San Diego Trust & Savings Bank v. Friends of Gill

• Decision Date: 22 June 1981
• Citation: 174 Cal.Rptr. 784,121 Cal.App.3d 203
• Court: California Court of Appeals Court of Appeals
• Parties: SAN DIEGO TRUST & SAVINGS BANK etc., et al., Plaintiffs, Real Parties in Interest and Respondents, v. FRIENDS OF GILL, Defendant, Cross-Complainant and Appellant, City of San Diego, Defendant, Cross-Defendant and Respondent. Civ. 18996.

Page 784

174 Cal.Rptr. 784

121 Cal.App.3d 203

SAN DIEGO TRUST & SAVINGS BANK etc., et al., Plaintiffs, Real Parties in Interest and Respondents, v. FRIENDS OF GILL, Defendant, Cross-Complainant and Appellant City of San Diego, Defendant, Cross-Defendant and Respondent.

Civ. 18996.

Court of Appeal, Fourth District, Division 1, California.

June 22, 1981.

Janet Motley, Gene Erbin and Mike Goldstein, San Diego, for defendant, cross-complainant and appellant.

George Deukmejian, Atty. Gen., R. H. Connett, Asst. Atty. Gen., and Mark I. Weinberger and Timothy R. Patterson, Deputy Attys. Gen., as amicus curiae on behalf of defendant, cross-complainant and appellant.

McDonald, Hecht & Worley and Donald R. Worley, San Diego, John W. Witt, City Atty., and John K. Riess, Deputy City Atty., for respondents.

COLOGNE, Acting Presiding Justice.

San Diego Trust and Savings Bank (Bank) as executor of the estate of Tom Kelly, deceased, and Kevin and Kathleen Kelly, co-administrators of the estate of Helen Kelly, deceased (referred to collectively as the Kellys), are the owners of certain real property on which there was a single-family residence known as Melville/Klauber House. ¹ This building was designed by architect Irving Gill and listed as a local and national historical site on both the City Historical Site Register and the National Register of Historical Places.

On November 14, 1977, the Kellys applied to the City of San Diego (City) for issuance by the City Building Inspection Department of a permit to demolish the House in order to develop the property. Pursuant to the provisions of San Diego Municipal Code section 26.02, dealing with the creation and duties of the San Diego Historical Site Board (Board), and particularly San Diego Municipal Code section 26.02E, ² dealing with demolition, alteration or removal of historical sites, the application was referred to the Board for consideration.

The Board objected to the issuance because an Environmental Impact Report (EIR) had not been prepared. The applicants then had an EIR prepared and, after revision, submitted it to the Environmental Quality Division of the Planning Department of the City. The EIR review process by the City became "final" on August 4, 1978, and on September 1, 1978, the Board again considered the application. The issuance of the permit was opposed by Friends of Gill, a group dedicated to preservation of the architectural works of Irving Gill. The Board objected to the issuance and recommended a stay of the issuance up to the maximum permissible 180 days.

On October 3, 1978, the San Diego City Council (Council) heard the Board's report and referred the matter to the Public Facilities and Recreation Committee of the Council. On October 19, the committee recommended the Council direct the city manager to assist however possible to achieve a private acquisition and report to the Council within 45 days on any feasible site for relocation and potential financial arrangements. The committee also recommended the Council direct the permit be issued if the House had not been privately acquired or the Council had not acted to preserve it within a 45-day time period. On October 23, the Council voted to direct the city manager's staff to explore and develop feasible means of removing the House to another site and report back within 90 days. It further expressed its intent that, should no solution be found within that time, the demolition permit should issue.

Before the expiration of the original 180-day stay, the Board requested the Council to extend the stay. The Council extended the stay an additional 120 days and later directed another stay or 60 days or until August 27, 1979.

On April 9, the Kellys brought this action against the City, Friends of Gill and others for declaratory relief, seeking a judicial declaration of the rights of the parties under the City's code and the California Environmental Quality Act (the Act; Pub.Resources Code, § 21000 et seq.) ³ as they pertain to the House. A cross-complaint was filed by Friends of Gill.

On stipulation of the parties, a motion for summary judgment was heard in the declaratory relief action on June 6, 1979, and judgment was rendered for the plaintiffs as follows:

"Based upon the pleadings, papers, stipulations, citations and arguments of counsel, it appears that the issues sought to be determined by counsel are appropriate for decision on the motions presently before the court. All discretionary functions will have been fulfilled as of the agreed date: June 27, 1979; therefore, issuance of the permit sought is a ministerial function.

"Plaintiffs' motion is granted; counsel for plaintiffs shall prepare, serve and file the order."

Appeal followed to this court. On October 11, an application to this court for a temporary stay was granted to October 12, in order to consider the merits of the petition. At that time, the application was denied.

In a separate action filed in August 1979, Harry Evans brought suit against the City of San Diego, Imperial Contracting Co., Inc., and San Diego Trust & Savings Bank (superior court case No. 439871), seeking a writ of mandate under Code of Civil Procedure section 1094.5. A temporary restraining order in that case resulted in a further stay on the issuance of the permit until September 12, when a hearing could be held. At that time, the trial judge denied the writ and Evans filed his notice of appeal. The Evans and Friends of Gill cases were consolidated for appeal, but Evans later withdrew his notice of appeal which, under rule 19(a), California Rules of Court, operates as a dismissal of the appeal in Evans versus the City of San Diego.

The permit was issued and the House demolished. On January 29, 1981, the parties stipulated the Bank and the Kellys had no further interest in the matter and they were dismissed as parties to the action and the appeal.

The City moved the appeal should be dismissed as moot because the demolition permit has been issued and the building removed. The owner and contractor have been relieved from further appearance so any resolution will not affect them or the property.

In a proceeding that might otherwise be deemed moot, we have discretion to resolve an issue of continuing public interest that is likely to reoccur in other cases, and such resolution is particularly appropriate when it is likely to affect the future rights of the parties before us. (Daly v. Superior Court, 19 Cal.3d 132, 141, 137 Cal.Rptr. 14, 560 P.2d 1193). The continuing public importance of preserving historical sites and the City's method of dealing with demolition permits require we address the issues at this time, even though our opinion will have no effect on the preservation of this historical site. The motion to dismiss is denied.

Friends of Gill and the state Office of Historic Preservation, which filed an amicus curiae brief, contend the issuance of a demolition permit of a historical site is a discretionary act making the permit-issuing process a "discretionary project" subject to the Act. The City agrees with this contention. We first resolve the parties are correct in this understanding.

The Act provides a legislative declaration of intent to take all action necessary to provide the people of this state with the enjoyment of aesthetic, natural, scenic and historic qualities (§ 21001, subd. (b)) and requires governmental agencies at all levels to develop standards and procedures necessary to protect environmental quality (§ 21001, subd. (f)) and consider qualitative, economic and technical factors, costs and benefits and alternatives affecting the environment (§ 21001, subd. (g)). It also declares public agencies should not approve projects if there are feasible alternatives or mitigation measures available which would substantially lessen the significant environmental effects (§ 21002). The use of an EIR is required on all discretionary projects (§ 21080; see § 21100 re contents of EIR).

Although the Act does not define discretionary, the secretary of the resources agency has adopted the following definition:

"Discretionary Project. Discretionary project means an activity defined as a project which requires the exercise of judgment, deliberation, or decision on the part of the public agency or body in the process of approving or disapproving a particular activity, as distinguished from situations where the public agency or body merely has to determine whether there has been conformity with applicable statutes, ordinances, or regulations. A timber harvesting plan submitted to the State Forester for approval under the requirements of the Z'berg-Nejedly Forest Practice Act of 1973 (Pub.Res.Code § 4511 et seq.) constitutes a discretionary project within the meaning of the California Environmental Quality Act.

§ 21065(c)." (Tit. 14, Cal.Admin.Code, § 15024.)

"Ministerial Projects. Ministerial projects as a general rule, include those activities defined as projects which are undertaken or approved by a governmental decision which a public officer or public agency makes upon a given state of facts in a prescribed manner in obedience to the mandate of legal authority. With these projects, the officer or agency must act upon the given facts without regard to his own judgment or opinion concerning the propriety or wisdom of the act although the statute, ordinance, or regulation may require, in some degree, a construction of its language by the officer. In summary, a ministerial decision involves only the use of fixed standards or objective measurements without personal judgment." (Tit. 14, Cal.Admin.Code. § 15032.)

In Day v. City of Glendale, 51 Cal.App.3d 817, at pages 823 to 824, 124 Cal.Rptr. 569, when deciding whether issuance of a grading permit was ministerial or discretionary, the court said:

"CEQA must be interpreted to afford the fullest possible protection to the environment within the reasonable scope of statutory language. (Citation.) A...