1280.1), while the 2015 EIR is irrelevant to the merits of this case ( at
, the bulk of its content can be fully recycled. There is no need to draft a new EIR
from scratch. A range of reasonable alternatives ould need to identified for reuse
of the Trestle (Guidelines, 15126.6)and the Conservancy will likely request that the
EIR study the hybrid bridge idea that surfaced during the 2018 injunction
proceedings that could leave the Trestle’s wooden supports intact utilize the new
steel bridge for the trail surface placed above the historic Trestle, and fully avoid
impacts to Los Gatos Creek. The EIR would analyze the feasibility of the various
alternatives that the City must then consider when deciding whether it can avoid
significant impacts as mandated by the Act. (Pub. Resources Code, § 21081
Petitioner’s Opening Brief in Support of Petition for Writ of Mandamus
Conclusion
The Willow Glen Conservancy and the Friends of the Willow Glen Trestle
request judgment and issuance of a peremptory writ in the public interest ordering
that the City and CDFW set aside their approvals of the Streambed Alteration
Agreement and that approval not be reconsidered until the City prepares and
certifies an environmental impact report and fully complies with CEQA.
June 1, 2019 Respectfully submitted,
Susan Brandt Hawley
Attorney for Petitioners
Petitioner’s Opening Brief in Support of Petition for Writ of Mandamus
Willow Glen Trestle Conservancy, et al. v. City of San José, et al.
Santa Clara County Superior Court Case No. 18CV335801
PROOF OF SERVICE
am a citizen of the United States and a resident of the County of Sonoma. I am
over the age of eighteen years and not a party to this action. My business address is
P.O. Box 1659, Glen Ellen, California 95442.
On June 1, 2019, I served one true copy of:
Petitioner’s Opening Brief on the Merits
By placing a true copy enclosed in a sealed envelope with prepaid postage,
in the United States mail in Petaluma, California, as listed below:
emailing a copy to counsel as listed below:
Margo Laskowska margo.laskowska@sanjoseca.gov
Elisa Tolentino elisa.tolentino@sanjoseca.gov
Sara Van Loh sara.vanloh@doj.ca.gov
Connie connie.sung@doj.ca.gov
declare under penalty of perjury that the foregoing is true and is executed on
June 1, 2019, at Glen Ellen, California.
Susan Brandt Hawley
Proof of Service
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1 Susan Brandt Hawley/SBN 75907 BRANDT HAWLEY LAW GROUP 2 P.O. Box 1659 3 Glen Ellen, CA 95442 707.938.3900, fax 707.938.3200 4 susanbh@preservationlawyers.com 5 6 Attorney for Petitioners 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SANTA CLARA Willow Glen Trestle Conservancy, Case No. 18CIV335801 an unincorporated association, and Friends of the Willow Glen Trestle Petitioner’s Opening Brief an unincorporated association; on the Merits Petitioners, Honorable Thomas E. Kuhnle City of San Jos City of San Jos Department of Public Works; Date June 27, 2019 California Department of Fish and Time 9:00 a.m. Wildlife; and Does 1 to 10; Dept 5 Respondents; / Petitioner’s Opening Brief in Support of Petition for Writ of Mandamus able of Contents Introduction and Summary of Argument Statement of Facts Mitigated Negative Declaration; No Historic Status Environmental Impact Report; No Historic Status Historic Status Established The Streambed Alteration Agreement Statement of the Case Standard of Review Discussion Statutory and Regulatory Framework Fair Argument Standard Supplemental Environmental Review Historic Status of the Trestle is New Information C. The SAA is a Further Discretionary Project Approval Conclusion Table of Contents Table of Authorities Case Law Page Benton v. Board of Supervisors (1991) 226 Cal.App.3d 137 62 Cal.4th 204 Cucamongans United for Reasonable Expansion v. City of Rancho Cucamonga (2000) 82 Cal.App.4th 473 ,20 riends of the College of San Mateo Gardens v. San Mateo County Community College District Gardens ) (2016) 1 Cal.5th 937 ,12,14,16 riends of the College of San Mateo Gardens v. San Mateo County Community College District Gardens ) (2017) 11 Cal.App.5th 596 ,12,16 Friends of the Willow Glen Trestle v. City of San José (2016 2 Cal.App.5th 457 5,6 Moss v. County of Humboldt (2008) 162 Cal.App.4th 1041 Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903 Sierra Club v. County of Sonoma (1992) 6 Cal.App.4th 1307 Tomlinson v. County of Alameda (2012) 54 Cal.4th 281 ,17 Fish and Game Code Sections 1602 1603 Public Resources Code Sections (5) (2) Proof of Service Introduction and Summary of Argument The Willow Glen Trestle Conservancy and Friends of the Willow Glen Trestle (collectively, the Conservancy) the Court’s peremptory writ to uphold the protective mandates of CEQA, a citizen enforced statute. Supplemental environmental review must now inform the San José City Council’s exercise of discretion in considering the fate of the newly protected historic Willow Glen Trestle. Conservancy does not ask the Court to decide whether the Three Creeks Trail Pedestrian Bridge should proceed with a rehabilitated Trestle generic steel bridge a combination. That decision is the purview of the elected Council. The unusual facts of this case were intensively briefed and reviewed by the Court during preliminary injunction proceedings in October 2018 City approved demolition of the Trestle in 2014, treating as if it had no historic value he City relied on a mitigated negative declaration that was challenged by the Friends of the Willow Glen Trestle and set aside this Court The City successfully appealed to the Sixth District while concurrently preparing environmental impact report (EIR) as a cautionary step in case its appeal was denied Since the City’s tive declaration was upheld, it used the 2015 EIR to approve demolition. In 2017, circumstances materially in the most important way. he California Historical Resources Commission nally and firmly resolved the Trestle’ legally disputed historic status. The Commissio listed the Trestle n the Facts discussed in the Introduction are cited to the record, Petitioner’s Opening Brief in Support of Petition for Writ of Mandamus California Register of Historical Resources over the City’s strong objections Trestle qualified historic resource entitled to protections for any new approvals subject to CEQA. (Pub. Resources Code, 21084.1.) While the City need not reopen its 2014 project approval , the Trestle’s newly established historic eminence trigger supplemental obligations for new discretionary action the City’s choice to enter into Streambed Alteration Agreement (SAA) with the California Department of Fish and Wildlife (CDFW) in order to move forward with demolition The Willow Glen Trestle in 1955 Guidelines provide that “[o]nce a project has been approved, the lead agency’s role in project approval is completed unless further discretionary approval on that project is required ” (CEQA Guidelines [14 Cal.Code Regs.] 15162 (c), italics added In light of the new significant environmental effect that was established when the negative declaration was approved the loss of a mandatory historic resource supplemental review must now inform “further discretionary approval of the SAA . at (b), (c), (d Resources Code § 21166. Historic status is no longer resolvable judicial deference to the City Petitioner’s Opening Brief in Support of Petition for Writ of Mandamus Under the facts, supplemental review in the form of an EIR is required before the City may take a new discretionary action to demolish the now historic Trestle under the changed circumstances. The California Supreme Court decision in riends of the College of San Mateo Gardens v. San Mateo County Community College District Gardens ) (2016) 1 Cal.5th 937, 957 958 and the remand decision in riends of the College of San Mateo Gardens v. San Mateo County Community College District Gardens ) (2017) 11 Cal.App.5th 596 are controlling. ( at 14.) This Court based its denial of preliminary injunction in October 2018 in significant part on cceptance of the City’s contention that the SAA s not a “further discretionary approval on that project would trigger supplemental CEQA review. (Order Denying Preliminary Injunction at 6.) The Court also asserted that “the finalization of the SAA did not change the activity to be undertaken.” ( . at 7.) Conservancy’s briefs focus on these important points both in the pending injunction motion and on the merits, in the light of the full administrative record SAA is a new discretionary approval unless set aside by issuance of a writ will result demolition of the historic, well loved Trestle As that would cause significant environmental impact as a matter of law (Pub. Resources Code, § 21084.1) a negative declaration cannot suffice. ( . at § 21151.) Conservancy respectfully requests that the ourt issue a peremptory writ ordering that the City and CDFW set aside the SAA and that before considering another SAA, the City prepare a supplemental EIR rather than continuing to rely on the 2014 mitigated negative declaration new EIR may freely reuse all relevant portions of the 2015 EIR. Petitioner’s Opening Brief in Support of Petition for Writ of Mandamus The Conservancy has come to agree with the position taken by CDFW that the City remains the ‘lead’ agency responsible for supplemental CEQA review. The City broader responsibilities than CDFW, a ‘responsible’ agency solely focused on fish and wildlife issues. (Pub. Resources Code, §§ 21067, 21069.) The City’s CEQA obligations encompass protection of all resources in its jurisdiction, including historic sites unique the Valley of Heart’s Delight. If the SAA was a one way permit CDFW might well step into the shoes of lead agency since it has final project approval prior to demolition. But that question resolved here. Since oth agencies exercised discretion when entering into the SAA lead agency obligations not shift to CDFW. The Court’s peremptory writ will serve the public interest At last, procedural and substantive protections of CEQA can be objectively applied to see whether the historic Willow Glen Trestle may survive to serve as the Three Creeks Trail Pedestrian Bridge Statement of Facts Mitigated Negative Declaration No Historic Status ity approved demolition of the Trestle 2014, after buying a steel replacement bridge for the Three Creeks Trail Pedestrian Bridge Project before any CEQA process (AR 691.) Since the Trestle was not listed in any historic register in 2014, the ity made a finding that it was not historic Over the passionate objections of Willow Glen residents and archivists, it approved demolition based on a mitigated negative declaration. That action was ultimately upheld by this Court in case number 14CIV following decision of the Sixth District Court of Appeal in Friends of Petitioner’s Opening Brief in Support of Petition for Writ of Mandamus the Willow Glen Trestle v. City of San José (2016) 2 Cal.App.5th 457. While the undisputed facts between 2014 and 2016 are relevant and important, the Conservancy relies on the chronology both as referenced in the published case and by this Court in the 2018 preliminary injunction proceedings. ( . at ; Order Denying Preliminary Injunction at Environmental Impact Report; No Historic Status. When the City appealed the first Trestle mandamus action in 2014, it concurrently prepared an EIR to save time in advancing the Trestle project in case it did not prevail. (AR 17 499.) That EIR treated the Trestle as if it was not historic, since it was not yet listed in the State Register, and found that the demolition would therefore have no significant environmental impacts. While it found that rehabilitation of the Trestle was feasible, it was not politically preferred, and since there would be no significant impacts to demolition the EIR found no reason to advocate for rehabilitation and reuse. The City Council certified the EIR while the appeal of the underlying case that had set aside the demolition approval mitigated negative declaration was pending. At the certification hearing on May 19, 2105, the Council agendized a motion to set aside the mitigated negative declaration and the demolition project and then to reconsider the project based on the EIR. However, it pulled the item from the agenda ause it would have mooted its pending appeal. The Council simply certified the EIR and approved a mitigation monitoring plan. (A R 2 9, 11, 533, 638, 639.) It did not set aside prior approvals and did not reapprove the project based on the EIR. Petitioner’s Opening Brief in Support of Petition for Writ of Mandamus (AR 1189.14.) Petitioner’s Opening Brief in Support of Petition for Writ of Mandamus To be clear, because the Council did not rely on the EIR to approve the Trestle demolition project, its reliance on the mitigated negative declaration remains intact. (AR 1192.) At the same hearing, the Council denied a request by its appointed Historic Preservation Commission to declare the Trestle a landmark. AR 754, 770.) Historic Status Established In May 2017 California State Historical Resources Commission the Commission) honored the Trestle with listing in the California Register of Historical Resources. The listing followed the nomination the Friends of the Willow Glen Trestle three well attended hearings at which the Commission unanimously found the Trestle qualified for listing over the strenuous objections of the City. The Trestle listing was broadly supported by Willow Glen residents preservation experts including the Commissioners. (AR 529, 531, 534, 539, 654 [minutes of the Commission in Pasadena approving nomination], 660 [minutes of the Commission regarding reconsideration of listing in Sacramento], 777, 1119 [Commission findings 1120 [Commission denial of reconsideration] The Commission’s action is final State Historic Preservation Officer (SHPO) Julianne Polanco notified the Friends of the Willow Glen Trestle in writing that the 2017 “determination is the final decision of the Commission and the Willow Glen Trestle will remain listed on the California Register (AR 534, 1120.) The Streambed Alteration Agreement. The demolition of the Willow Glen Trestle to allow for installation of a steel bridge requires a Streambed Alteration Agreement (SAA) under Fish and Game Code section 1602 and 1603 because the Petitioner’s Opening Brief in Support of Petition for Writ of Mandamus project involves work within Los Gatos Creek that affect fish and wildlife. (AR 501.) The details of the SAA requirements are not at issue, but the City cannot proceed with demolition of the Trestle without it. The City entered into a prior SAA when approving the Trestle demolition in 2014. T was extended and expired in 2017. In March 2018 the City, as an “applicant proposing project,” requested a new SAA to accommodate its proposed demolition project. (AR 782, 783.) did not simply re issue the 2014 SAA. It rejected the City’s new proposed agreement as incomplete based on various biological issues. (AR 996, ) The City responded to the CDFW concerns. (AR 997, 1111.) In one section, “... the city recognizes, as a Habitat Plan Co Permittee, it is using some discretion in exempting this project from the Habitat Plan ...” (AR 997, see also , 1221 1223.) Correspondence between CDFW and the City continued to alter the draft through negotiation and review, including “whether the measures in the SAA “are acceptable” to the City. (AR 1198, 1200 1220, 1225, 1285 1305 and 1322 [substantial forth comments and amendments the proposed creek diversion plan].) The SAA acknowledges that s approval requires review recites its reliance the City’s 2014 mitigated negative declaration. (AR 790.) CDFW expressed some confusion as to why the City proposed to rely on the 2014 MND since it certified an EIR for the Three Creeks Trail Pedestrian Bridge project in 2015, but documented the SAA reliance on the negative declaration as the City proposed (AR 1143.) As a responsible agency, CDFW was required to consider the Petitioner’s Opening Brief in Support of Petition for Writ of Mandamus environmental effects of the project on fish and wildlife pursuant to Public Resources Code § 21166, Guidelines §§ 15062, 15064, and 15096. (AR 500.) The eventual SAA signed by the City and CDFW official as of October 4, 2019, recites that after month negotiation each party accepts and agrees comply with all provisions ...” (AR 519 519 Statement of the Case The Conservancy cannot improve on the Court’s explication of the legal proceedings challenging the demolition of the Trestle since 2014. (Order Denying Preliminary Injunction (Order) at 2.) Following enial of the injunction, the Conservancy filed an appeal, but abandoned after being notified by CDFW that federal permits required for the demolition project forbid operation in the creek after October 15 and thus equated to de facto injunction until June 15, 2019. The Conservancy anticipated that this case would either settle or resolve on its merits before that time. Unfortunately, no settlement occurred and preparation of the administrative record took significant time despite cooperation by all parties and counsel. The record was in fact just certified on Friday, May 31, 2019, making timely filing of this brief impossible. As the Court knows, the merits are still pending and the Conservancy has renewed its motion for preliminary injunction. The Conservancy does not know if the City will request judicial notice of another pending mandamus action, which it filed against the Commission [Case No. 516021] in San Francisco Superior Court in 2018. Its petiti challenges the Petitioner’s Opening Brief in Support of Petition for Writ of Mandamus listing of the Trestle in the California Register and also contends that the Commission’s approval findings were inadequate. The City named the Friends of the Willow Glen Trestle as real parties in interest and the group is participating in the litigation as full parties The Conservancy is not requesting judicial notice of the City’s against the Commission it turned out, the City did pursue its challenge the Register listing. However, following the hearing on the merits, the Commission requested and the Court allowed it to clarify on interlocutory remand its overridi reasons to list the Trestle in the Register over objections of the City. That occurred on May 8, 2019. The City concedes it has no further objection https://webapps.sftc.org/ci/CaseInfo.dll?CaseNum=CPF18516021&SessionID=E98 6446CA4D087619CB7DB4FA5F4A1F681F71337 storic status will remain final. Standard of Review In the compressed timeframe for injunction sought in 2018, the parties did brief standard of review In application of Public Resources Code section 21166 when EIR is required for a supplemental approval upon “ hanged circumstances or “new information” for a project approved on a negative declaration, the Order Denying Injunction applied the substantial evidence standard relying on Benton v. Board of Supervisors (1991) 226 Cal.App.3d 137, 1481. (Order at 4.) Benton rved as the leading case on the standard of review issue for decades However, the California Supreme Court recently disapproved it in relevant part Petitioner’s Opening Brief in Support of Petition for Writ of Mandamus Gardens 1, supra1 Cal.5th at 958, n.6.) The remand opinion in riends of the College of San Mateo Gardens v. San Mateo County Community College District Gardens 2 (2017) 11 Cal.App.5th 596, fn.4explained that the standard of review in Benton s “effectively the reverse of the standard announced by [Gardens 1 .” Gardens cases require that under section 21166, supplemental review of a project initially approved based on a negative declaration unlike project initially approved following an EIR processmust be in the form of an EIR if the record contains a fair argument that the project may have significant environmental impact that was not addressed in the prior environmental review Gardens 2, 11 Cal.App.5th at 608; Guidelines, §§ 15162, 15164.) Conservancy cites to Gardens 2the remand decision following Gardens 1, because of its straightforward application of the fair argument standard to supplemental review after a negative declaration. Gardens 1 unquestionably applied the fair argument standard but used language within the context of substantial evidence that some find confusing. ( ardens 1supra, 1 Cal.5th at 958.) is Court Conservancmust prevail merits First “must overcomedifficult standard review substantialevidence. (Order at 4. oted, partiesad bri issue TheConservancysubmitsthat recen Gardens fairargu mentstandardappliestowhetheranEIRisrequiredfo r the A. Petitioner’s Opening Brief in Support of Petition for Writ of Mandamus Discussion Statutory and Regulatory Framework Fair Argument Standard requires that agencies prepare an EIR for any project “which may have a significant effect on the environment.” (Pub Resources Code, § 21151 , italics added n EIR is required whenever substantial evidence in the record supports a ‘fair argument’ that significant impacts may occur, even though a different conclusion may also be well supported. (Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, 927; Guidelines, § 15064 (f)(1).) Sierra Club v. County of Sonoma (1992) 6 Cal.App.4th 1307, explains that “… the question is one of law, i.e., ‘the sufficiency of the evidence to support a argument.’ [Citation.] Under this standard, deference to the agency’s determination is not appropriate and its decision not to require an EIR can be upheld only when there is no credible evidence to the contrary.” . at 1317 1318.) Supplemental Environmental Review . Public Resources Code section 21166 provides in relevant part that after an initial project approval, supplemental environmental review is required when either of the following occur: (b) Substantial changes occur with respect to the circumstances under which the project is being undertaken which will require major revisions in the [EIR] (c) New information, which was not known and could not have been known at the time the [EIR] was certified as complete, becomes available Petitioner’s Opening Brief in Support of Petition for Writ of Mandamus Although the language of section 21166 is directed solely to projects that follow an agency approval based on an EIR, the Supreme Court in Gardens 1 interpreted the section to apply to projects following a negative declaration, as provided in Guidelines section 15162 (a) and (b). The Court concluded that section 15162 constitutes a valid gap filling measure as applied to projects initially approved via negative declaration ...” (Gardens 1, supra, 1 Cal.5th at 959.) practical effect section 21166, relevant to this case, is that when an agency makes a new discretionary approval relating to a previously approved project, and due to changed circumstances or new information the approval cause significant environmental impacts not addressed in prior environmental review, the agency will conduct an appropriate level of CEQA review to inform its new decision. As quoted , the Guidelines provide that nce a project has approved, the lead agency’s role in project approval is completedunless further discretionary approval on that project is required” (Guidelines 15162 (c), italics added.) The supplemental review must take the form of an EIR if the changed circumstances or new information involve “new significant environmental effects.” . at (1), (2), (3)(A).) Historic Status of the Trestle is New Information The City and CDFW can and do not deny that the listing of the Trestle in the California Register occurred in 2017 nor that demolition would have a significant ironmental impact. The City argued in the 2018 preliminary injunction Petitioner’s Opening Brief in Support of Petition for Writ of Mandamus proceedings that the applicable City environmental document is the 2015 EIR. (City Opposition to Preliminary Injunction at 5 6.) However, that EIR is irrelevant as it was not relied on for any project approval including the SAA. (Ante at 6 .) The 2014 mitigated negative declaration was relied upon for the SAA. Regardless, the City’s reasoning is without substance. It argues that that the Register listing is of no import because concerned parties “knew or could have known that the Trestle was potentially a historical resource.” (City Opposition to Preliminary Injunction at 5.) This is off point. The new information is not that the Trestle might be historic; the new information is that the Trestle definitively historic and therefore its demolition would have a significant environmental impact that must be studied in an EIR process before any further discretionary approvals. This Court in its 2018 injunction ruling also referenced the City’s contention that the Superior Court order on remand that substantial evidence supported the City’s finding that the Trestle was not historic, and that the remand order “is final.” (Order Denying Preliminary Injunction at 5.) Ci well Cour mand dgmenwasaddressing the gality of the ity’s actions at the of the option of the itigated gative Petitioner’s Opening Brief in Support of Petition for Writ of Mandamus SAA is a “Further Discretionary Project Approval” Public Resources Code section 21166 and implementing Guideline section 15162 both anticipate subsequent project approvals that trigger supplemental environmental review. It is undeniable that many CEQA projects have multiple components and involve many discretionary approvals by the lead agency responsible agencies undreds of published CEQA cases which the Conservancy will not list here address projects that differ from each other factually. egardisupplementalenvironmentalre view, publis includingGardensan involvepropos initialproject. statut guideli forsupplementalreviewcited above project occurrencethat triggers a supplemental EIR Theothertwoare changed that forecast impaddresse mitigatedthe initial project approval . Supplemental CEQA review in this case is necessary to accomplish the goals of CEQA. As the Supreme Court held in Tomlinson v. County of Alameda (2012) 54 Cal.4th 281, CEQA is structured to: (1) inform the government and public about a proposed activity’s potential significant environmental impacts; identify ways to avoid or significantly reduce environmental damage; prevent environmental Petitioner’s Opening Brief in Support of Petition for Writ of Mandamus damage by requiring project changes via alternatives or mitigation measures when feasible; and (4) disclose to the public the rationale for approval of a project that may significantly impact the environment. . at 285 286; Pub. Resources Code, 21002; Guidelines 15002. All of these goals are relevant to the preparation of EIR to address feasible alternatives to demolition of the Trestle in order to avoid significant impacts that will attend its loss. Ci approv demoliti 2014despit suitabilit Trestle for useas part of the ree prings Pedestrian Trail projectfor whichit had lready purchas teel eplacementridg splitCit Councilapprovalproceeded whatwasessentiallypretensethattheTre hist orivalueitwas li histori register,ignori professionalopini contrarincludi expressed Histori Preservati Commission. Later,Californi Histori Resource Commissi found Trestl ; Most important, the SAA is a City initiated action under changed circumstances and new information: the Trestle is now listed in the California Petitioner’s Opening Brief in Support of Petition for Writ of Mandamus Register and its demolition would have a significant environmental impact. All prior City approvals based on the mitigated negative declaration proceeded up finding that the Trestle is historic and that its demolition would have significant impact. The SAA removes the last impediment to demolition and opens up the City’s consideration responsibility and opportunity to protect, if feasible, a unique historic resource vital to the history of Willow Glen. In CEQA parlance, environmental review always encompasses the “whole of the action” so that no project elements may proceed until the entire project is studied and approved. (Guidelines, § 15378 (a).) The SAA is a required approval and prerequisite for the project to proceed, happening after the project’s significant impact has been illuminated by the Trestle’s listing in the California Register. If the Trestle had required no additional discretionary approvals, historic register listing ould assuredly not prevent demolition despite the out date CEQA review. But the plain meaning of Guideline section 15162 (c) controls, and warrants recitation one more time: “ nce a project has been approved, the lead agency’s role in project approval is completedunless further discretionary approval on that project is required” (Guidelines 15162 (c), italics added.) Supplemental review must take the form of an EIR because changed circumstances and new information involve “new significant environmental effects.” ( . at (a) (1), (2), (3)(A).) Guideline section 15162 (c) refers to a lead agency , not a new project Consistently, Public Resources Code section 21166 subdivision (b) calls out “substantial changes ... with respect to the circumstances under which the project is Petitioner’s Opening Brief in Support of Petition for Writ of Mandamus being undertaken and (c) addresses “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.Again, the point of 21166 is to make sure that new significant impacts of the project that become apparent after the initial project approval are subjected to CEQA review and mitigation if opportunity arises in the shape of a new discretionary action The negative declaration relied upon for the SAA did not address the significant impacts that are now known to necessarily result from demolition of a recognized historic resource. (Pub. Resources Code, § 21084.1.) Now that the City has a new discretionary approval to consider before it may move forward to demolish the Trestle, it must do so in light of changed circumstance and new information. This is an ptimum circumstance in which a project should be halted to consider environmental protections mandated by CEQA: demolition of an historic resource Court’s Denial of P reliminary njunction cites Cucamongans United for Reasonable Expansion v. City of Rancho Cucamonga (200 82 Cal.App.4th 473 478, in which petitioners unsuccessfully sought a supplemental EIR to study application for design review seven years after tentative map had been approved in The Court’s ruling on the preliminary injunction considers “new project” as addressed in Moss v. County of Humbol (2008) 162 Cal.App.4th 1041, 1056. Before , whether a project was considered “new” or “supplemental” to an existing project affected the standard of review for preparation of an EIR. That distinction between “new” and “supplemental” was resolved in Gardens 1, when the Supreme Court held that whether characterized as “new” or “supplemental” the fair argument standard applies when an initial CEQA document does not address a significant project impact that becomes apparent with a later approval. (Gardens 1, supra, 1 Cal.5th at 953 968.) Petitioner’s Opening Brief in Support of Petition for Writ of Mandamus 1990Cucamongans laimedthat there as new that had availabltim tentativemapapproval EI application “[W] Cit review app lication rocess, ere wasno‘discretionaryapproval’ ; henceanSEIRnotrequired. at478.) Cucamongans acts would mparable the ity of San Josédeclinedto enter into AA ; therewouldthenbenodiscretionaryapprovalunder Guidelinessection15162(c). rojects at an gency isapproves xempt from review.(Pub. esources Cod 21080(b)(5); uidelines, 15061(b)(4). As the Conservancy presented to this Court and to the City and CDFW e.g 1280.1), while the 2015 EIR is irrelevant to the merits of this case ( at , the bulk of its content can be fully recycled. There is no need to draft a new EIR from scratch. A range of reasonable alternatives ould need to identified for reuse of the Trestle (Guidelines, 15126.6)and the Conservancy will likely request that the EIR study the hybrid bridge idea that surfaced during the 2018 injunction proceedings that could leave the Trestle’s wooden supports intact utilize the new steel bridge for the trail surface placed above the historic Trestle, and fully avoid impacts to Los Gatos Creek. The EIR would analyze the feasibility of the various alternatives that the City must then consider when deciding whether it can avoid significant impacts as mandated by the Act. (Pub. Resources Code, § 21081 Petitioner’s Opening Brief in Support of Petition for Writ of Mandamus Conclusion The Willow Glen Conservancy and the Friends of the Willow Glen Trestle request judgment and issuance of a peremptory writ in the public interest ordering that the City and CDFW set aside their approvals of the Streambed Alteration Agreement and that approval not be reconsidered until the City prepares and certifies an environmental impact report and fully complies with CEQA. June 1, 2019 Respectfully submitted, Susan Brandt Hawley Attorney for Petitioners Petitioner’s Opening Brief in Support of Petition for Writ of Mandamus Willow Glen Trestle Conservancy, et al. v. City of San José, et al. Santa Clara County Superior Court Case No. 18CV335801 PROOF OF SERVICE am a citizen of the United States and a resident of the County of Sonoma. I am over the age of eighteen years and not a party to this action. My business address is P.O. Box 1659, Glen Ellen, California 95442. On June 1, 2019, I served one true copy of: Petitioner’s Opening Brief on the Merits By placing a true copy enclosed in a sealed envelope with prepaid postage, in the United States mail in Petaluma, California, as listed below: emailing a copy to counsel as listed below: Margo Laskowska margo.laskowska@sanjoseca.gov Elisa Tolentino elisa.tolentino@sanjoseca.gov Sara Van Loh sara.vanloh@doj.ca.gov Connie connie.sung@doj.ca.gov declare under penalty of perjury that the foregoing is true and is executed on June 1, 2019, at Glen Ellen, California. Susan Brandt Hawley Proof of Service