In a decision that will impact agencies’ distinction between ministerial and discretionary actions, a court recently held that a demolition permit approval under the City of Palo Alto’s municipal code was a “ministerial” act. Importantly, CEQA does not apply to ministerial actions. Thus, the City was not required to comply with CEQA review prior to approving the demolition permit.
The case concerned the Juana Briones House -- a designated historic landmark that became subject to a Mills Act historic preservation contract in 1988. In 1989, however, the Loma Prieta earthquake struck, causing substantial damage to the property, which ultimately led the latest owners to apply for a demolition permit in 1998 –- after the 10-year preservation contract had expired.
The City initially denied the demolition permit. But, the owners sued, and won a requirement from the court that the City must hold a hearing on their permit application. At the hearing, the City determined the action was “ministerial” and not subject to CEQA. The City then issued the demolition permit.
This time, a group named the Friends of Juana Briones House sued, alleging that the action was "discretionary" -- and thus the City had violated CEQA by failing to perform CEQA review.
In ruling that the City was correct in its ministerial determination, the court made the following holdings:
2) the City could not impose conditions on the permit for alleviating environmental conditions, but it could only impose voluntary conditions for preserving certain antiques and native plants, and those conditions did not re-characterize the action as discretionary;
3) the need for a future building permit did not require CEQA review under the “whole of the action” theory, because future action on a building permit might not be “significant in that it will change the scope and nature of the initial project or its environmental consequences”;
4) the possibility that the City could take the property through eminent domain did not make the action discretionary; and
5) there were no procedural violations that justified further proceedings.