Willow Glen Trestle Conservancy v. City of San Jose

Filed 5/18/20 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

WILLOW GLEN TRESTLE H047068 CONSERVANCY et al., (Santa Clara County Super. Ct. No. CV335801) Plaintiffs and Appellants,

v.

CITY OF SAN JOSE et al.,

Defendants and Respondents.

Appellants Willow Glen Trestle Conservancy and Friends of the Willow Glen Trestle (collectively the Conservancy) challenge the trial court’s denial of their mandate petition. In 2014, respondent City of San Jose (the City) approved a project that included the demolition of the Willow Glen Railroad Trestle (the project). The environmental document for that approval was a mitigated negative declaration (MND). The Conservancy’s 2018 petition alleged that the City violated the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) in 2018 by failing to provide supplemental environmental review of the project before the City sought and obtained a new Streambed Alteration Agreement (SAA) from the California Department of Fish and Wildlife (CDFW) after the City’s prior SAA for the project expired. The superior court found that the City was not obligated to provide supplemental environmental review because the City’s action in seeking and obtaining a new SAA was not a “new discretionary approval for the project” under California Code of Regulations,

1 title 14, section 15162 (CEQA Guidelines section 15162). We agree with the superior court and affirm its order.

I. Background We traced the history of this project in our opinion in Trestle I, supra, 2 Cal.App.5th 457. The Willow Glen Railroad Trestle (the Trestle) is a wooden railroad bridge built in 1922. The City acquired ownership of the Trestle in 2011. In 2013, the City proposed a project to demolish the Trestle and replace it with a new steel truss pedestrian bridge that would serve as a link in the City’s Three Creeks Trail system. (Id. at p. 461.) The City approved the project, adopted a mitigated negative declaration (MND), and found that the Trestle was not a historical resource. (Id. at pp. 461-462.) Litigation ensued concerning whether the City should have considered the Trestle to be a historical resource. At that time, the Trestle was not listed in the California Register of Historical Resources. Had it been so listed, the City would have been statutorily mandated to consider the Trestle an historical resource. (Trestle I, supra, 2 Cal.App.5th at p. 466; Pub. Resources Code, § 21084.1.) The City ultimately prevailed in that litigation. In May 2017, the California State Historical Resources Commission approved the listing of the Trestle in the California Register of Historical Resources, and the Trestle was so listed. In October 2017, the Commission denied the City’s request for redetermination of that decision. In March 2018, the City submitted to CDFW a “Notification of Lake or Streambed Alteration” in connection with the project. The City had submitted such a notification in