Coalition for Historical Integrity v. City of San Buenaventura

Filed 5/12/23; Certified for Publication 6/8/23 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
COALITION FOR 2d Civ. No. B319536
HISTORICAL INTEGRITY, (Super. Ct. No. 56-2020-
00543397-CU-PT-VTA)
Plaintiff and Appellant, (Ventura County)
v.
CITY OF SAN
BUENAVENTURA,
Defendant and Respondent.
This case illustrates the obvious; attitudes and values
change. The City of San Buenaventura (City) removed a statute
of Father Junípero Serra because it is now offensive to significant
members of the community.
This appeal stems from the denial of a writ of mandate to
require the City to restore the statute. We do not judge the
wisdom or the action of the City’s legislative enactments. (Wells
Fargo Bank v. Superior Court (1991) 53 Cal.3d 1082, 1099.) We
affirm because the City acted within its legislative prerogative.
FACTS
The Statue of Junípero Serra
In 1936, a concrete statue of Serra was dedicated in front of
the Ventura County courthouse, now San Buenaventura City
Hall. At nine feet four inches the statue was larger than life and
stood on a rise overlooking all of downtown. In February 1974,
the City adopted a resolution declaring the statue to be a historic
landmark, designated as Landmark No. 3.
The Bronze Replica Statue Departure
By 1983, the statue was showing its age. It was cracking
and in danger of falling apart. The City replaced the concrete
statue with one cast in bronze. A local woodcarver created the
form that was used for the cast. The new bronze statue of Serra
was dedicated in 1989. A plaque was placed at the base of the
replica statue that stated, “Landmark No. 3.”
The City’s Review of the Statue’s Landmark Status
In 2002, the City created a list of historic landmarks. The
bronze statue was placed on the list designated as Landmark
No. 3. Also in 2002, at the City’s request, the Ventura County
Recorder recorded the 1974 minute order designating the original
Serra statue as a historic landmark.
In 2005, the environmental impact report for the City’s
General Plan included the bronze statue on a list of landmarks in
an appendix to the report. The General Plan marks the location
of the statue as a historical site.
In 2007, as part of the Downtown Specific Plan (Specific
Plan), the City commissioned the Historic Resources Group
(HRG) to conduct a survey. The purpose of the survey was to
determine whether existing landmarks retain sufficient historic
integrity to remain eligible for that designation. The survey
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identified the bronze statue as one of the previously designated
landmarks that remain eligible for that determination. The
Specific Plan lists the bronze statue as a historic resource.
The Bronze Statue’s Demise
In the summer of 2020, the bronze statue was the subject of
protests and vandalism. The City’s mayor met with a
representative from the Barbareno/Ventureno Band of Mission
Indians (Chumash) and the pastor of the Mission San
Buenaventura. The mayor, the Chumash representative, and the
pastor signed a letter expressing the belief that the statue should
be “moved to a more appropriate non-public location.”
The City again hired the HRG to conduct a historic analysis
of the original concrete statue and the bronze replica statue. This
time the HRG report concluded that the bronze statue did not
meet the criteria for a historic landmark. Among the reasons
given was that an object must be at least 40 years old to be
eligible for a local historic designation and the 1989 bronze statue
did not meet those criteria.
Based on the HRG report, the City’s Historic Preservation
Committee voted that the bronze statue is not Landmark No. 3,
and not eligible for historic landmark status.
Thereafter, the city council met and adopted three findings.
First, the bronze statue does not meet the criteria for a historic
designation. Second, the decision to relocate the bronze statue is
exempt from the California Environmental Quality Act 1 (CEQA)
1 All further references are to the Public Resources Code,
section 21000, et seq. unless otherwise stated.
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under the “common sense” 2 exemption because the removal of a
non-historic statue will not have a significant effect on the
environment. Third, the bronze statue be relocated to the San
Buenaventura Mission.
Petition for Writ of Mandate and Ex Parte Application
In July 2020, the Coalition for Historical Integrity
(Coalition) petitioned the trial court for a writ of mandate and
injunctive relief. The petition stated four causes of action. First,
removal of the landmark designation was not supported by
substantial evidence. Second, removal of the statue violates the
City’s Specific Plan. Third, removal of the statue violates CEQA.
Fourth, removal of the statue violates state and municipal law.
On the same day the petition for writ of mandate was filed,
the Coalition filed an ex parte application for a temporary
restraining order to halt removal of the statue. The City filed
opposing documents.
Ruling
The trial court denied the Coalition’s petition for a writ of
mandate and preliminary injunction, as well as their ex parte
application for temporary restraining order to prevent removal of
the statue. Thereafter, the City removed the statue.
2 CEQA Guidelines, California Code of regulations, title 14,
section 15061(b)(3), states the common sense exemption as
follows: “The activity is covered by the common sense exemption
that CEQA applies only to projects which have the potential for
causing a significant effect on the environment. Where it can be
seen with certainty that there is no possibility that the activity in
question may have a significant effect on the environment, the
activity is not subject to CEQA.”
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DISCUSSION
I. CEQA
The Coalition contends that removal of the bronze statue
requires review under CEQA.
The Coalition points out that the environment CEQA
protects includes “objects of historic or aesthetic significance.”
(§ 21060.5.) Section 21084.1 provides in part: “Historical
resources included in a local register of historical resources, as
defined in subdivision (k) of Section 5020.1, . . . are presumed to
be historically or culturally significant for purposes of this
section, unless the preponderance of the evidence demonstrates
that the resource is not historically or culturally significant.”
The Coalition argues that the bronze statue qualifies as
presumptively historical. It points to section 5020.1, subdivision
(k), defining a “local register of historical resources” as a “list of
properties officially designated or recognized as historically
significant by a local government pursuant to a local ordinance or
resolution.” The Coalition argues that the bronze statue was so
designated by the City in a 1974 resolution.
The City contends that only the original concrete statue
was designated as a landmark. It asserts that the bronze
replacement was never so dedicated and is not entitled to
presumptive historical status.
But even if the statue is presumptively historical, section
21084.1 expressly provides that the presumption may be rebutted
by a preponderance of the evidence. Based on the 2020 HRG
report, the City found that the statue is not historically
significant. We must uphold the finding if it is supported by
substantial evidence. (Friends of Willow Glen Trestle v. City of
San Jose (2016) 2 Cal.App.5th 457, 467-468.)
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The Coalition argues that the 2020 HRG report does not
constitute substantial evidence. The Coalition asserts that the
HRG report is anonymous, that it does not provide participant
testimony, and that there is no evidence the author of the report
is qualified as an expert.
But municipal agencies can properly consider and base
decisions on evidence that would not be admissible in a court of
law. (Floresta, Inc. v. The City Council of the City of San Leandro
(1961) 190 Cal.App.2d 599, 608-609.) Moreover, the Coalition
itself relies on a 2007 report by HRG.
Here the 2020 HRG report discusses the history of the
statue and the criteria for evaluating its historical significance.
Among other matters, the report points out that the bronze
replica statue does not meet the 40-year-old threshold required
for local designation as a historical landmark. The report
constitutes substantial evidence.
It is true that for most of the statue’s history the City
viewed the original concrete statue and its bronze replacement as
one. Recently however, the City viewed the statues as two
separate statues. The Coalition cites no authority that prevents
the City from changing its view. It is beyond question that the
original concrete statue and its bronze replacement, are in fact
two different statues.
The Coalition argues that section 21084.1 requires the City
to find that the statue is “no longer” culturally or historically
significant. But there is no reason why the presumption cannot
be rebutted by a finding that the statue was never culturally or
historically significant. Whether one agrees or not with this
finding, that is what the City found. Having found the bronze
6
statue now has no historical significance, it follows that the
CEQA common sense exemption applies.
II. Specific Plan
The Coalition contends that removal of the bronze statue
violates the City’s Specific Plan.
The City’s Specific Plan lists the bronze statue as among
the City’s historic resources. The Coalition argues that the
Specific Plan provides for the preservation of historical resources.
It does in part. But section 5.20.020 of the Specific Plan also
allows for the demolition of a historical resource. The Specific
Plan provides that the demolition of a historical resource may
require review by the Historic Preservation Committee, the
committee that approved removal of the statue. Nothing in the
Specific Plan prohibits the destruction or removal of a statue that
is listed as a historical resource upon a finding that on
reexamination it, in fact, never had historical value.
III. The City’s Municipal Code
The Coalition contends that the City failed to follow the
procedure set forth in the municipal code for removing landmark
status from the statue. (See San Buenaventura Mun. Code,
§§ 24.455.510, 24.455.520.) But the City found that the bronze
statue was never a landmark. That finding is supported by
substantial evidence. The code provisions for removing landmark
status do not apply.
IV. Bias and Prejudgment
The Coalition contends that removal of the statue was a
quasi-judicial act, and that City council members unlawfully
acted with bias and prejudice.
The City contends the decision to remove the statue is
quasi-legislative. Council members acting in a quasi-judicial
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capacity must be unbiased and cannot prejudice the matter.
(Petrovich Development Co., LLC v. City of Sacramento (2020) 48
Cal.App.5th 963, 973 (Petrovich).) Council members acting in a
quasi-legislative capacity are not so constrained. (City of Santa
Cruz v. Superior Court (1995) 40 Cal.App.4th 1146, 1156-1157.)
The only authority cited by the Coalition in support of its
contention that the City acted in a quasi-judicial capacity is
Petrovich, supra, 38 Cal.App.5th at page 972. But Petrovich
involves the denial of a conditional use permit. A conditional use
permit may only be granted under the criteria established by a
zoning ordinance. (Gov. Code, § 65901, subd. (a).) Thus, the
grant or denial of the permit involves questions of fact as to
whether the criteria have been met. The grant or denial is quasi-
judicial.
The City decided to remove the statue because it was
offensive to some members of the community. The City was not
engaged in finding facts under criteria established by a statute or
ordinance. It was making policy. The City’s decision to remove
the statue was quasi-legislative. (See Oceanside Marina Towers
Assn. v. Oceanside Community Development Com. (1986) 187
Cal.App.3d 735, 745 [decisions of public entities on the location of
public improvements are legislative].)
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DISPOSITION
The judgment is affirmed. Costs are awarded to the
respondent.
GILBERT, P. J.
We concur:
YEGAN, J.
BALTODANO, J.
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Ronda J. Mckaig, Judge
Superior Court County of Ventura
______________________________
Mansueto Law Office and Daniel Mansueto; Alti Law Firm
and Michael J. Alti for Plaintiff and Appellant.
Rutan & Tucker and Peter J. Howell for Defendant and
Respondent.
Filed 6/8/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
COALITION FOR 2d Civ. No. B319536
HISTORICAL INTEGRITY, (Super. Ct. No. 56-2020-
00543397-CU-PT-VTA)
Plaintiff and Appellant, (Ventura County)
v. ORDER CERTIFYING
OPINION FOR PUBLICATION
CITY OF SAN
BUENAVENTURA, [NO CHANGE IN
JUDGMENT]
Defendant and Respondent.
THE COURT:
The opinion in the above-entitled matter filed on May 12,
2023, was not certified for publication in the Official Reports. For
good cause it now appears that the opinion should be published in
the Official Reports and it is so ordered.
There is no change in judgment.
____________________________________________________________
GILBERT, P. J. YEGAN, J. BALTODANO, J.