Reprinted with the permission of LexisNexis.
122 Cal. App. 4th 1095; 19 Cal. Rptr. 3d 469; 2004 Cal. App. LEXIS 1634; 2004 Cal. Daily Op. Service 8997;
2004 Daily Journal DAR 12237
ARCHITECTURAL HERITAGE ASSOCIATION,
et al, Plaintiffs and Appellants,
COUNTY OF MONTEREY, et al., Defendants and
COURT OF APPEAL OF CALIFORNIA,
August 31, 2004
Brandt-Hawley Law Group, Susan
Brandt-Hawley and Paige J. Swartley for Plaintiffs and Appellants.
Carolyn Douthat for California Preservation
Foundation as Amicus Curiae on behalf of Plaintiffs and Appellants .
Charles J. McKee, County Counsel, and Efren N. Iglesia, Deputy County Counsel, for Defendants and
McADAMS, J.--This appeal presents a challenge to the adoption of the mitigated
negative declaration under CEQA, a California Environmental Quality Act. n1
Under the standard that governs our review here, we conclude that the challenge
has merit. We therefore reverse the judgment.
This dispute involves Monterey County's Old Jail, located in Salinas, California. The County of Monterey intends to demolish the Old Jail. Acting through its Board of
Supervisors, the County decided to proceed under CEQA by way of a mitigated
negative declaration. Plaintiffs Architectural Heritage Association and Mark
Norris challenge that decision. According to plaintiffs, there is evidence
supporting a fair argument that the planned demolition will result in loss of
the jail's historic value and that the proposed mitigation measures are
inadequate. Plaintiffs have pressed their claims both administratively and
To provide perspective for the procedural
and substantive aspects of this dispute, we begin with an overview of CEQA.
CEQA embodies our state's policy that
"the long-term protection of the environment ... shall be the guiding
criterion in public decisions." (§ 21001, subd. (d). See Davidon Homes
v. City of San Jose (1997) 54 Cal.App.4th 106, 112 [62 Cal. Rptr. 2d 612].)
As this court recently noted, "the overriding purpose of CEQA is to ensure
that agencies regulating activities that may affect the quality of the
environment give primary consideration to preventing environmental damage.
[Citation.]" ( Save Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99, 117 [104 Cal. Rptr. 2d 326].)
As an aid to carrying out the statute, the State Resources Agency has issued a
set of regulations, called Guidelines for the California Environmental Quality
Act (Guidelines). n2 Together, CEQA and the Guidelines protect a variety of
environmental values. Historic resources are among them. (See § 21084.1;
Guidelines, § 15064.5; Friends of Sierra Madre v. City of Sierra Madre (2001) 25 Cal.4th 165, 183-184, 185
[105 Cal. Rptr. 2d 214, 19 P.3d 567].)
Consistent with California's strong environmental policy, the statute and regulations "have
established a three-tiered process to ensure that public agencies inform their
decisions with environmental considerations." ( Davidon Homes v. City
of San Jose, supra, 54 Cal.App.4th at p. 112. See also Friends of Sierra
Madre v. City of Sierra Madre, supra, 25 Cal.4th at p. 185; Gentry v.
City of Murrieta (1995) 36 Cal.App.4th 1359, 1371 [43 Cal. Rptr. 2d 170].)
"The first tier is jurisdictional,
requiring that an agency conduct a preliminary review in order to determine
whether CEQA applies to a proposed activity. (Guidelines, §§ 15060,
15061.)" ( Davidon Homes v. City of San Jose, supra, 54 Cal.App.4th
at p. 112.) "If the agency finds the project is exempt from CEQA under any
of the stated exemptions, no further environmental review is necessary." (
Id. at p. 113.) "If, however, the project does not fall within any
exemption, the agency must proceed with the second tier and conduct an initial
study. (Guidelines, § 15063.)" (Ibid.)
The second tier of the process, the initial
study, serves several purposes. (Guidelines, § 15063, subd. (c).) One purpose
is to inform the choice between a negative declaration and an environmental
impact report (EIR). (Id., subd. (c) (1); Leonoff v. Monterey County Bd. of Supervisors (1990) 222 Cal. App. 3d 1337,
1346 [272 Cal. Rptr. 372].) Another of the initial study's purposes is to eliminate
unnecessary environmental impact reports. (Guidelines, § 15063, subd. (c)(7).)
"CEQA excuses the preparation of an EIR and allows the use of a negative
declaration when an initial study shows that there is no substantial evidence
that the project may have a significant effect on the environment." ( San Bernardino Valley Audubon Society v. Metropolitan Water Dist. (1999) 71 Cal.App.4th 382, 389-390 [83 Cal. Rptr. 2d 836], citing
Guidelines, § 15070. See also § 21064; § 21080, subd. (c); Leonoff v. Monterey County Bd. of Supervisors, supra, 222 Cal. App. 3d at p.
In certain situations where a
straightforward negative declaration is not appropriate, the agency may permit
use of a mitigated negative declaration (MND). "If the initial study
identifies potentially significant effects on the environment but revisions in
the project plans 'would avoid the effects or mitigate the effects to a point
where clearly no significant effect on the environment would occur' and there
is no substantial evidence that the project as revised may have a significant
effect on the environment, a mitigated negative declaration may be used."
( San Bernardino Valley Audubon Society v. Metropolitan Water Dist., supra,
71 Cal.App.4th at p. 390, quoting § 21064.5. See also, e.g., Citizens' Com.
to Save Our Village v. City of Claremont (1995) 37 Cal.App.4th 1157, 1167
[44 Cal. Rptr. 2d 288]; Guidelines, § 15064, subd. (f)(2).)
If the project does not qualify for a
negative declaration of either type, "the third step in the process is to
prepare a full environmental impact report ... ." ( Davidon Homes v.
City of San Jose, supra, 54 Cal.App.4th at p. 113, citing §§ 21100 and
21151, and Guidelines, §§ 15063, subd. (b)(1), and 15080; Gentry v. City of
Murrieta, supra, 36 Cal.App.4th at p. 1372.)
The California Supreme Court has
"repeatedly recognized that the EIR is the 'heart of CEQA.'
[Citations.]" ( Laurel Heights Improvement Assn. v. Regents of
University of California (1993) 6 Cal.4th 1112, 1123 [26 Cal. Rptr. 2d 231,
864 P.2d 502].) As the court observed some three decades ago, "since the
preparation of an EIR is the key to environmental protection under CEQA, accomplishment of
the high objectives of that act requires the preparation of an EIR whenever it can be fairly argued on
the basis of substantial evidence that the project may have significant
environmental impact." ( No Oil, Inc. v. City of Los Angeles (1974)
13 Cal.3d 68, 75 [118 Cal. Rptr. 34, 529 P.2d 66].) The court stressed
"the importance of preparing an EIR in cases ... in which the
determination of a project's environmental effect turns upon the resolution of
controverted issues of fact and forms the subject of intense public
concern." (Ibid.) Other cases have since confirmed the statutory
preference for resolving doubts in favor of an EIR. (See, e.g., Santa Teresa
Citizen Action Group v. City of San Jose (2003) 114 Cal.App.4th 689, 703 [7
Cal. Rptr. 3d 868]; League for Protection of Oakland's etc. Historic
Resources v. City of Oakland (1997) 52 Cal.App.4th 896, 905 [60 Cal. Rptr. 2d 821] (City
With that overview of CEQA in mind, we now
turn to the facts underlying this proceeding.
FACTUAL AND PROCEDURAL
At the heart of this dispute is the
County's Old Jail, built in 1931 in the Gothic Revival style. The three-story
structure was designed by Reed & Corlett, an architectural and engineering
firm "responsible for numerous buildings in the San Francisco Bay Area
from 1912 to 1933, many of which are still standing." The jail is located
directly adjacent to the Monterey County Courthouse at 142 West Alisal Street in Salinas. The building is approximately 40 feet tall, with some 19,000 square
feet of floor space. It consists of two primary wings, which are separated by a
secured passageway. The original blueprints for the jail provided for a number
of uses, some quite outmoded under current penal practices. The plans thus
included a boys' department, vagrants' quarters, an insane cell, a padded cell,
a delousing room, a darkroom, and a room for liquor storage. Some of the jail
cells "contain detailed and artistic graffiti done by prisoners."
In December 1970, C [eacute] sar Ch
[aacute] vez was incarcerated in the Old Jail for approximately two weeks, for
refusing to obey a court order to halt the United Farm Workers' lettuce
boycott. His incarceration drew international attention, prompted visits from
Coretta Scott King and Ethel Kennedy, and galvanized the burgeoning farm-worker
By the 1980's, the County had ceased using
the structure as a jail. Since then, it has been used for records storage and
as a temporary holding facility for prisoners appearing in court.
In December 1999, by unanimous vote of its
Board of Supervisors, the County directed its staff "to take necessary
actions to provide for demolition of [the] old jail facility in Salinas."
Various assessments of the jail preceded
and followed the County's decision to demolish the structure.
Assessments of the Old Jail
1. Physical Condition
Several reports commissioned by the County
evaluated the jail's physical condition. A 1998 report noted the presence of
asbestos and lead-based paint at the Old Jail. In August 2000, a property
condition report on the Old Jail was prepared by Professional Service
Industries, Inc. (PSI). Among other things, PSI's property condition report
concluded that the roofs were in poor condition and that the building did not
comply with the Americans with Disabilities Act. In September 2000, an indoor
air quality evaluation revealed high levels of mold spores and lead dust in
most locations in the building.
2. Historic Status
The County also commissioned an assessment
of the Old Jail as a cultural and historic resource. Dr. Robert Cartier of
Archaeological Resource Management undertook that assessment, which was
completed in July 2000. Cartier holds baccalaureate, graduate, and doctoral
degrees in anthropology, and he has more than two decades of full-time
experience in researching, interpreting, and writing about cultural and
historical resources. In a section of the report detailing the jail's factual
history, Cartier noted that it "was visited by some notable historical
figures" and he specifically mentioned the 1970 jailing of C [eacute] sar
Ch [aacute] vez.
In his evaluation of the jail's cultural
significance, Cartier stated: "A cultural resource is considered
'significant' if it qualifies as eligible for listing in the California
Register of Historic Resources (CRHR). Properties that are eligible for listing
in the CRHR must meet one or more" of four criteria, which he set forth in
the report. n3 The second factor (criterion 2) is particularly relevant here:
"Association with the lives of persons important to local, California, or national history." Cartier observed that the Old Jail "is
not currently listed on the California Register of Historic Resources. The jail
structure does appear, however, to qualify as potentially eligible for listing
on the CRHR under criterion 2 ... ."
The Cartier report also set forth the four
parallel criteria for listing on the National Register of Historic Places
(NRHP). n4 Again, the second criterion is most pertinent here. That factor,
criterion b, applies to places "associated with the lives of persons
significant in our past." As with the state registry, Cartier observed,
the Old Jail "is not currently listed on the National Register of Historic
Places. However, this structure does appear to qualify as potentially eligible
for listing on the National Register under criterion B ... ."
Near the end of his report, Cartier stated:
"Due to the historic significance of the structure, several alternative
mitigations are outlined below." The listed mitigations include: (1)
retention and adaptation of the structure, though that "may be impractical
due to its age and condition;" (2) photographic documentation to historic
survey standards; n5 (3) preparation of an historic monograph; (4) reuse of
architectural elements from the building; and (5) maintaining the architectural
blueprints at the local historical society.
In September 2000, County staff submitted the
reports to the County Board of Supervisors.
Administrative Proceedings Under CEQA
In November 2000, the County's Office of
Capital Projects applied for a demolition permit for the Old Jail. Application
was made to the County's Planning and Building Inspection Department
(Department). Although the Department's director believed that issuance of the
demolition permit was exempt under CEQA, the Department nevertheless reviewed
and processed the application under the Act "out of an abundance of caution
and in order to be responsive to concerns that the jail is an historic
1. The Initial Study
On June 1, 2001, an initial study was completed.
The initial study identified several
environmental factors potentially affected by demolition of the Old Jail,
including cultural resources. With respect to that aspect, the research
underlying the initial study "focused on the structure's characteristics
and its contribution to the historic fabric of the City of Salinas and the County of Monterey." The initial study noted Cartier's conclusion that the Old Jail
"qualifies as potentially eligible for listing on both the CRHR and the
National Register." The initial study then concluded: "Consequently,
the old jailhouse is a significant historical resource as defined by CEQA
[Guidelines] Section 15064.5."
The initial study stated: "Without
appropriate and extensive mitigation, the proposed demolition will cause a
substantial adverse change to an historic resource." But it also noted
that "the architectural integrity of the resource has been diminished by
the deteriorated physical condition of the structure and the hazardous
materials that are found extensively within" its components. Based on
those factors, the initial study stated, "renovation or reuse of the structure
is not feasible. However, the demolition of the building represents an
incremental loss of both the architectural style of 1930s jail construction and
an historic resource potentially eligible for listing on both the California
Register of Historic Resources and the National Register of Historic Places.
Without appropriate mitigation, the demolition would have impacts that are
cumulatively considerable when viewed in connection with the effects of past
demolitions of architecturally significant and historically significant
structures within the state. However, extensive mitigation measures have been
developed to reduce these potential impacts to a less than significant
level." To a large extent, the listed mitigations mirror those in Cartier's
report. They include photographic documentation to historic survey standards,
production of an historic monograph, reuse or duplication of architectural
elements from the building, and filing a complete set of architectural
blueprints at the local historical society.
Ultimately, the initial study concluded,
with the proposed mitigations, the adverse environmental effects on cultural
resources from demolition of the Old Jail will be less than significant. Based
on that conclusion, the initial study called for preparation of a mitigated
2. The Mitigated Negative Declaration
On June 14, 2001, the County gave notice of its intent to adopt a mitigated negative
Public comments were received in response.
One was from the County's Historic Resources Review Board (Historic Board). The
members of the Historic Board were "unanimous in their opinion that the
draft Initial Study is insufficient upon which to address mitigation measures
and recommend the County undertake a more extensive [EIR]." A memorandum from the
Historic Board's jail subcommittee likewise recommended an EIR. In addition, Historic Board member
Dorothy Steele Laage, acting in her personal capacity as a "concerned
citizen of Monterey County," wrote in support of a full EIR. The comment period on the
mitigated negative declaration ended on July 16, 2001.
A public hearing followed nearly a year
later. It began on June 19, 2002. Those opposed to issuance of the demolition permit argued for
preparation of an EIR, based on claims that the Old Jail is a cultural and historic resource.
The hearing was continued to permit completion of an addendum to the historic
monograph of the Old Jail, which had been prepared for the County by Carey
& Company. At the continued hearing, held on July 3, 2002, the Department received additional testimony, further staff
recommendations, and the third addendum to Carey & Company's monograph.
At the conclusion of the hearing, the
Department adopted the mitigated negative declaration, together with a
mitigation monitoring and reporting program, and it issued the demolition
permit for the Old Jail. In order to mitigate the demolition's impact on the
jail's value as an historic resource, the following conditions were imposed:
photographic documentation to HABS standards; preparation of an historic
monograph, including detailed descriptions of the jail's construction, the
social environment in which it was built, its association with local, state,
and national history, and jail culture; reuse or duplication of architectural
elements from the building, with certain salvage details called out; and
maintaining a complete set of the architectural and engineering blueprints at
various agencies, including the local historical society.
3. Plaintiffs' Administrative Appeal
On July 12, 2002, plaintiff Architectural Heritage Association filed an appeal of the
decision with the County's Board of Supervisors. As one of the grounds for its
administrative appeal, Architectural Heritage Association argued that the mitigated
negative declaration did not reduce the environmental impacts of demolishing
the Old Jail to a level of insignificance.
The appeal was heard on July 30, 2002. At the conclusion of that hearing, County's Board of Supervisors
denied the appeal and affirmed the Department's decision adopting the mitigated
On August 27, 2002, plaintiffs Architectural Heritage Association and Mark Edwin Norris
filed a petition for writ of mandate, naming as respondents the County of Monterey and its Board of Supervisors. The petition asserted that the County's
decision to certify the MND constituted a violation of CEQA.
Both sides filed briefs with the trial court in advance of the hearing on the
petition, which was set for May 2003. Both sides also proffered additional
evidence. The County requested the court to take judicial notice of federal
regulations and bulletins concerning standards for inclusion on the National
Register of Historic Places. Plaintiffs submitted a declaration from their
attorney, which reported on a public meeting of the California State Historical
Resources Commission held in February 2003 to consider a determination that the
Old Jail was eligible for listing on the National Register of Historic Places.
The declaration included the attorney's unofficial transcription of a portion
of the hearing. The County objected to consideration of that evidence, urging
"(1) it is not relevant, (2) it lacks the requisite foundational showing
of relevancy and for an exception to the general rule against admission of
extra-record evidence, (3) it contains objectionable hearsay, and (4) it
pertains to another agency's proceedings which are as yet not completed and not
probative of the issues in the present proceeding." In their response to
the County's objections, plaintiffs submitted the official minutes of the
February 2003 hearing, together with a certified transcript of the hearing, and
they requested "judicial notice or record augmentation" as to each.
On May 1, 2003, the petition for writ of mandate was heard in Superior Court. The
court first received the administrative record, which consists of five volumes.
The court next granted the County's request for judicial notice of the federal
regulations and bulletins. The court then took up plaintiffs' request for
judicial notice of the minutes and transcript of the February 2003 meeting, at
which the state Historical Resources Commission unanimously determined that the
Old Jail met register criteria and was eligible for listing on both the
National Register of Historic Places and the California Register of Historical
Resources. After discussion with both sides, the trial judge announced: "I
will take judicial notice as requested." The court then entertained argument
on the petition. At the conclusion of the hearing, the court took the matter
On May 14, 2003, the court issued its ruling denying the writ petition. In its written
decision, the court reviewed the evidence and the parties' general arguments.
It then set forth the standard of review, stating: "The law requires that
where substantial evidence supports a 'fair argument' that a project may have a
significant effect on the environment, an EIR must be prepared, unless adopted
mitigation measures can reduce the environmental impacts to a level of
insignificance." The court then analyzed plaintiffs' claim "that the
administrative record contains material from which a fair argument can be made
that the jail should be deemed an historic structure." It stated:
"The importance of C [eacute] sar Ch [aacute] vez and the events
surrounding his leadership in the farm labor movement are historic. Whether the
event of his jailing is sufficient to make the entire building itself historic
is another question." The court went on to say: "C [eacute] sar Ch
[aacute] vez leaves an historic legacy because of his many years of toil and
leadership on behalf of the farm labor movement. His two week connection with
the jail represents just one segment of a lifetime effort. The real question is
whether the mitigation measures adopted by [the County] will appropriately
preserve the historic attributes of that two week period of C [eacute] sar Ch
[aacute] vez's life." The court concluded that they would. It said: "The
record supports the finding that, to the extent the jail is seen to have
historic attributes, the mitigation efforts undertaken have reduced those
attributes to less than significant levels." The court therefore denied
the petition for writ of mandate.
Judgment was entered the following month.
Plaintiffs moved for a new trial, arguing that the court had applied the wrong
standard of review. In August 2003, the court denied that motion.
This appeal followed.
Plaintiffs assert (1) demolition of the Old
Jail is subject to CEQA; (2) the evidence supports a fair argument that
demolition may have a significant impact on an historic resource and that the
impact has not been adequately mitigated; and (3) the County impermissibly
segmented the project. Appearing as amicus curiae, the California Preservation
Foundation supports plaintiffs' bid for a full environmental impact report.
The County counters (1) the record does not
contain substantial evidence supporting a fair argument that the Old Jail is
historic; (2) even if the Old Jail is an historic resource, the mitigation
measures are adequate; and (3) plaintiffs failed to raise and exhaust their
segmentation claim, which lacks merit in any event.
As distilled by the parties' briefs, the
substantive issues presented are (1) whether the Old Jail is an historic
resource, (2) whether its demolition will have a significant environmental
impact, and (3) whether the proposed mitigation measures are adequate to reduce
that impact to insignificance. The briefs also discuss segmentation, but our
resolution of the other questions obviates the need to analyze that issue.
Before addressing the substantive questions
presented, we first discuss three threshold issues that frame and govern our
I. Threshold Issues
A. Standard of Review: the "Fair
Judicial review of an agency's efforts to
comply with CEQA " ' "shall extend only to whether there was a
prejudicial abuse of discretion. Abuse of discretion is established if the
agency has not proceeded in a manner required by law or if the determination is
not supported by substantial evidence." ' " ( City of Oakland,
supra, 52 Cal.App.4th at pp. 903-904.) When there is substantial evidence
supporting a fair argument that the project will significantly impact the
environment, an agency abuses its discretion in failing to require an EIR. ( Id. at p. 905; Gentry
v. City of Murrieta, supra, 36 Cal.App.4th at p. 1412.)
Thus, in reviewing the adoption of a negative
declaration, the concern of both trial courts and appellate courts "is
whether there is substantial evidence in the record supporting a fair argument
of significant environmental impact." ( Leonoff v. Monterey County Bd.
of Supervisors, supra, 222 Cal. App. 3d at p.
1348. See Laurel Heights Improvement Assn. v. Regents of University of California, supra, 6 Cal.4th at p. 1123; Guidelines, §
15064, subd. (f)(1).) In this case, the fair argument standard applies to all
three substantive issues--historicity, impact, and mitigation--since they all
bear on the question of whether an EIR is required. (See City of
Oakland, supra, 52 Cal.App.4th at p. 905.) "Whether a fair argument
can be made is to be determined by examining the entire record." ( Leonoff
v. Monterey County Bd. of Supervisors, supra, 222 Cal. App. 3d at p. 1348.)
The sufficiency of the evidence to support a fair argument presents a question
of law. ( City of Oakland, supra, 52 Cal.App.4th at p. 905.)
" 'In the CEQA context, substantial
evidence is "enough relevant information and reasonable inferences from
this information that a fair argument can be made to support a conclusion, even
though other conclusions might also be reached." ' " ( Leonoff v.
Monterey County Bd. of Supervisors, supra, 222 Cal. App. 3d at p. 1348.)
"Substantial evidence shall include facts, reasonable assumptions
predicated upon facts, and expert opinion supported by facts." (§ 21082.2,
subd. (c); Guidelines, § 15384, subd. (b).) "If such evidence is found, it
cannot be overcome by substantial evidence to the contrary. [Citations.]"
( Leonoff v. Monterey County Bd. of Supervisors, supra, 222 Cal. App. 3d at p.
1348. Accord Gentry v. City of Murrieta, supra, 36 Cal.App.4th at p. 1400 [43
Cal.Rptr.2d 170]. And see Guidelines, § 15384, subd. (a). But see Citizens'
Com. to Save Our Village v. City of Claremont, supra, 37 Cal.App.4th at p. 1168.)
The "fair argument" test is very
different from the usual measure of judicial deference given to agency
decisions. (Cf., e.g., Fukuda v. City of Angels (1999) 20 Cal.4th 805,
817, 824 [85 Cal. Rptr. 2d 696, 977 P.2d 693] [in administrative mandamus
action, the trial court exercises its independent judgment but nevertheless
"must afford a strong presumption of correctness" to administrative
findings; appellate court reviews for substantial evidence].) The fair argument
test has limited application. It "was derived from an interpretation of
the language of, and policies underlying, section 21151 itself. For this
reason, the 'fair argument' test has been applied only to the decision
whether to prepare an original EIR or a negative declaration.
[Citations.]" ( Laurel Heights Improvement Assn. v. Regents of
University of California, supra, 6 Cal.4th at p. 1135.)
"This test establishes a low threshold
for initial preparation of an EIR, which reflects a preference for
resolving doubts in favor of environmental review. [Citation.]" ( Santa
Teresa Citizen Action Group v. City of San Jose, supra, 114 Cal.App.4th at
B. Scope of Review
Judicial review for evidence of a fair
argument is undertaken "by examining the entire record." ( Leonoff
v. Monterey County Bd. of Supervisors, supra, 222 Cal. App. 3d at p. 1348.)
In this context, that means the entire administrative record. ( Western
States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 571 [38 Cal.
Rptr. 2d 139, 888 P.2d 1268]; Citizens' Com. to Save Our Village v. City of
Claremont, supra, 37 Cal.App.4th at p. 1169. See generally Kostka &
Zischke, Practice Under the California Environmental Quality Act (Cont.Ed.Bar
3d ed. 2003) §§ 23.45-23.55, pp. 963-974.)
The appellate record in this case contains
material beyond that included in the administrative record. First, the trial
court received extra-record evidence. At the hearing on the petition for writ
of mandate, the trial court admitted evidence that was not before the County
when it adopted the MND. Specifically, the court received
evidence that the state Historic Resources Commission had determined that the
Old Jail was eligible for inclusion on the National Register of Historic
Places. The record below thus includes evidence beyond that contained in the
administrative record. Similarly, on appeal, both parties have requested us to
take judicial notice of evidence of subsequent events involving that
determination. n6 In addition, amicus curiae has filed an appellate brief with
exhibits containing extra-record evidence. n7
Notwithstanding the existence of additional
evidence in the appellate record, review is properly limited to that contained
in the administrative record, as we advised the parties prior to oral argument.
As the California Supreme Court recently recognized, in various "parts of CEQA the
Legislature has expressly stated that the existence of substantial evidence depends
solely on the record before the administrative agency. For example, in
considering whether an environmental impact report must be prepared, the lead
agency must determine whether there is 'substantial evidence in light of the
whole record' before indicating the project may have a 'significant effect
on the environment.' (Pub. Resources Code, §§ 21080, subds. (c) & (d),
21082.2, subds. (a) & (d), italics added.)" ( Western States
Petroleum Assn. v. Superior Court, supra, 9 Cal.4th at p. 571.) (5) The
provision at issue here is one that limits review to the administrative record.
The statute defining "mitigated negative declaration" refers to the
absence of "substantial evidence in light of the whole record before
the public agency that the project, as revised, may have a significant
effect on the environment." (§ 21064.5, italics added. See Citizens'
Com. to Save Our Village v. City of Claremont, supra, 37 Cal.App.4th at p. 1169.)
In sum, we limit our review to evidence in
the administrative record. "Although a reviewing court may take judicial
notice of matters not before the trial court," as we did here, "the
reviewing court need not give effect to such evidence." ( Doers v.
Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184, fn. 1 [151 Cal. Rptr. 837, 588
P.2d 1261]. See also Windham at Carmel Mountain Ranch Assn. v. Superior
Court (2003) 109 Cal.App.4th 1162, 1173, fn. 11 [135 Cal. Rptr. 2d 834].)
It would be improper to give effect to extra-record evidence in this case. We
therefore disregard all evidence of events post-dating the administrative
proceedings, as contained in the parties' requests for judicial notice, both
here and below, and in the exhibits to the brief of amicus curiae.
C. Burden of Proof
Plaintiffs bear the burden of proof with
respect to the three substantive questions we address here. With respect to the
first two issues: "The burden is on the petitioner to demonstrate by
citation to the record the existence of substantial evidence supporting a fair
argument of significant environmental impact. [Citations.]" ( City of
Oakland, supra, 52 Cal.App.4th at p. 904.) Plaintiffs thus must cite
evidence in the record supporting a fair argument of (1) historic status and
(2) environmental impact. (8) With respect to the third issue: "Upon
the issuance of an MND, the project opponent must
demonstrate by substantial evidence that the proposed mitigation measures are
inadequate and that the project as revised and/or mitigated may have a
significant adverse effect on the environment." ( Citizens' Com. to
Save Our Village v. City of Claremont, supra, 37 Cal.App.4th at p. 1167. Accord San Bernardino Valley Audubon Society v. Metropolitan Water Dist., supra, 71 Cal.App.4th at p. 390.)
Summarizing the three threshold issues, (A)
we apply the fair argument standard to all three substantive issues
presented--historicity, impact, and mitigation; (B) we limit our review to the
administrative record; and (C) we consider whether plaintiffs have carried
their burden. With the foregoing principles in mind, we turn to the substantive
issues presented by this appeal.
As we explain below, we conclude that
plaintiffs have carried their burden of showing substantial evidence in the
administrative record supporting a fair argument (A) that the Old Jail is an
historic resource, (B) that its demolition will have a significant
environmental impact, and (C) that the proposed mitigation measures are
inadequate to reduce that impact to insignificance. In light of those
conclusions, we do not reach the question of segmentation.
A. Historic Status
According to plaintiffs, there is adequate
evidence supporting a fair argument of historicity in the initial study alone.
But they also cite other evidence, including the Cartier report, the Historic
Board recommendation for a full EIR, and comments by speakers at the
public hearings. The County discounts the substantiality of the cited evidence
to support plaintiffs' historic status claim.
Our examination of the record persuades us
that the "fair argument" test is satisfied here.
1. The Initial Study
In the words of the initial study,
"the old jailhouse is a significant historical resource as defined by CEQA
[Guidelines] Section 15064.5."
The County attempts to discount that
conclusion. It urges that "the sole basis" for the determination
"is the same portion of the Cartier Report that places a heavy reliance on
the Jail's association with C [eacute] sar Ch [aacute] vez as a ground for
deeming the Jail a historic resource." According to the County, "that
part of the Cartier Report has very little evidentiary value" because of
"its failure to discuss the federal criteria applicable to historic
resources that may have gained significance within the last 50 years ...
." On that basis, the County rejects the notion that the initial study
constitutes substantial evidence supporting a fair argument that the Old Jail
is an historic resource.
We are not persuaded by the County's
attempts to minimize the evidentiary force of the initial study. Under the low
threshold that governs our review, the initial study incorporates " '
"enough relevant information and reasonable inferences from this
information that a fair argument can be made" ' " that the Old Jail
is an historic resource. ( Leonoff v. Monterey County Bd. of Supervisors,
supra, 222 Cal. App. 3d at p. 1348.) Here, that information includes the
initial study's nod to "the architectural style of 1930s jail
construction" as well as its adoption of Cartier's conclusion that the
structure is "potentially eligible" for listing on both the NRHP and
the CRHR based on its social or cultural significance. As the initial study
confirms: "The old jail is known to be associated with important persons
in local, regional, or national history, including C [eacute] sar Ch [aacute]
vez who was incarcerated at the jail between December 10-24, 1970, for refusing to obey a court order to stop a lettuce boycott. Mr. Ch
[aacute] vez was a major contributor to the Mexican-American community in the Monterey and Santa Clara Valley areas. In addition, Ethel Kennedy, the widow of Robert Kennedy, and
Coretta Scott King, the widow of Dr. Martin Luther King, Jr., reportedly
visited Ch [aacute] vez during his incarceration in the jailhouse." Based
on those observations alone, there is a fair argument that the Old Jail is
Moreover, our determination that there is
substantial evidence supporting a fair argument of the jail's historic status
is bolstered by an examination of the administrative record as a whole. We
therefore discuss some of the other evidence supporting plaintiffs' claim of
2. The Cartier Report
Cartier concluded that the jail "does
appear ... to qualify as potentially eligible for listing" on the
California Register of Historic Resources and on the National Register of
Historic Places under the second criterion of each. Cartier thus explicitly
acknowledged the "historic significance of the structure ... ."
As noted above, the County challenges the
evidentiary value of Cartier's assessment of NRHP eligibility to the extent it
is based on association with C [eacute] sar Ch [aacute] vez. As before,
however, we find that challenge unavailing. Eligibility for inclusion on the
National Register is not determinative. The governing statute "does not
demand formal listing of a resource in a national, state or local register as a
prerequisite to 'historical' status. The statutory language is more expansive
and flexible." ( City of Oakland, supra, 52 Cal.App.4th at p. 907, citing §§
21084.1 and 5020.1. See also Guidelines, § 15064.5, subd. (a)(4).)
The County also asserts: "From the
standpoint of architectural or physical attributes, ... the
inescapable conclusion of the Cartier Report is that the Jail is not a historic
resource." As the County correctly observes, Cartier did opine that the
jail "does not display particularly rare or unique architecture" and
that it "has a diminished architectural integrity" because of its
physical deterioration. But those statements in the Cartier report do not rob
it of its evidentiary value with respect to the cultural significance of
the Old Jail.
In any event, other evidence in the
administrative record supports a fair argument that the jail has architectural
as well as cultural significance, including the initial study's reference to
its style, submissions by the Historic Board, and comments by speakers at the
3. Historic Board
In a memorandum dated July 5, 2001, the Old Jail Subcommittee of the Historic Resources Review Board
recommended against supporting the mitigated negative declaration. Citing the City
of Oakland case, the memorandum expressed the
view "that an EIR is required prior to the county's decision regarding demolition since
the jail is a significant, historic resource as defined by CEQA." The memorandum
noted that the subcommittee had toured the site, met with County staff, and
studied many documents, including the original plans for the jail, the Cartier
report, the property condition report, and the initial study. The subcommittee
opined: "The analytical record as a whole cannot support the demolition.
It has in several areas been superficial."
Among other things, the subcommittee
questioned Cartier's conclusion that the jail's structure and design are not
particularly rare or unique, challenging "anyone to point out similar work
in this county, either as a jail of that period or another building in this
style." In its view, the jail "is a rare type and its castle like
stylings will long recall its former use as a fortress of sorts." The
subcommittee thus called into doubt Cartier's conclusion that the structure
itself lacks architectural significance as an historic resource.
In its memorandum, the subcommittee also
notes Cartier's references to C [eacute] sar Ch [aacute] vez, then adds:
"Other historically significant people will be found associated with the
jail, such as prisoner Inez Garcia about whose case a book was written."
In July 2001, by unanimous vote following a
scheduled public meeting, the Historic Board submitted the subcommittee's
recommendation to the Department, thereby endorsing the view that the jail is
an historic resource. In doing so, the Historic Board rejected the Department's
recommendation that it adopt the mitigated negative declaration and approve the
The County attempts to minimize the finding
of historic status by the Historic Board, employing a two-pronged attack.
First, the County characterizes the Historic Board's finding as a
"gratuitous conclusion" that carries no evidentiary weight, because it
was made without conducting the specific type of public hearing envisioned by
the Monterey County Code for the designation of historic resources. In
addition, the County asserts, "conclusions reached by agency staff
subordinate to agency decision makers on the ultimate issue of whether an
impact is 'significant' do not constitute substantial evidence--they are merely
inferences that may be disregarded."
We do not find either argument persuasive.
As to the County's first point, we note that the Historic Board determination was
made at a public hearing, at which review of the proposed MND was on the agenda--apparently at
the request of the Department itself. Under the circumstances, we find nothing
in the hearing process that diminishes the evidentiary force of the Historic
Board's finding. As to its second point, the County supports its view that
subordinate agency staff determinations lack evidentiary value by citing Perley
v. Board of Supervisors (1982) 137 Cal. App. 3d 424 [187 Cal. Rptr. 53]. We
do not read Perley so broadly. The planning commission in Perley relied
solely on the existence of public controversy and had no fact-based evidence
upon which to base its opinion of significant environmental impact. ( Id.
at pp. 435-436.) Perley also predated the CEQA definition of substantial
evidence codified in 1993, which logically includes the fact-based opinions of
agency staff and commissioners within the codified parameters of "facts,
reasonable assumptions predicated upon facts, and expert opinion supported by
facts." (§ 21082.2, subd. (c).) Here, the record includes fact-based
evidence of historic status, which the Historic Board and its subcommittee had
gained through meetings with County staff, a site view, and the review of
In sum, we find the Historic Board's
determination to be fact-based and procedurally proper. It constitutes
substantial evidence that the jail is historic.
At the public hearing held by the
Department in June and July 2002, a number of citizens voiced their opposition
to the proposed mitigated negative declaration. Some stressed the social and
cultural aspects of the jail's historic status; others spoke about its
architectural significance; some addressed both features.
Sergio Sanchez was one of the speakers
addressing the jail's cultural significance. He holds a state-level position
with LULAC, the League of United Latin American Citizens. As Sanchez put it,
the jail "means something to the farm workers of this community, there's a
huge history of farm workers in this community that place has been documented
in books and videos, photographs, where fifteen workers held vigil outside
waiting for their leader to come out. Where such people as Ethel Kennedy, the
widow of Robert Kennedy visited this jail, visited C [eacute] sar Ch [aacute]
vez in that jail. Coretta Scott King, the widow of Martin Luther King. Not many
places can say that they got a visit not only from C [eacute] sar Ch [aacute]
vez, but they got visits from Ethel Kennedy and from Mrs. Coretta King."
He stated: "It's not only a history of C [eacute] sar Ch [aacute] vez but
of the Latino community of this county that must be preserved and must be
Plaintiff Mark Edwin Norris addressed
another aspect of the jail's cultural significance. Norris is a Salinas resident, a building designer, and a member of the Historic Board and
its jail subcommittee. As part of his remarks, Norris mentioned Inez Garcia,
another famous jail inmate, saying: "Her case has changed the face of
women's rights in a very wide sense." Norris urged the County to postpone
any decision to demolish the building "to allow the State office of
Historic Preservation ... to do an eligibility assessment and for the addition
of interviews of former jail inmate[s], especially Inez Garcia ... ."
Enid Sales also spoke. She is a certified
historian, who was then serving both on the Historic Board and on its jail
subcommittee. She opined that "an EIR must be prepared for this notable
historic resource." She commented on the association of the jail with
"the perilous labor unrest in the Salinas Valley," and she urged its preservation "to the memory of this
critical time in cultural and economic change" in the area.
Echoing that sentiment was Salvador Mu
[ntilde] oz, the former cultural consul for Monterey County and another member of the Historic Board. Mu [ntilde] oz observed:
"The old jail is a site where historical figures met at significant
crossroads of local and national history. It is a symbol of our cultural
Mu [ntilde] oz, an architect, also spoke
about the structure's architectural value. He referred to the Old Jail as
"an architectural jewel and a symbol of its period of time." Mu
[ntilde] oz further remarked that the Old Jail is "of a unique design, combining
Art Deco elements and incorporating details from Gothic and Classical styles,
completed [in] November 1931." He later reiterated: "It is an example
of a very rare style in Salinas and Monterey County. The Art Deco, Gothic Revival and Classical Architecture." He
further noted that the building "is an example of the pioneering technique
which used integrated-color concrete in building."
Joel Panzer, a Salinas resident, characterized the jail as "the hub of Salinas" and remarked that its vintage was "probably at the same
period of time" as "this courthouse building, the old jail, the Salinas Californian building and the post office, so you also have to look at
that in context."
The County asserts that while "the
speakers may have meant well, they are not experts on the subject that they
testified about." Based on that assertion, the County characterizes the
speakers' testimony as "at best, unsubstantiated opinions that do not rise
to the level of substantial evidence."
We recognize that "substantial evidence"
does not properly include argument, speculation, or unfounded opinions. (§
21082.2, subd. (c); Guidelines, § 15384, subd. (a); Leonoff v. Monterey County Bd. of Supervisors, supra, 222 Cal. App. 3d at p.
1352.) But we disagree with the County's characterization of the speakers'
testimony as unsubstantiated opinion. For example, one of the speakers, Sales,
is a certified historian; she linked the jail with "the perilous labor
unrest in the Salinas Valley." Another speaker, Mu [ntilde] oz, is an architect; he noted that
the jail is "a very rare style in Salinas and Monterey County." He also stated that the building exemplifies a "pioneering
technique" in its use of integrated-color concrete. These and other
speakers' remarks represent fact-based observations by people apparently
qualified to speak to the question of the jail's historic status. That
testimony constitutes substantial evidence, because it consists of "facts,
reasonable assumptions predicated upon facts, and expert opinion supported by
facts." (§ 21082.2, subd. (c).)
Taken together, the following portions of
the administrative record contain substantial evidence supporting a fair
argument that the Old Jail is an historic resource, both culturally and
architecturally: (1) the initial study, (2) the Cartier report, (3) the
determination by the Historic Resources Review Board, and (4) the fact-based
testimony of qualified speakers at the public hearing.
B. Demolition as a Significant Impact
Having concluded that there is a fair
argument supporting the jail's status as an historic resource, we next consider
the effect of its proposed demolition.
The pertinent legal question is whether
demolition "may cause a substantial adverse change" to the jail's
significance as an historical resource. (§ 21084.1.) "A project that may
cause a substantial adverse change in the significance of an historical
resource is a project that may have a significant effect on the
environment." (Ibid.; see Guidelines, § 15064.5, subd. (b).)
"Substantial adverse change in the significance of an historical resource
means physical demolition" or other adverse effects, such that the
significance of the historic resource "would be materially impaired."
(Guidelines, § 15064.5, subd. (b)(1); see also § 5020.1, subd. (q) [same; CRHR
definitions].) Material impairment occurs when a project alters or destroys
"those physical characteristics of an historical resource that convey its
historical significance and that justify its inclusion" in a state or
local historic registry. (Guidelines, § 15064.5, subd. (b)(2)(A).)
Based on substantial evidence in the
administrative record in this case, there can be little doubt that demolition
will result in a substantial adverse impact on the jail. The initial study
flatly states: "Without appropriate and extensive mitigation, the proposed
demolition will cause a substantial adverse change to an historic
resource." As the court recognized in City of Oakland: "The proposed demolition of the building can hardly be considered
anything less than a significant effect." ( City of Oakland, supra,
52 Cal.App.4th at p. 908.)
The County does not contend otherwise.
Rather, it simply progresses to the next step in the analysis, the adequacy of
the mitigation measures.
As explained above, adoption of a mitigated
negative declaration is proper only where the conditions imposed on the project
reduce its adverse environmental impacts to a level of insignificance. (§
21064.5; Guidelines, § 15064, subd. (f)(2).) By statutory definition, a mitigated
negative declaration is one in which (1) the proposed conditions "avoid
the effects or mitigate the effects to a point where clearly no
significant effect on the environment would occur, and (2) there is no
substantial evidence in light of the whole record before the public agency
that the project, as revised, may have a significant effect on the
environment." (§ 21064.5; italics added.)
Here, to mitigate the impact of demolition
on the jail's historic significance, the County imposed the following conditions:
(1) photographic documentation; (2) preparation of an historic monograph; (3)
salvage of certain architectural elements; and (4) maintenance of a set of
Plaintiffs contend that the proposed
mitigation measures are not adequate. They assert: "As drawing a chalk
mark around a dead body is not mitigation, so archival documentation cannot
normally reduce destruction of an historic resource to an insignificant
level." As support for that assertion, plaintiffs rely on City of Oakland, supra, 52 Cal.App.4th 896. The plaintiff in
that case challenged a mitigated negative declaration adopted in connection
with the planned demolition of Oakland's historic Montgomery Ward building. ( Id. at p. 903.) The
mitigation measures in the Oakland MND included "documentation of the
structure in a report and survey, display of a commemorative plaque, and a new
shopping center with design features which reflect architectural elements of
the demolished building." ( Id. at p. 909.) The court found the
proposed mitigations insufficient, concluding that they did "not reduce
the effects of the demolition to less than a level of significance.
[Citation.]" (Ibid.) The court explained: "Documentation of
the historical features of the building and exhibition of a plaque do not
reasonably begin to alleviate the impacts of its destruction. A large
historical structure, once demolished, normally cannot be adequately replaced
by reports and commemorative markers. Nor, we think, are the effects of the
demolition reduced to a level of insignificance by a proposed new building with
unspecified design elements which may incorporate features of the original
architecture into an entirely different shopping center." (Ibid.)
Countering plaintiffs' assertion of
inadequate mitigation, the County cites three grounds for distinguishing City
of Oakland. We are not persuaded by any of them.
The County's first ground for
distinguishing City of Oakland rests on the fact that the Montgomery
Ward building was listed as historic by the city itself in its own preexisting
documentation. As we see it, however, that fact goes to the question of the
building's historic status, not to the issue of mitigation. And in fact, the
court mentioned that point under the heading "The Montgomery Ward Building
as a Historic Resource" and not in connection with its discussion of
"Mitigation Measures." ( City of Oakland, supra, 52
Cal.App.4th at pp. 908, 909.)
Second, according to the County, the
Montgomery Ward building possessed structural architectural values while the
Old Jail does not. As to that point, however, as we have explained above, we
find substantial evidence in the administrative record to support a fair
argument that the Old Jail has historic significance based on its architectural
features, quite apart from its cultural associations. Furthermore, City of Oakland does not hold that historic status
must always be based on architectural features. As discussed earlier, historic
status may derive from other qualities as well. (See § 5024.1, subd. (c); Guidelines,
§ 15064.5, subd. (a)(3).)
As a third ground of distinction, the
County claims that in City of Oakland "demolition did not appear to
be appropriate as the Montgomery Ward Building was apparently in good
condition; it had suffered no structural degradation even if it sustained
slight damage in the 1989 Loma Prieta earthquake." (See City of
Oakland, supra, 52 Cal.App.4th at p. 899.) While the court does mention the
lack of structural degradation, it describes the Montgomery Ward building as
having "fallen into severe disrepair, with peeling paint, broken windows,
graffiti, and numerous code violations, including the presence of
asbestos-containing materials." (Ibid.) Given that description, we
find it difficult to accept the County's view that the court's decision was
based in any way on the building's "good condition." In the same
vein, we observe that the administrative record in this case does not support
the County's determination that the Old Jail is in such poor condition that it
requires demolition, a point we explore more fully below.
In short, we find no basis on which to
distinguish City of Oakland. The analysis in that case is sound, and we apply it here. (See also,
e.g., San Bernardino Valley Audubon Society v. Metropolitan Water Dist., supra,
71 Cal.App.4th at pp. 396-400.)
On this record, we find substantial
evidence supporting a fair argument that the proposed mitigation measures are
inadequate, in that they fail to reduce the environmental detriment "to a
point where clearly no significant effect" will result. (§ 21064.5.)
D. Need for an EIR
Without undertaking a full EIR, the County determined that the
jail could not be saved, finding that "its preservation or adaptive reuse
is impractical due to its age, design, and deteriorating condition, and opening
up the building for more usable spaces would seriously degrade the structural
integrity of the building and pose a safety hazard to its occupants and
We find this determination insupportable,
both factually and legally.
As a factual matter, the administrative
record discloses mixed conclusions concerning the physical condition of the
structure, as well as an incomplete investigation both of the jail's condition
and of alternatives to demolition.
In the property condition report prepared
by PSI in August 2000, limitations on access and the absence of detailed
drawings prevented the evaluator from assessing some key areas of the
structure. The unexplored areas include the foundations, the underside of the
floor slabs, and the roof trusses. With respect to the roof, PSI stated: "No documentation was
available for our review to determine the building's actual roof system. The
type and quality of installation of underlying components of the roof membranes
could not be determined without intrusive investigation and testing."
Reporting on the accessible parts of the jail's superstructure, PSI did observe some evidence of water
intrusion. By the same token, however, PSI "did not observe signs of
visible distress" to the superstructure. Reporting on the exterior walls, PSI stated: "No major signs of
concrete spalling or cracking could be seen during our site visit, except for a
few isolated locations, such as at/and around concrete scuppers, at some eaves
and soffits, and column capitals and architectural decorative stone features at
the south elevation." PSI also acknowledged reports that
"the building satisfactorily resisted the 1989 Loma Prieta earthquake
In determining that preservation of the
jail was impractical, the County relied on Cartier's report for evidentiary
support. Cartier's report mentions retention and adaptation as an alternative
mitigation. But it notes that such a course for the jail "may be
impractical due to its age and condition (e.g., its roof problems,
deterioration of the concrete construction, specific design for secured
incarceration, and its lack of compliance with current building codes)."
The apparent basis for Cartier's assessment of the jail's condition is PSI's report. But as we explained
above, that report is not definitive on the question of the jail's structural
condition, much less on the need for demolition.
At the public hearings, several speakers
urged the County to further explore alternatives to demolition, such as
adaptive reuse. Mu [ntilde] oz argued for further study of "all the
options that we could have on the building." Norris asserted that "a
qualified historic architecture engineer needs to be brought in to assess the
potential for remodeling the structural reinforcement." Sales observed
that "an EIR will require that viable reuse be
examined." That refrain is repeated in the final addendum to Carey &
Company's historic monograph, which states: "A question has arisen as to
whether the existing building can be rehabilitated. It is Carey & Co.'s
opinion that a study of this nature would involve reopening the environmental
review process under ... (CEQA). This kind of analysis under CEQA would
probably be considered an alternatives analysis. Such an analysis would involve
not only the feasibility of rehabilitating the existing building, but also
other options such as moving the building, rehabilitating and adding on to the
building, and doing nothing. One of the alternatives would probably have to be
one that is environmentally superior to the proposed project. In this case that
would be preserving and rehabilitating the building as a jail or for a new use,
such as county offices."
The foregoing evidence discloses the need
for further investigation of alternatives to demolition.
As a legal matter, the County erred in
proceeding without benefit of a full environmental impact report. One function
of an EIR is to address the adequacy of proposed mitigation measures.
(Guidelines, § 15126.4.) Another function is to consider alternatives to the
project. (Guidelines, § 15126.4.) Neither was fully explored here. In cases
like this, an "EIR is required to identify and examine the full range of feasible
mitigation measures and alternatives to demolition. [Citation.]" ( City
of Oakland, supra, 52 Cal.App.4th at p. 909.) By instead certifying the
mitigated negative declaration, the County failed to proceed in the manner
required by law. (Ibid.)
Based on our independent review of the
entire administrative record, we find that plaintiffs have carried their burden
of citing to substantial evidence that supports a fair argument that the Old
Jail is an historic resource, that its demolition will have a significant
environmental impact, and that the proposed mitigation measures are inadequate
to reduce that impact to insignificance. Based on that finding, and given the
low threshold required for initial preparation of an EIR and the legislative preference for
resolving doubts in favor of full environmental review, we conclude that this
case must be remanded for preparation of an environmental impact report.
We reverse the judgment and we remand the
matter to the trial court with directions: (1) to enter a judgment granting the
petition, and (2) to issue a peremptory writ of mandate directing the County
(a) to set aside its certification of the mitigated negative declaration for
the old jail project, (b) to set aside its approvals for demolition of the old
jail, and (c) to prepare an environmental impact report in compliance with CEQA
in the event it determines to pursue demolition of the old jail.
Plaintiffs shall have their costs on
Bamattre-Manoukian, Acting P. J., and
Mihara, J., concurred.