Filed 5 / 12 / 23 Coalition for Historical Integrity v. City of San Buenaventura CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

COALITI O N FOR HISTORICAL INTEGRITY,

Plaintiff and A ppellant,

v.

CITY OF SAN BUENAVENTURA,

Defendant and Respondent. 2d Civ. No. B319536 (Super. Ct. No. 56

- 2020

- 00543397

- CU

- PT

- VTA ) (Ventura County)

This case illustrates the obvious; attitudes and values change. The City of San Buenaventura (Cit y) 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
wisdo m 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.2 FACTS The Statue of Ju ní

pero Serra
In 1936

, a concrete statue of Serra was dedicated in front of
the Ventura County c ourthouse, 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 decl aring 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 crack ing and in danger of falling apart. The City replace d 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 a t the base of the replica statue that stated, “Landmark No. 3.” The City’s Review of the Statue’s Landm ark 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 ori ginal
Serra statue as a historic landmark.
In 2005

, the environmental impact report for the City’s
G eneral P lan included the bronze statue on a list of landmarks in an appendix to the report. The G eneral P lan marks the loca tion
of the statue as a histori cal site. In 2007, as part of the D owntown S pecific P lan (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
int egrity to remain eligible for that designation. The survey3

identified the bronze statue as one of the previously designated landmarks that remain eligible for that determination. The
S pecific P lan lists the bronze statue as a historic resource.

The Bronz e 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 representati ve , 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 concret e statue and the bronze re plica 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 histo ric designation and t he 198 9 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,

a nd not eligible for historic landmark status.
Thereafter

, the c ity c ouncil 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 Resource s Code

, section 21000, et seq . unless otherwise stated

.4

under the “co mmon sense” 2 exemption because the removal of a

non

- historic statue will not have a significant effect on the
environment. Third, th e bronze statue be relocated to the San
Buenaventura Mission. Petition for Writ of Mandate and Ex Parte Application
In Jul y 2020, t he 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 evid ence. Second, removal of the statue violates the City’s S pecific P lan. 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,

t he Coalition filed an ex parte application for a temporary restraining order to halt removal of the statue. The City filed opposing documents. Ruling
T he t rial court denied the Coalition’s petition for a writ of
mandate and preliminary injunction , a s well as their e x parte application for temporary restraining order to prevent removal of
the statue. The reafter, 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: “T he activity is covered by the common sense exemption that CEQA applie s 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. ”5 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: “Historica l
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 assert s 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.)6 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 repo rt 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. ( Fl oresta , 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 repl ica 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 th e original concrete statue and its br onze replacement as

one. R ecently however, the City view ed the statu e s as two separate statues. The Coalition cites no authority that prevents the City from changing its view. It is beyond question that t he original concrete statue and its bronze replac ement
, 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 t here is no reason why the presumption cannot be rebutted by a findin g that the statue was never culturally or historically significant. Whether one agrees or not with this finding, t hat is what the City found

. Having found the bronze7

statue now has no historical significance, it follows that the CEQA common sense exempti on applies.
II. Specific Plan
The Coalition contends that removal of the bronze statue violates the City’s S pecific P lan. The City’s S pecific P lan lists the bronze statue as among the City’s historic resources. The Coalition argues that the Specific P l an provides for the preservation of historical resources. It does in part. But section 5.20.020 of the S pecific P lan also
allows for the demolition of a historical resource. The Specific
P lan provides that the demolition of a historical resource may

req uire review by the Historic Preservation Committee , the committee that approved removal of the statue

. Nothing in the
S pecific P lan prohibits the destruction or removal of a statue that is listed as a historical resource upon a finding that on reexaminati on 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 conte nds that removal of the statue was a quasi

- judicial act

, a nd t hat 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

- judicial8

capacity must be unbiased and cannot prejudice the matter. ( Petrovich Development Co., LLC v. City of Sacramento (2020) 4 8 Cal.App.5th 963, 973 ( Petrovich ) .) Council members acting in a quasi

- legislative capacity are not so constrained. ( City of Santa
Cruz v. S uperior 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 den ial 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 perm it involves questions of fact as to
whether the cri teria 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 [ d ecisions of public entities on the location of public impro vements are legislative].)9 DISPOSITION The judgment is affirmed. Costs are awarded to the respondent.
NOT TO BE PUBLISHED.

GILBERT, P. J.

We concur:

YEGAN, J.

BALTODANO, J.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.