City’s Failure to Exercise CEQA Discretion in Properly Designating a Potentially Historic Resource Constitutes Reversible Error

The Court noted that CEQA and the implementing Guidelines established three categories for historical resources: (1) mandatory historical resources; (2) presumptive historical resources; and (3) discretionary historical resources. The building in question was not a mandatory historical resource, since there was no evidence that the State Historical Resources Commission had listed it in, or determined it to be eligible for listing in the State Register. Nor was the building a presumptive historical resource, since the City Council had already declined to locally list the building.

The third category—discretionary historical resources—was a category the Court found to be implicit in CEQA and the Guidelines. A lead agency may determine a resource to be historically significant if the determination is supported by substantial evidence, and generally, a resource that meets the criteria for listing in the State Register shall be considered an historical resource. Therefore, the Court concluded that the City had an obligation to exercise some discretion, and could have found the apartment building to be an historical resource for CEQA purposes, despite the City’s decision not to list the building in the local register. Because the City Council had been misadvised regarding its discretion in light of its earlier decision not to locally list the building, the City Council had not properly exercised its discretion under CEQA. The Court, therefore, concluded that the “City Council prejudicially abused its discretion by failing to proceed in a manner required by law.” Notably, the Court also found that a lead agency was not required to employ the “fair argument” standard when determining a building’s historical significance under CEQA’s discretionary historical resources category. The Court ordered that the matter be remanded and petitioner’s request for writ be granted.

Please feel free to contact the author, attorney Brian Crossman, with questions regarding this legal alert.

Meyers Nave has extensive experience in both the administrative and litigation phases of CEQA. If you have any questions regarding this case or any other CEQA matter, please contact either Steve Mattas or Amrit Kulkarni at or both at 510-808-2000.