Introduction

This action involves issuance of a permit to demolish the Jackling House, an architectural gem and seminal historical resource of local, state, and national import. Designed by renowned architect George Washington Smith and built for copper magnate Daniel C. Jackling in the Spanish Colonial Revival style, the Jackling House has many remarkable fixtures of copper and copper alloy, reflecting Jackling’s leadership in the copper industry. Real Party in Interest Steven P. Jobs seeks demolition of this historic single-family house in order to build a different house on a twelve acre site in the Town of Woodside.

The case turns upon the substantive mandate of the California Environmental Quality Act (“CEQA”): to protect the environment, including the historic “built” environment, each lead agency “shall mitigate or avoid the significant effects on the environment of projects that it carries out or approves whenever it is feasible to do so.” (Pub. Resources Code §21002.1, italics added; see also § 21002.) Thus, no public agency shall approve a project for which an environmental impact report (“EIR”) has been certified which identifies one or more significant environmental effects — including impacts to historic resources — unless specific economic, legal, social, technological, or other considerations make the mitigation measures or alternatives identified in the EIR infeasible. (Pub. Resources Code § 21081.)

The trial court’s decision to issue a writ setting aside the Jackling House demolition permit should be sustained. Appellant Woodside rejected various preservation alternatives simply because Jobs did not want to undertake the trouble or expense of any of them. These alternatives included both rehabilitation or relocation of the Jackling House to another site, which would allow Jobs to go forward with construction of his proposed house without sacrificing an extremely significant historical building. These alternatives were determined to be feasible in the project EIR.[1] While costly, the EIR recognized that Jobs had the resources to undertake them and that there might also be third parties with the resources, interest, and ability to undertake one or more alternatives. The cost of alternatives was not unreasonable when considered in the context of the proposed project and the significance of the resource to be protected. If a project applicant could trump CEQA’s mandates that require avoidance or reduction of adverse impacts simply by declaring every alternative or mitigation measure infeasible based upon his own personal preferences, CEQA review would be utterly pointless.

Jobs and Woodside (collectively, “Appellants”) argue that Jobs cannot be forced to undertake a preservation alternative, and that therefore all alternatives are legally infeasible. This ignores the definition of “feasibility” under CEQA: “capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technological factors.” (Pub. Resources Code § 21061.1.) Woodside may not force Jobs to undertake a preservation alternative, but as recognized by the San Mateo Superior Court it must deny issuance of a demolition permit because demolition will have a significant environmental impact and there are feasible alternatives.

Under CEQA, an agency can approve a project with adverse impacts if there is substantial evidence that the project would also have significant benefits, but only if it already has adopted all feasible mitigation measures or alternatives. As already stated, here there is not substantial evidence to support a finding of infeasibility. Further, even if there was evidence that all of the preservation alternatives were somehow infeasible, there is not substantial evidence supporting Woodside’s strained claim that demolishing a large historic resource will benefit a vague and unspecified General Plan goal of open space preservation.

Thus, Woodside abused its discretion both by approving demolition without substantial evidence that all alternatives and mitigation measures were infeasible, and by adopting an unsupported statement of overriding considerations. The Judgment should be affirmed.

Statement of Facts

I. THE HISTORICAL SIGNIFICANCE OF THE JACKLING HOUSE.

The Jackling House, with its many striking copper and copper alloy fixtures, is historically significant and is eligible for listing on the California Register of Historical Resources because of its association with Daniel C. Jackling, a dominant figure in the American copper industry, and because the construction of the House reflects Jackling’s role in the copper industry. (Administrative Record Volume 2, page 533-534, hereinafter cited “_:_”) The Jackling House is an impressive example of Spanish Colonial Revival architecture, embodying the distinctive characteristics of a period (1915-1940), region (Woodside), and method of construction (double walls of wood studs and stucco), and exhibiting a high degree of craftsmanship. It is one of the most outstanding historically significant properties in Woodside. (2:534-535.) The Jackling House is located on twelve acres of land owned by Jobs in Woodside (3:817) and is visible from the road and nearby open space areas. (2:501.)

The House was designed by George Washington Smith, the leading Spanish Colonial Revival architect of his day. (2:734.) He is considered to be “one of the most important architects of California houses in the first half of the 20^th century.” (2:733.) Because Smith was such a notable California architect, his designs and drawings, including those for the Jackling House, are kept in the University of California Santa Barbara’s Architectural Design Collection. (3:1096.) Smith designed homes and buildings throughout California communities, including Santa Barbara, Pebble Beach, San Francisco, and Woodside. (2:735; 3:1097; 3:1099.) Two George Washington Smith homes were built in Woodside: the Jackling House and the Dr. Herbert Moffet residence; both appear in the book George Washington Smith, An Architect’s Scrapbook. (3:1097.)

II. OWNERSHIP AND USAGE OF THE JACKLING HOUSE.

The Jackling House was designed in 1925 and finished in 1926. (2:731.) It remained the Jacklings’ home until 1957. (2:732.) After 1957, it had various other owners until, in November 1984, Jobs acquired it. (1:77, 2:732, 816.) He used the House as his primary residence for approximately ten years. (3:817, 820.) Thereafter he moved to Palo Alto and rented the House to friends for several years. (3:817, 820.) Then, starting around 2000, Jobs stopped having anyone live in the House, and allowed it to deteriorate. (3:817, 820.) Since then, there has been vandalism and some destructive asbestos removal. (3:817.) Jobs later purchased the three-acre property next door. He wants to tear down the Jackling House and the residence on the adjoining lot in order to build one new single-family residence on the total 12 acres. (3:818.)

III. DEMOLITION PERMIT APPLICATION AND REVIEW.

Jobs has yet to submit an application for a building permit for a new house, and there is no estimate of its anticipated cost, and no information about its likely nature or style. (2:452.) The only details regarding the proposed new house in the Administrative Record is that Jobs agreed to limit the new residence to approximately 6000 square feet if the demolition permit were granted, which is the maximum allowed by Woodside planning and zoning requirements. (2:452-453.) However, the project for the purposes of this case is the demolition of the Jackling House and the construction of a new house. (2:450-451.)

A Draft EIR, released for public review on January 27, 2004 (2:494) analyzed the impact of demolition of the Jackling House. In it, an architectural historian’s historic resources report documented the reasons why the Jackling House meets two of the four criteria for listing on the California Register of Historical Resources, any one of which is sufficient for listing, as it is both “associated with the lives of persons important to local, California, or national history” and “embodies the distinctive characteristics of a type, region, or method of construction, or represents the work of a master, or possesses high artistic values.” (2:708-740.) Other historic architecture experts fully concurred with the EIR’s conclusion that the Jackling House was eligible for listing on the California Register of Historical Resources. (2:741.)

The Final EIR was released on May 20, 2004. It analyzed five preservation alternatives: (1) no project (2:550); (2) renovation (2:551); (3) renovation plus addition (2:557); (4) relocating the House onsite (2:564); and (5) relocating it offsite (2:570). As stated in Appellants’ opening brief, Jobs “could not have been more emphatic” in his rejection of all of these alternatives, and insisted he should be granted a demolition permit. (Appellants’ Opening Brief (“AOB”), p. 18.)

In a letter dated May 27, 2004 to the Woodside Planning Commission, Susan Brandt-Hawley, a prominent California historical preservation attorney who served as Woodside’s special legal counsel in this matter, wrote:

The Town has no obligation to approve the requested demolition of an historic resource. The Town cannot require rehabilitation of the Jackling House, but it may choose to deny its demolition since it will have a significant environmental impact. The fact that the valuable residence remains on the property and that according to the EIR its rehabilitation is feasible reinforces the fact that the applicant’s objective of a single-family residence may be achieved without demolition. The applicant is left with viable, beneficial, non-demolition uses of his historic property.

(3:1075-1076.) Although Jobs’ attorney argued in a June 8, 2004 letter to the Planning Commission that denial of the demolition permit for the project “will not preserve the Jackling House” and that Jobs “cannot legally be required to maintain the structure” (3:1239), Brandt-Hawley also had noted,

The current deteriorated condition of the Jackling House is due to the owner’s lack of maintenance as well as his deliberate actions taken to leave the house open to the elements and birds. . . . In my opinion, any reprise of destructive activities should be construed as demolition by neglect; a conscious action taken by Mr. Jobs to achieve demolition without a permit. If the Town does not grant a demolition permit, under its police powers it may prohibit any reprise of demolition by neglect.

(3:1232-1233.)

In a June 2, 2004 report, the Planning Commission staff recommended that the Planning Commission deny the demolition permit and find that the significant environmental impact of demolition was not outweighed by overriding public benefits. (2:782-788.) It noted that the demolition would be contrary to the architectural and site review provisions in Woodside’s Municipal Code Section 153.221, which “encourage[s] the maintenance, rehabilitation, and improvements of existing buildings and structures.” (2:783.)

The trial court described the subsequent factual history[2]:

Instead, at its meeting of June 2, 2004, the Woodside Planning Commission approved the demolition permit. . . . Jobs indicated that he did not like the look of the existing house and that it was rundown. AR 816. He also admitted that he allowed the house to fall into disrepair because he wanted to tear it down anyway. Jobs’ attorney argued that all of the alternatives were not economically feasible. He also indicated that Jobs did not have any designs or plans for the anticipated new residence - Jobs “did not wish to design the new residence until receiving permission to demolish the old estate.” AR 795. . . . The Planning Commission was informed that if any of the alternatives were deemed “feasible” then the demolition must be denied and the proposed project disapproved. AR 839.

(Joint Appendix (hereinafter “JA”) 129-130.) The staff report for the June 16, 2005 Planning Commission hearing stated that there was no evidence of infeasibility or of an overriding benefit. (3:888.)

During Woodside’s administrative review of the demolition permit application, demolition of the Jackling House was opposed by the Woodside History Committee (3:1100), the National Trust for Historic Preservation (3:1112-1114), and local residents, including members of Respondent’s group. (3:1038-1044; 3:1093-1095; 3:1107.) The State Historical Resources Commission also opposed the demolition. The Commission is the agency established under State law to protect California’s historical resources. (Pub. Resources Code §§ 5020.4 (a)(8) and 5024.1 (a); Title 14, Cal. Code Regs. (“CEQA Guidelines”), § 15064.5 (a)(1).) The agency stated, “The loss of the Daniel C. Jackling residence . . . , either through demolition or inappropriate relocation, would be a loss to the cultural heritage or [sic] the State of California and the nation.” (3:1098.)

As the trial court stated, despite all of the opposition to demolition:

The Planning Commission adopted and certified the final EIR, but ordered the staff to draft new findings, i.e., findings that there was an overriding benefit supporting demolition of the historic building. AR 798. Yet, the Planning Commission was unable to articulate the basis of its decision. On the contrary, it voted to “continue the discussion to meeting of June 16 to allow the Commissioners to consider the reasons why each alternative is infeasible and articulate why the statement of overriding consideration should be prepared to allow the approval of the demolition permit. AR 798.

At the next meeting on June 16, 2004, counsel for Jobs proposed to the Planning Commission that they make findings of overriding considerations based upon the Town's General Plan. AR 893-901. The basic thrust of the finding is that tearing down the Jackling House would allow the building of a smaller residence in conformity with existing Town specifications and zoning. Several commissioners believed that “open space” was an overriding consideration. See AR 920, 921, 925, 931. The Planning Commission approved the Statement of Overriding Consideration and approved the demolition permit. AR 906.

As part of its findings, the Planning Commission found that all five project alternatives “are not feasible.” AR 956. Specifically, Alternative #1 (no project) “fails to meet the project objectives and does not protect an historic resource”; and that Alternatives #2, #3, #4 and #5 are “economically unjustifiable”. After finding that no alternatives were viable, the Planning Commission held that allowing the demolition with certain conditions added (of a mitigating nature) would be consistent with the General Plan, particularly as to open space. AR 958-960.

(JA 130-132.)

Three individuals appealed the Planning Commission’s approval of the demolition permit to the Town Council. (3:1195-1197.) In a September 15, 2004 letter to the Town Council, then California State Historical Resources Commission Chair Dr. Anthea Hartig concurred with the EIR’s finding of historic significance. (3:1098.) She stated that loss of the Jackling House would be a loss to the cultural heritage of the State of California and the nation, and that the House is a “work of great significance.” (3:1099.)

The Woodside Town Council considered the appeals on December 14, 2004. Woodside’s staff again recommended denial of the demolition permit, reaffirming that the Jackling House meets the criteria for listing as a state historical resource. (3:1173.) In the report, Woodside Director of Planning and Building Hope Sullivan explained:

Staff does not find that the project as proposed offers any benefits that would allow the Town Council to adopt a Statement of Overriding Consideration. Further, since there are feasible alternatives to demolition, a Statement of Overriding Considerations is not allowed by CEQA (Public Resources Code section 21081.) A Statement of Overriding Considerations may be considered only if there are not feasible alternatives to demolition and the significant environmental impact of the loss of an historic resource is therefore unavoidable. That is not the case here.

(3:1175; emphasis added.) Staff recommended a finding that “There is no substantial evidence in the record that alternatives identified in the EIR are infeasible.” (3:1186.)

At the December 14, 2004 hearing of the Town Council, Sullivan emphasized

CEQA does recognize that specific . . . benefits of a proposal may outweigh the unavoidable environmental effects, making the environmental effects acceptable. This can only be done if the project alternatives are not feasible, and I do believe they are feasible.

(4:1280, emphasis added.) She pointed to relocation as a feasible alternative, noting “the level of interest” expressed by individuals in relocating the House. (4:1301.) Ms. Sullivan referred to Appendix 7 of the EIR and stated relocation was estimated to cost roughly $700,000 to $800,000. (4:1303.) Following press coverage of the Planning Commission decision, scores of individuals had inquired about restoring the House. (3:1119-1123.) The inquiries were a spontaneous response to the press coverage rather than a response to any affirmative effort by Woodside or Jobs to find someone interested in relocating the House. (4:1313-14.)

On December 14, 2004, Woodside’s Special Counsel commented on the Planning Commission’s finding that benefits of the project outweighed its impacts. She stated:

[T]he argument is made that because Mr. Jobs does not want to . . . rehabilitate the house, that in fact that is an infeasible alternative, because that’s not something that the applicant wishes to do.

And I would just like to point out that that is not a grounds for infeasibility, and in fact if you think about CEQA, the point of the environmental law is to look at project alternatives to avoid environmental impacts. If an applicant’s refusal to accept an alternative was a grounds for infeasibility, then it guts the statute. If any developer wants to build a project he wants to build, his refusal to do anything else is not a grounds for infeasibility.

(4:1283.) Woodside’s Special Counsel noted that she had brought and submitted to the Woodside Planning Department a recent Superior Court decision from Santa Clara County that lengthily discussed and dismissed a similar argument that a developer’s unwillingness to consider an alternative made it infeasible.[3] She further reminded the Town Council that it could not even consider the overriding benefit to Woodside if there was a feasible alternative, and that Staff and the EIR had concluded there were feasible alternatives. (4:1297.)

Contrary to staff’s and counsel’s recommendations, the Town Council voted 4-3 to adopt a statement of overriding considerations and approved the demolition. (4:1391-1392.)

Woodside did condition its approval of the demolition by providing that the permit would not be issued for twelve months, during which time Jobs “shall work with the Town to market the main house. . .” for relocation, with Jobs to donate

a reasonable amount, as determined by the Town Manager, to the cost of the moving of the main house to a new location.

(4:1397.)

ARGUMENT

I. Woodside Violated CEQA by Approving Demolition of a Significant Historical Structure Without SuBSTANTIAL Evidence of Infeasibility of Alternatives.

A. CEQA’s Substantive Mandates Encompass Historical Resources and Denial of a Project is Required When There Is a Feasible Alternative.

1. CEQA Contains Substantive Mandates.

The “policy of the state” reflected in CEQA is that projects with significant environmental impacts may not be approved “if there are feasible alternatives or feasible mitigation measures available which would substantially lessen the significant environmental effects . . .” (Pub. Resources Code § 21002.) More specifically, CEQA states:

Pursuant to the policy stated in Sections 21002 and 21002.1, no public agency shall approve or carry out a project for which an environmental impact report has been certified which identifies one or more significant effects on the environment that would occur if the project is approved or carried out unless . . .:

(a). . . (3) Specific economic, legal, social, technological, or other considerations . . . make infeasible the mitigation measures or alternatives identified in the environmental impact report.

(Pub. Resources Code § 21081.)

Appellants wrongly state “Aside from the requirement to prepare an EIR- a purely information as opposed to regulatory document-- no affirmative obligation flows from CEQA. . .” (AOB, p. 28.) Contrary to Appellants’ denial of an affirmative obligation imposed by CEQA, it is settled law that:

CEQA contains substantive provisions with which agencies must comply. The most important ... is the provision requiring agencies to deny approval of a project with significant adverse effects when feasible alternatives or feasible mitigation measures can substantially lessen such effects.

(Sierra Club v. Gilroy City Council (1990) 222 Cal.App.3d 30, 41, italics added.) Indeed, in a case decided on July 7, 2006, a court analyzed the “substantive mandate” of CEQA, then set aside a college campus master plan project because there was not substantial evidence to support a college district’s findings of economic and legal infeasibility of mitigation. (County of San Diego v. Grossmont-Cuyamaca Community College (2006) –Cal. App.--, slip opinion, pp. 18-29[4].)

“Feasible” is defined as “capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technological factors.” (Pub. Resources Code § 21061.1.) The definition does not require the agreement of the project applicant. “Each public agency shall mitigate or avoid the significant effects on the environment of projects that it carries out or approves whenever it is feasible to do so.” (Lincoln Place Tenants Ass'n v. City of Los Angeles (2005) 130 Cal.App.4th 1491, 1508, emphasis added.)

2. CEQA’s Substantive Protections Include Historic Resources.

Since its inception, CEQA’s substantive protections have encompassed historic resources. The Supreme Court reiterated in Friends of Sierra Madre v. City of Sierra Madre (2001) 25 Cal.4th 165 that while CEQA is “directed primarily to ecological concerns and preservation of the environment,” it is “the policy of the state to ‘preserve . . . examples of the major periods of California history.’” (Id. at 183-184; Pub. Resources Code § 21001 subd.(c).) Indeed, the Legislature has committed to “take all action necessary to provide the people of this state with . . . historic environmental qualities.” (Pub. Resources Code § 21001, subd.(b).) Thus, “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.” (Pub. Resources Code § 21084.1.) Demolition of the Jackling House, a significant historical resource, thus would cause a significant adverse effect on the environment within the meaning of Public Resources Code section 21084.1. (4:1396.)

Despite Woodside’s agreement regarding the significance of the Jackling House, the Town Council erroneously agreed with Jobs that the expense of the alternatives made them infeasible. Appellants claim that “feasible” does not include a thing that is “unlawful or economically unrealistic,” and that the alternatives “were all both financially and legally infeasible.” (AOB, p. 16, emphasis original.) As discussed below, substantial evidence in the record does not establish that alternatives identified in the EIR are either economically or legally infeasible.

B. Evidence About the Cost of the Demolition and Construction Project Does Not Support the Finding of Infeasibility of All Alternatives.

The bare cost of an alternative is insufficient to show it is financially infeasible:

The fact that an alternative may be more expensive or less profitable is not sufficient to show that the alternative is financially infeasible. What is required is evidence that the additional costs or lost profitability are sufficiently severe as to render it impractical to proceed with the project.

(Citizens of Goleta Valley v. Board of Supervisors (Goleta I) (1988) 197 Cal.App.3d 1167, 1181, emphasis added.)

Appellants claim that Woodside’s determination that alternatives were infeasible was based on substantial evidence consisting of cost estimates ranging from approximately $4.9 million to $9 million (AOB, p. 20 and 22), although the costs of relocating the Jackling House to another site was estimated to be $700,000 to $800,000. (4:1303.) Simply stated, Woodside failed to obtain the evidence that would allow it to evaluate the economic feasibility of these alternatives. There was little reference to the monetary resources available to Jobs, although his billionaire status is a matter of common knowledge; there was little evidence regarding the value of the property, either with or without the Jackling House; and there was no evidence about the cost of the proposed demolition and construction project. Additionally, Jobs’ attorney himself stated that “we have uncovered a tremendous amount of interest in people who want to move and restore the house.” (4:1314.) As discussed below, evidence in the record showed that relocation was economically feasible, and there was no evidence that other alternatives were infeasible.

1. The Amount of Money Required for Preservation Alternatives, Without Context, is Insufficient to Show Infeasibility.

Appellants wrongly state that “[t]he very size of the amounts required [for preservation] constitutes substantial evidence to support a finding of economic infeasibility, without more.” (AOB, p. 21.) This assertion is directly contradicted by settled law: increased costs or reduced profits alone do not equate to infeasibility, since such costs must be “sufficiently severe” to render it “impractical to proceed” with a project. (Goleta I, supra 197 Cal.App.3d 1167, 1181.) In this case, there was no evidence to show additional costs were so severe that it would be impractical to proceed with the project. On the contrary, the limited evidence in the record tends to show that in the context of this project, the alternatives are economically and legally feasible.

Alternatives are not infeasible merely because they appear to be expensive. Any meaningful statement about infeasibility requires a context within which to gauge it. As discussed below, the context disclosed in the cases upon which Appellants rely (AOB, pp. 20-23) for findings of economic infeasibility either focus on the overall cost and profitability of the proposed projects (Maintain Our Desert Environment v. Town of Apple Valley (“MODE”) (2004) 124 Cal.App.4th 430; San Franciscans Upholding the Downtown Plan v. City and County of San Francisco (2002) 102 Cal.App.4^th 656), or upon evidence about the extent of the resources available to the project applicant (City of Fremont v. San Francisco Bay Area Transit District (1995) 34 Cal.App.4^th 1780, 1787). Such evidence is absent in this case.

a. Information About the Full Scope of the Project Was Required to Provide Context.

Appellants unfairly criticize the trial court’s analysis because it “depended upon a definition of the ‘project’ as not just a demolition, but demolition plus construction of a new residence.” (AOB, p. 14.) The trial court in fact correctly analyzed the whole of the project. Respondents in Lincoln Place, supra, 130 Cal.App.4th 1491, tried to draw a legally erroneous narrow project description as Appellants similarly attempt to draw in this case. This narrow definition was rejected by the Court:

We find the distinction drawn by the city and the owners between the ‘demolition project’ and the ‘redevelopment project,’ is disingenuous at best. Under CEQA a ‘project’ is ‘an activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment[.]’ This definition is amplified in the Guidelines which define a ‘project’ as ‘the whole of an action, which has a potential for resulting in’ a direct or indirect physical change in the environment.

(Lincoln Place Tenants Ass'n v. City of Los Angeles, supra, 130 Cal.App.4th at 1507 [citations omitted].) Despite the settled law in this regard, Appellants claim that “it is the demolition and the demolition alone that defines the project for purposes of CEQA.” (AOB, p. 15.) For purposes of analyzing the feasibility of alternatives and mitigation measures in the EIR, the “project” must encompass the “whole of an action,” not each individual associated approval. (Lincoln Place Tenants, supra, 130 Cal.App.4^th at 1507.) Appellants imply that the trial court’s reasoning about the extent of the project somehow challenged the project description in the EIR. (AOB, p. 14.) However, the project description in the Final EIR was valid as it stated that the project included clearance of the site “to prepare the site for eventual construction of a single-family residence.” (2:501; accord 2:507-8.) A councilmember verified, “Now it’s been submitted as a demolition and building of some undefined house.” (3:832, emphasis added.) Appellants acknowledged the project goal was preparing for construction of a new residence, not just demolition of the Jackling House.

b. Consideration of Context is Required Because the Costs of Mitigation Vary With a Project’s Impacts.

For larger, more expensive, or environmentally damaging projects, significant expenditures for mitigation measures may be appropriate. In one case, mitigation measures worth $674 million were part of a project approval for a “Residential Neighborhood Protection Program” and other mitigation measures under an urban development plan for a 1.5 square mile area. (Los Angeles Unified School Dist. v. City of Los Angeles (1997) 58 Cal.App.4th 1019, 1030.) In another case, $10 million in mitigation was provided to counter the groundwater-contaminating effects of a proposed landfill on third parties. (Cadiz Land Co., Inc. v. Rail Cycle, L.P. (2000) 83 Cal.App.4th 74, 96.) The expense of these measures was appropriate in the context of the projects proposed. With no context, there is no way to judge the reasonableness of the expenditures required for mitigation of a project’s impacts.

Although the appraised fair market value of the property is not found in the Administrative Record, the Record reflects that a buyer in Woodside recently purchased 11 acres that was part of the former Jackling Estate for “the astonishing price of $52.5 million.” (1:283.) Jobs wishes to build his new home on 12 acres. (3:817.) While the rehabilitation would be costly, is certainly possible that Jobs may seek a permit to build a house that costs more than rehabilitating the Jackling House - a house he previously lived in for 10 years. Although little information is contained in the Record, what is known shows the context of the project is a unique historical resource that is considered highly valuable by many people and the location is the community of Woodside, where real estate prices are very high. Appellants claim “inferences” or “common knowledge” of council members support the conclusion of infeasibility. (AOB, p. 23.) However, as discussed further below, those “inferences” or “common knowledge” are not stated in the record, thus violating the principle that a public agency must explain its analytic route. (Village Laguna of Laguna Beach v. Board of Supervisors of Orange County (1982) 134 Cal.App.3d 1022, 1034-1035.)

c. Appellants’ Cases are Inopposite because those Cases Included an Economic Analysis.

One possible method of evaluating economic feasibility of an alternative is a comparison of the overall cost of the project to the market value of a project site or the value of the project. During administrative review before Woodside, a member of the public identified the lack of a “comparison of costs of demolition and constructing a new residence versus the cost of rehabilitating the Jackling House as a residence” as one type of evidence that was lacking to support the Town’s decision that renovation was economically infeasible. (3:995.)

There is no evidence of any economic analysis whatsoever to compare the cost of the proposed alternatives (which costs are estimated in the EIR, except for the relocation alternative) versus the cost of the proposed project, including the estimated cost of the new residence. The “purpose” of the project is to tear down a single family residence in order to build a single family residence. (2:497, 507 [project objective is clearance of site “to prepare the site for the eventual construction of a single-family residence”], 508.) No costs of building the new residence were provided to the Town Council because Jobs declined to provide any designs, plans, or specification of the new residence until after his demolition permit is granted. (2:522 [“specific details of that residence have not been submitted to the Town”].) Thus, there is no cost comparison or analysis supporting any of these findings that each of the alternatives are “economically unjustifiable.”

Appellants contend that in San Franciscans Upholding the Downtown Plan. v. City and County of San Francisco (2002) 102 Cal.App.4^th 656, this Court held that reports describing “the huge costs of each historic preservation alternative were sufficient to support findings that the alternatives were infeasible.” (AOB, p. 21.) San Franciscans involved a redevelopment project at the site of the former Emporium store in downtown San Francisco. Detailed financial reports prepared by independent real estate valuation experts provided information about the revenue streams that could be expected to be generated from each of the alternatives. (Id. at 693 [“[A] report calculated the development costs and projected revenue stream for the preferred Project and each preservation alternative in order to determine the return an investor could expect to make and the consequent amount a prudent person might invest given the expected revenue stream. . . . The financial gap . . . represented a shortfall that would have to be made up with public investment.”]) The independent economic analysis revealed that the most preservation-oriented alternative would require $82.1 million in public investment to “close the financial shortfall between private investment and cost of rehabilitation and development.” (Id. at 694.) The type of independently-verified economic analysis comparing initial investment cost to potential revenue streams available in San Franciscans is not available here.

Appellants imply that City of Fremont v. San Francisco Bay Area Transit District (1995) 34 Cal.App.4^th 1780 upheld a finding of financial infeasibility “based solely on the cost of an alternative.” (AOB, p. 23.) That implication is wrong because the record in that case contained substantially more evidence than merely the cost of an alternative. In City of Fremont, the California Legislature had passed a bill that required Bay Area Rapid Transit (“BART”) to begin constructing a line extension to service the Warm Springs area by December 31, 1991, if certain conditions were satisfied. (Id. at 1784.) Because of this mandate and time limit, BART’s budget and the availability of funding represented particularly rigid limiting factors. BART proposed constructing an aerial rapid transit route extension. (Id., at pp. 1783-1785.) Among the project alternatives, the EIR considered constructing the extension underground; however, it concluded that this alternative would cost $60 million more than the project, and therefore was economically infeasible. (Id., at pp. 1785, 1787.) In affirming BART’s action, the Court did not rely upon the sheer size of the $60 million number. The record in City of Fremont contained evidence of limitations on BART’s funding resources:

However, the cost of the subway alignment in Central Park is in excess of BART's current funding resources, and is, as a consequence, currently infeasible for economic reasons.

(Id. at 1787, italics added.) There was discussion of the limits of BART’s funding capabilities:

The tables discussed above, clearly reflect BART's estimate that a subway would cost up to $60 million more than an aerial structure, an amount in excess of BART's funding capabilities.

(Id. at 1788.) Thus, there was evidence BART’s “funding resources” and “funding capabilities” were exceeded that supported a decision to find alternatives infeasible. The careful cost estimates and analysis lead to an inescapable conclusion because they were within a meaningful frame of reference: solid evidence that one alternative would cost $60 million more than the selected project, plus the fact that BART could not pay that extra $60 million, indicated that the alternative was economically infeasible. City of Fremont was not a situation where costs in isolation were used to support a finding of economic infeasibility, or where a big number, by itself, determined infeasibility. Unlike City of Fremont, here there is no evidence of any limitations on Jobs’ funding resources or capabilities. Additionally, in contrast with the City of Fremont’s time limitation to construct a subway, Jobs has indicated that he is under no time constraint. (3:819. [“I’m just in this for the long haul and I’m not living there, so I’ve got time . . .”].)

Terms such as “infeasible,” “impractical,” or “economically
unjustifiable” can be entirely subjective and arbitrarily applied if they are not provided in a context and with a frame of reference to allow comparison with what is feasible, practical, or economically justifiable. Foundation for San Francisco’s Architectural Heritage v. City and County of San Francisco (1980) 106 Cal.App.3d 893, cited by Appellants (AOB, 21, 30), provides insight into the type of data that could have been supplied in the record, but was not, in this case. Foundation involved demolition of the historic City of Paris building and construction of a new building by Neiman-Marcus in San Francisco. (Id. at 898.) The base construction cost for the project was known and “each of the alternatives considered would have increased construction costs from 1.5 million dollars to over 4 million dollars.” (Id. at 913.) Evidence in the record supported findings that

The developer cannot use the City of Paris Building in its present configuration or in any rehabilitated or renovated configuration as a retail specialty store. . .

There is no evidence that another developer exists who is willing to acquire and rehabilitate the existing structure and who has the financial and technical ability to do so. ...

(Id. at 904.)

In the present case, the cost of the whole completed project is an unknown quantity. In contrast with the facts in Foundation, evidence in the record shows that Jobs could use the House as a residence and has done so in the past. As discussed below, there is also evidence that other individuals exist who have the willingness, financial ability, and technical ability to acquire the Jackling House, relocate it, and restore it.

In contrast with Foundation, San Franciscans, and City of Fremont, in this case there are no economic analyses or cost comparisons to substantiate Appellants’ assertions of infeasibility of alternatives. Without such comparative evidence, Woodside had no basis for concluding alternatives were economically infeasible.

2. Evidence about the Financial Resources of the Project Applicant Conflicts with the Finding of Infeasibility.

One factor to consider in determining economic infeasibility could be the resources available to the project applicant. Appellants claim “Town Staff was divided regarding the relevance of Jobs’ financial position” (AOB, p. 20, fn. 28) but Woodside’s special legal counsel believed that Jobs’ financial position was relevant. Woodside’s Special Counsel stated that to evaluate economic feasibility, Woodside would need to “look at costs” and “look at capability.” (4:1299). She also stated,

the means of the applicant [is] one way to consider [financial feasibility] . . . whatever judgment you make about the feasibility of an alternative . . . must be based on evidence of some kind. So we can’t just say ‘Oh, this alternative looks really costly. . . [T]he means of the applicant is one way to consider [financial feasibility], but you’re certainly not limited to that.

(3:840.)

The evidence in the record indicates that Jobs has the means to pay for any of the various alternatives, including the alternative of mitigating the loss of the Jackling House by moving it off-site. A statement by the Mayor of Woodside indicates that Jobs, the chief executive of Apple and Pixar (3:966) “has the means” to pay for mitigation, although the mayor viewed mitigation costs as unreasonable. (4:1383.)

Appellants claim that the decision in MODE, supra, 124 Cal.App.4^th 430, establishes that the financial situation of a project applicant is never relevant to determining economic infeasibility. (AOB, p. 20.) This is incorrect. In MODE, the Court evaluated the evidence about the economics of a commercial retail center. Since it was a commercial activity that presumably would not be undertaken were it not profitable (initial investment recovered and exceeded by expected future income from the project), the Court stated:

The fact that a project costs too much to be profitable or cannot operate at a profit so as to render it impractical does not hinge on the wealth of its proponent. No proponent, whether wealthy or not, is likely to proceed with a project that will not be economically successful. But, if the project can be economically successful with mitigation, then CEQA requires that mitigation, regardless of the proponent's financial status. (Ibid.)

(MODE, supra, 124 Cal.App.4th at 449, emphasis added.) For a commercial venture such as the proposed distribution center in MODE, where a profitable return on an investment is required, the wealth of an applicant may be irrelevant since an unprofitable venture would not be undertaken by any applicant. The Court stated that a finding of the impracticality of a commercial project “does not hinge on wealth of [the project] proponent” but this does not foreclose the possibility that it may be relevant in other contexts. Since the profit motive is not implicated in Jobs’ decision about his personal residence, a single family residence could be built in an “economically successful” way with relocation as mitigation. MODE thus supports Respondent’s position: “if the project can be economically successful with mitigation, then CEQA requires that mitigation.” (Ibid., emphasis added.)

3. Evidence about Possible Outside Funding Sources Conflicts with the Finding of Infeasibility of the Relocation Alternative.

Evidence regarding potential third-party funding that could augment the resources of the project applicant should be considered before rejecting the economic feasibility of alternatives. The possibility that outside funding sources may be available is especially important, since Appellants raise the specter of a takings claim, as discussed below. However, in this case, there was no independently corroborated evidence to show that the availability of third party funding, specifically for the relocation alternative, was unlikely. Rather, uncontradicted evidence showed that it was likely and therefore feasible.

Appellants in their brief tellingly omit any mention that Woodside’s Planning Director pointed to relocation as a feasible alternative, noting “the level of interest” that an “undirected marketing campaign” had generated in potential relocation. (4:1301.) The list of inquiries about potential relocation was provided to Woodside by Jobs’ counsel, so Appellants cannot dispute its veracity. (3:1302.) The list was extensive. (3:1119-1123.) It likely included people whose business is to acquire historic properties, relocate and refurbish them, then sell them at a profit, since there is a market for historic homes. One inquiry came from a person who “had done restoration of [George Washington] Smith homes” and was “Currently moving 2 residences off property owned by Ty Warner (of Beanie Baby fame).” (3:1121.) Two other callers were noted as “not put off” or “not shocked” at the estimate to move the House. (3:1122.) The summary of the list stated ten callers were “Probably serious and possibly able to actually relocate and reassemble.” (3:1123.) Counsel for Jobs tellingly informed the Town Council that although some callers were “tire kickers”, on the other hand, “some of them [people expressing interest in relocation] I’ve talked to and I think they are serious and could capably do the [relocation] job.” (4:1315.) Therefore, the evidence that relocation was a feasible alternative was supplied by Jobs’ counsel and was uncontradicted by any facts in the record.

Based upon the level of interest in relocation, Woodside’s Planning Director stated:

And maybe if in the intervening time [between the Planning Commission decision and Town Council meeting] I hadn’t seen the level of interest and you have the list of the phone calls and the people who have contacted them, the 60 people, if we hadn’t seen that level of interest, I might be mulling it [relocation] over a little more. But I just feel like it’s something that truly is feasible.

(3:1302.)

Woodside imposed as a condition of approval of the demolition permit that the House be held open for sale and relocation for one year. (3:906 [requiring effort to “market the estate”]; 4:1397.) Appellants admit that the conditions imposed upon approval of demolition, including requiring that the House be “made available” for potential relocation, “had the potential to restore the Residence in a new location.” (AOB, p. 35.) Thus, by their own admission, relocation (whether funded by Jobs, a third party, or a combination of the two) was a feasible option. Yet the relocation of the House was not made a mandatory mitigation measure, but just an open possibility for one year.

Woodside staff pointed out that “[t]he property owner owns an adjacent property at 95 Robles Drive. This may be a logical site for the structure.” (3:1174.) Appellants contend that relocation could cost more than the $700,000-$800,000 estimated in the EIR, depending on the destination location (AOB, p. 20), but how much more is a matter of complete speculation. Moreover, other historic structures in Woodside have been successfully relocated and rehabilitated within Woodside, which supports the conclusion that such activity is feasible. (3:1174 [including relocation and rehabilitation of the Mathison House “to accommodate the Town’s History Museum”].)

Though the imposition of the condition requiring the House to be marketed for relocation for twelve months was a step in the right direction, unfortunately it was not adequate to ensure compliance with CEQA, as the ability to evaluate the feasibility of relocation proposals was within the sole control of Jobs, not the Town Council, as it could have been. The Town Council had no information about what any of the interested parties may have been willing to invest as part of a relocation project when it determined that relocation was infeasible, since Woodside’s Town Council prematurely approved the project without requiring the submission of any evidence about the content of the responses to Woodside’s conditional requirement “to market the estate.” (3:906; 4:1397.) As one Councilmember correctly observed “there’s really no incentive in there to force Jobs to move [the House]. That is if he just plays hard to get for a year, then it gets torn [down].” (4:1316.) Jobs’ attorney successfully opposed removing the time limit from the relocation condition. (Ibid.)

4. Jobs’ Opposition to Alternatives is not Substantial Evidence that they Are Infeasible.

Appellants claim that Jobs’ “stated unwillingness to undertake restoration” is itself substantial evidence in support of an infeasibility finding. (AOB, p. 30, fn. 38.) They compound this faulty position with the erroneous assertion that substantial evidence can be “. . . nothing more than pure opinion”. (AOB, pp. 23-24, fn. 30, citing Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4^th 903.) However, Pocket Protectors rebuts, rather than supports, Appellants’ claim by confirming that “mere argument, speculation, and unsubstantiated opinion, even expert opinion, is not substantial evidence for a fair argument.” (Id. at 928-929.) Appellants confuse apples and oranges in claiming that an applicant’s unwillingness to accept an alternative is substantial evidence similar to a layperson’s fact-based opinion that a proposed project may have a significant environmental impact based on aesthetics, or traffic, or some other matter within their personal knowledge. The questions are manifestly not parallel.

Substantial evidence “may include facts, reasonable assumptions predicated upon facts, and expert opinion supported by facts, but not argument, speculation, unsubstantiated opinion, or clearly erroneous evidence." (San Franciscans, supra, 102 Cal.App.4th at p. 675, citing Pub. Resources Code §§ 21080 (e) and 21082.2 (c).) As to the legal question of the feasibility of project alternatives, substantial evidence must be directed to the question of whether or not an alternative is “capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technological factors.” (Pub. Resources Code § 21061.1.) The assertions of Jobs and his attorney that all alternatives are infeasible, with no supporting evidence, do not address the question at hand and are irrelevant argument and unsubstantiated opinion. As such, they are not substantial evidence on which Woodside could base its decision. (See Sierra Club v. County of Napa (2004) 121 Cal.App.4th 1490, 1507, fn. 6 [“We view Beringer’s [the proponent’s] letter more as argument than as evidence. . . .”])

Appellants claim Association of Irritated Residents v. County of Madera (“AIR”), (2003) 107 Cal.App.4^th 1383 and Foundation for San Francisco’s Architectural Heritage, supra, are “precisely on point” in support of their assertion that opinions are evidence. (AOB, p. 30, fn. 38.) Appellants are incorrect. In both of those cases, the “stated unwillingness” of project applicants was corroborated by objective financial data. In AIR, supra, 107 Cal.App.4^th 1383, a real party in interest presented factual evidence to corroborate his assertion of economic infeasibility at the hearing on the FEIR. The Court explained:

He presented an economic analysis demonstrating a negative economic return on the reduced-herd size alternative. He also presented a letter from the lending institution that was financing construction of the dairy ... The lender wrote that the reduced-herd-size alternative would not be economically feasible because it would not "generate enough cash flow to service debt on the startup operation," and that it would not finance construction of the dairy if the reduced-herd-size alternative were adopted.

(Id. at 1399-1400.) So the real party in interest in AIR, in stark contrast to the present case, presented an economic analysis and a letter from a lender to corroborate his opinion that an alternative was economically infeasible. Jobs presented no such analysis or lender letter to corroborate his opinion of economic infeasibility. He was simply disinclined to pursue alternatives.

A project applicant’s opinion about the expense of an alternative, with nothing more, cannot constitute substantial evidence to reject its feasibility because an applicant’s opinion is a subjective standard, wholly within the control of the applicant. CEQA requires objective examination of evidence, not reliance upon a project applicant’s opinion of the propriety of the expense of mitigation measures or alternatives. A project applicant’s predilections cannot be determinative of the feasibility of alternatives:

Since CEQA charges the agency, not the applicant, with the task of determining whether alternatives are feasible, the circumstances that led the applicant in the planning stage to select the project for which approval is sought and to reject alternatives cannot be determinative of their feasibility. The lead agency must independently participate, review, analyze and discuss the alternatives in good faith.

(Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692, 736, emphasis in original.)

No applicant would prefer a project that is more expensive, less profitable, more inconvenient, or indeed anything other than his or her preferred design. The applicant will understandably be biased in favor of obtaining his own project objectives. (Foundation for San Francisco’s Architectural Heritage v. City and County of San Francisco (1980) 106 Cal.App.3d 893, 907 [“CEQA assumes as inevitable an institutional bias within an agency proposing a project. . . “]) The applicant must provide sufficient data, information, and reports to allow the agency to independently perform its reviewing, analytical, and judgment functions. (Id. at 908.) There is no authority for the proposition that an applicant’s opposition is the equivalent of a showing of economic infeasibility. Appellants unreasonably seek to have this Court create just such authority.

Respondents’ reliance on authorities such as Greenbaum v. City of Los Angeles (1984) 153 Cal.App.3d 391, and No Slo Transit v. City of Long Beach (1987) 197 Cal.App.3d 241, for the proposition that an agency is permitted to choose between conflicting evidence (AOB, p. 24) is unavailing. In this case, there was no conflicting evidence because there was no credible evidence that all of the alternatives were infeasible. Woodside had evidence of the cost of the alternatives, such as relocation, but such evidence “is not sufficient to show that the alternative is financially infeasible.” (Citizens of Goleta Valley, supra, 197 Cal.App.3d at 1181, emphasis added.) In Citizens of Goleta Valley, “The scant figures contained in the administrative record [were] not sufficient to support such a conclusion.” (Ibid.) In this case, there are no figures at all beyond the cost of alternatives.

C. Conditioning the Grant of a Demolition Permit on Implementation of Preservation or Relocation Alternatives Was Not “Legally Infeasible.”

1. Woodside Had Discretion to Deny the Demolition Project.

Appellants repeatedly claim that alternatives requiring renovation or relocation were “legally infeasible” because they could not be imposed against Jobs’ will. (AOB, p. 16 [“Town lacked the power legally to require Jobs affirmatively to undertake the restoration that these alternatives required”]; see also pp. 13, 18, 25, 26, 29, 31, 37.) These assertions are incorrect and mischaracterize the nature of Woodside’s right to condition a demolition permit. Indeed, when one Town councilmember stated “We could deny their ability to tear [the House] down,” Jobs’ counsel agreed that was “Correct.” (4:1315-1316.)

The ability to deny or condition a demolition permit is clear:

As long as a demolition permit process is not conditioned on or tied to a regulation restricting the right to withdraw residential units from the rental market, a government agency retains such discretion to deny a demolition permit under its police power with respect to land use.

(First Presbyterian Church of Berkeley v. City of Berkeley (1997) 59 Cal.App.4th 1241, 1257, emphasis added.)

Appellants refer to the demolition permit as “normally a ministerial act” (AOB, p. 15), but omit mention of Woodside’s requirement for discretionary Preliminary Design Review. (2:516.) Woodside’s decision to grant or deny the demolition project was discretionary, not ministerial, because it required Preliminary Design Review by the Architectural and Site Review Board. (2:515.) Preliminary Design Review was required under section 153.221 (D)(5) of Woodside’s Municipal Code. (2:516.) Appellants’ citation to Prentiss v. City of South Pasadena (1993) 15 Cal.App.4^th 85, 94-95 (AOB, p. 28) highlights the importance of Woodside’s Code requirement for architectural review. In Prentiss, as Appellants note, a city could not exercise architectural control over construction of an addition to a residence because it lacked a preservation ordinance. Here, Woodside has an architectural review ordinance that gives Woodside discretion to deny the permit.

Because public agencies reviewing discretionary projects always have the power to deny the project, so long as such denial does not run afoul of constitutional prohibitions, the agencies have the power to approve the projects subject to conditions. (Friends of Westwood, Inc. v. City of Los Angeles (1987) 191 Cal.App.3d 259, 273.) Appellants cite Public Resources Code section 21004 (AOB, p. 28) to claim no affirmative obligation “flows independently from CEQA”. What they fail to recognize is that the same section states “However, a public agency may use discretionary powers provided by such other law for the purpose of mitigating or avoiding a significant effect on the environment subject to the express or implied constraints or limitations that may be provided by law.” (Pub. Resources Code § 21004.) While Woodside may not be able to force Jobs to relocate or rehabilitate the House, it may withhold its approval of the demolition project unless such preservation conditions are accepted.

Appellants correctly note that in AIR, supra, 107 Cal.App.4^th 1383, the County “had the power to compel the applicant ... to accept a reduced maximum herd size ...” (AOB, p. 18, fn. 25.) The county in that case had exactly the same power to “compel” the applicant to maintain a reduced herd size as Woodside has in this case to “compel” Jobs to accept a less damaging alternative if he wishes to obtain approval for his new house.

2. No Statute, Guideline, or Constitutional Provision Prohibits Imposing Conditions on Approval of Demolition.

Appellants cite no guideline, statute, or constitutional provision that would prevent Woodside from conditioning its discretionary approval of the demolition and new house project. Appellants cite Sequoyah Hills Homeowners Assn. v. City of Oakland (1994) 23 Cal.App.4^th 704, 714-715 for the principle that an “alternative is not feasible where there is no way legally to implement it.” (AOB, p. 27, fn. 34.) The “legal way” in which a public agency can implement mitigation measures it could not otherwise impose is by conditioning its approval of discretionary projects on the applicant’s implementation of those measures (Pub. Resources Code § 21004), as discussed above. Otherwise, the project may be denied.

In Sequoyah Hills, there was a specific statutory prohibition against conditioning approval of a project on a reduction in density. Such a condition would have violated Government Code section 65589.5, subdivision (j) that provides: “When a proposed housing development project complies with the applicable general plan, zoning, and development policies,” a local agency may not require as a condition of approval that the project be developed at a lower density, unless the project “would have a specific, adverse impact upon the public health or safety” that cannot be mitigated without lowering the density. (Gov. Code, § 65589.5, subd. (j)(1).) There is no similar prohibition on denial of the demolition permit involved in this case. In fact, Appellants have not identified any statutory prohibition on the imposition of mitigation measures or alternatives requiring rehabilitation or relocation in this case.

Appellants imply that there would be a constitutional prohibition on denial or conditioning of a demolition permit when they state “[a]t least one court has stated that denying a homeowner beneficial use of his property unless she first undertakes extensive and expensive renovation would constitute an unconstitutional taking.” (AOB, p. 28, fn. 36, citing State, By Powderly v. Erickson (Minn. 1981) 301 N.W. 2d 324[5].) Denial or conditioning of a demolition permit would not deny Jobs the beneficial use of a house on his property, and so it could not be a taking. Jobs used the House as a residence for approximately 10 years and his friends leased it as such for several more. (3:820.) He could continue its residential use.

Since an economically viable use of a property as a single family residence remains, there can be no taking. (Penn Cent. Transp. Co. v. City of New York (1978) 438 U.S. 104, 138 [“New York City's Landmarks Law has not effected a ‘taking’ of appellants' property” where its restrictions “permit reasonable beneficial use of the landmark site. . . .”]) Penn Central is the seminal evaluation of a takings claim in the context of preservation of a historic resource. [6] In Penn Central, the owners of Grand Central Terminal planned to build a tower in excess of 50 stories on top of the historic terminal. After the Landmarks Preservation Commission rejected the plans, the owners brought suit to declare the New York Landmarks Preservation Law unconstitutional.

Among other holdings, the United States Supreme Court held there was no unconstitutional taking of property since there was no interference with the owners’ present use of the building as a terminal, as it had been so used for 65 years. Penn Central and its progeny demonstrate that the state’s objective of preserving structures of historic significance is “an entirely permissible governmental goal” (id. at 129) and that possible diminution of property value caused by the historic designation that prevents demolition does not establish a taking (id. at 131). Notwithstanding the readily distinguishable opinions such as Benenson v. United States (1977) 548 F.2d 939, and Erickson, cited by Appellants, Penn Central shows that denial or conditioning of the demolition permit would not be a taking.

3. Denial of a Demolition Permit Is Not the Same as Imposing an Affirmative Obligation to Preserve the House.

Unable to identify a single statute, regulation or constitutional prohibition that would prevent Woodside from conditioning its approval of the demolition project, Appellants assert “the Town lacked the legal authority to require Jobs to undertake any of the restoration alternatives- a key fact beyond dispute.” (AOB, p. 13, p. 16, fn. 24, p. 25 [Town could not place an “affirmative obligation on Jobs to restore and rehabilitate.”])

Contrary to Appellants’ repeated assertions, denial or conditioning of a demolition permit is of course not the same as affirmatively requiring Jobs to undertake restoration or relocation. Jobs would only be required to relocate or restore the House if he wished to rely on the permit. As discussed above, Woodside certainly can condition its discretionary approval on relocation or restoration, so long as those requirements do not violate constitutional protections. Indeed, under CEQA, in light of the findings made in the EIR, it is required to do so unless the alternatives or mitigation measures are infeasible.

Appellants irrelevantly refer to the “demolition by neglect” discussion in a factually distinct[7] takings case (AOB, p. 29, fn. 29), and dispute that Jobs can be “required to maintain” his property by Woodside. (AOB, p. 30.) Appellants’ claim that Woodside can do nothing to remedy the rundown condition of the Jackling House-- or for that matter, any rundown, unmaintained house in Woodside-- is irrelevant and wrong. “[The Supreme] Court has recognized, in a number of settings, that States and cities may enact land-use restrictions or controls to enhance the quality of life by preserving the character and desirable aesthetic features of a city. . . .” (Penn Cent., supra, 438 U.S. at 129.) However, as Appellants state (AOB, p. 30), this is not an issue in this case.

II. WOODSIDE’S Statement of Overriding Considerations is Not supported by substantial evidence.

A. CEQA Requires Specific Findings Supported by Substantial Evidence for the Statement of Overriding Considerations.

Even if Woodside’s findings that all alternatives are infeasible were valid and were supported by substantial evidence, there is not substantial evidence supporting the statement of overriding considerations. (4:1396.)

In any event, subdivisions (a) and (b) of section 21081 when read together make clear the development agency must find mitigation measures are infeasible and the benefits of the project outweigh the unmitigated effects on the environment.

(Los Angeles Unified School Dist. v. City of Los Angeles (1997) 58 Cal.App.4th 1019, 1030.) If significant impacts still remain after adoption of mitigation and alternatives, the project may be approved only with a statement of overriding considerations, which must in turn be supported by substantial evidence in the record. (Sierra Club v. County of Contra Costa (1992) 10 Cal.App.4th 1212, 1222.) CEQA requires

In making the findings required by paragraph (3) of subdivision (a) of Section 21081, the public agency shall base its findings on substantial evidence in the record.

(Pub. Resources Code § 21081.5.)

The explanation for why a statement of overriding considerations must be supported by substantial evidence given in Village Laguna of Laguna Beach v. Board of Supervisors of Orange County (1982) 134 Cal.App.3d 1022 is highly pertinent to the present case, since in that case the Court held an EIR for a large housing development project complied with CEQA, but the county’s findings supporting approval based on a statement of overriding considerations were not supported by substantial evidence. The Court explained:

[T]he purposes of section 21081 are that there be some evidence that the alternatives or mitigation measures in the EIR actually were considered by the decision making agency and, as the Supreme Court stated in a similar situation, that there be a disclosure of ‘the analytic route the . . . agency traveled from evidence to action.’ [Citations.] Thus, when a project is approved that will significantly affect the environment, CEQA places the burden on the approving agency to affirmatively show that it has considered the identified means of lessening or avoiding the project's significant effects and to explain its decision allowing those adverse changes to occur. [¶]

. . . . Additionally, even though the board may have fully considered the EIR and made a wise and eminently rational decision in approving the proposed project, the board's thinking process, its ‘analytic route,’ has not been revealed. Only by making this disclosure can others, be they courts or constituents, intelligently analyze the logic of the board's decision.

(Id., at pp. 1034-1035, emphasis added; accord, Resource Defense Fund v. Local Agency Formation Com. (1987) 191 Cal.App.3d 886, 896- 898; see also Cleary v. County of Stanislaus (1981) 118 Cal.App.3d 348, 361-362; Citizens for Quality Growth v. City of Mt. Shasta (1988) 198 Cal.App.3d 433, 441.)

Woodside’s failure to explain its findings is similar to the defective statement of economic infeasibility in Village Laguna, where the Court reasoned:

Although the Board stated that the “No Development” alternative was economically infeasible, it did not explain why it found the alternative economically infeasible. Such was required by Guidelines section 15088(a) which mandates that the Board’s finding be ‘accompanied by a statement of the facts supporting each finding.’

(Village Laguna, supra, 134 Cal.App.3d at 1034.) At the time of the Village Laguna decision, Guidelines section 15088 provided the pertinent requirement for a statement of facts supporting each finding. Current Guideline section 15093 (b) provides a similar statement:

When the lead agency approves a project which will result in the occurrence of significant effects which are identified in the final EIR but are not avoided or substantially lessened, the agency shall state in writing the specific reasons to support its action based on the final EIR and/or other information in the record.

(Guidelines § 15093 (b), italics added; see County of San Diego v. Grossmont-Cuyamaca Community College District, supra, slip opinion, pp. 16-17.)

B. Woodside’s General Plan Supports Preservation, Not Demolition, of Historic Resources.

Appellants contend that cases establish that general plan policies provide ample support for findings of overriding considerations. (AOB, p. 32.) As a general legal principle, that may be true. However, on the facts of this case, there is no support in the Woodside General Plan for demolition of a historic structure in order to create open space.

The Woodside General Plan overwhelming supports preservation of the historic Jackling House. The EIR’s discussion of the General Plan states that the demolition project is “Potentially inconsistent” with General Plan policy P25 which states “Structures of historic or architectural significance shall be identified and documented, and efforts shall be made to preserve them.” (2:527.) The EIR further states

Depending on their specific design characteristics, Alternatives 2, 3, and 4 might meet the applicant’s objectives of construction of a single family residence on the site.

(2:527.) Thus, the only discussion of General Plan policies in the EIR finds demolition potentially inconsistent with the General Plan, and that alternatives to demolition might meet the applicant’s objectives. The EIR does not discuss how the project would purportedly implement the Open Space or other General Plan elements, though it discusses the lack of information about future construction:

Although the applicant has indicated his intent to clear the site for purposes of construction of a single-family residence, the specific details of that residence have not been submitted to the Town.

(2:522.)

The foundation of the statement of overriding considerations adopted by Woodside is that granting of the demolition permit is based upon Woodside's existing General Plan: “[Tlhe Town Council finds that, as conditioned, the project will provide a public benefit in implementing the Town's General Plan”. (4:1393 and 1397.) The specific findings and reasons as the basis for the “overriding considerations” focus on the public benefit of open space. (4:1398.) However, Woodside’s approval of demolition of an historic structure without mitigating the significant impact of its loss is contrary to numerous specific policies of its existing General Plan. The General Plan does not provide a basis for approving demolition in order to replace it with a structure of completely unknown look, style, shape, size, color, design, layout or height.

The trial court provided a lengthy explication that the General Plan encourages preservation and does not provide any basis for a finding that the approval of demolition of historic resources creates open space within the meaning of the General Plan. (JA, pp. 139-141.) The General Plan does discuss open space, and it is very specific about what “open space” means. It does not mean an area of private property cleared by demolition of an existing structure. “Open space uses indicated on the General Plan Diagram are defined and described in the Open Space Element.” (3:1436.) These do not include the Jackling House or grounds.

The trial court correctly found that the General Plan provides that “open space” has to do with areas of land that are not already improved with structures. (JA 140-141, citing 4:1414, 1427, and 1442.) Based upon General Community Goals G1 and G2, General Policies P11, P25, Land Use, Community Design and Aesthetics P9, Open Space policy G6, and Housing policy G5, the trial court noted that the major themes that emerge in the General Plan are of conservation, preservation, and certainly maintenance of existing structures. (JA 139-140.) Appellants completely fail to address the overwhelming import of these policies favoring preservation, not demolition, of historic resources. These fundamental, mandatory policies of the General Plan cannot be disregarded. (See Families Unafraid to Uphold Rural Etc. County v. Board of Supervisors (1998) 62 Cal.App.4th 1332, 1342.)

Appellants do not discuss or quote a single specific policy of the General Plan. Rather, Appellants cite a set of goals and policies that promote preservation and conservation as “important declarations of policy.” (AOB, p. 33, citing 4:1397-1398.) However, Appellants do not discuss what the specific declarations actually say. One of the specific goals is “To conserve open space resources. . . .” (4:1398.) Such a goal does not promote creating open space by demolishing a structure that already exists, especially an historic structure. Another specific goal Appellants cite is “To protect the natural beauty . . . of the natural terrain.” (4:1398.) Again, such a goal does not include creating natural beauty or natural terrain in place of an historic structure that currently exists, especially when another structure, of unknown design, will replace a large portion of that structure. This is not a matter of “reconciling superficially conflicting policies” or Woodside exercising “broad latitude in interpreting and applying its legislative enactments.” (AOB, p. 33.)

There are no General Plan policies in Woodside that can reasonably be interpreted to advocate clearing historic structures to create open space. To conclude that the General Plan would promote the creation of open space through the demolition of an historic structure would require a cynical and illogical reading. Faced with a similar assertion of the beneficial results flowing from construction over the top of the historic Grand Central Terminal in New York City based upon the new construction’s consistency with land use designations, the Supreme Court stated:

The suggestion that the beneficial quality of appellants’ proposed construction is established by the fact that the construction would have been consistent with applicable zoning laws ignores the development in sensibilities and ideals reflected in landmark legislation like New York City’s.

(Penn Central, supra, 438 U.S. at 134.)

In Sierra Club v. Contra Costa County, supra, 10 Cal.App.4^th at 1224, the Court of Appeal held that a statement of overriding considerations was invalid because three of twelve asserted benefits of a project were unsupported by substantial evidence. The Court explained, “Insofar as the statement provides a written account of the balancing process undertaken by the County it is substantively infirm.” (Ibid.) Similarly, in the present case, as Woodside’s Special Counsel pointed out, “. . . I don’t think there’s anything in this case or record that says that demolition would give the Town any kind of economic benefit anyway.” (4:1297.) The Planning Director unequivocally stated that “Staff does not find that the project as proposed offers any benefits that would allow the Town Council to adopt a statement of overriding consideration.” (4:1280, emphasis added.) Two members of the public noted that “the Applicant failed to substantiate any public benefit, be it aesthetic or environmental.” (3:1199.)

Appellant claims that Dusek v. Redevelopment Agency (1985) 173 Cal.App.3d 1029, supports its argument. (AOB, p. 32, fn. 40.) However, this case is clearly distinguishable. Whereas in Dusek, a redevelopment agency had to approve demolition of a historic hotel in order to “improve the environmental quality of a blighted area” (id. at 1038), the Jackling House sits in one of the most highly desirable and expensive residential areas in the country, and Woodside’s General Plan calls for preservation of historic buildings.

C. Woodside’s Conditions of Approval Do Not Convey a Benefit Supporting Demolition.

Appellants contend that the conditions placed upon demolition somehow convey a benefit sufficient to support a statement of overriding considerations. (AOB, p. 31.) Rather than supporting a statement of overriding considerations, the “conditions" support the conclusion that the decision of Woodside was arbitrary and capricious. For example, Woodside made a finding that the EIR alternative to relocate the House to another site was not feasible, and yet as a condition of approval required that efforts be made to see if the House could be relocated to another site to a willing taker. In light of this condition, the findings of infeasibility made by Woodside were unsupportable.

Appellants say that the conditions imposed have “the potential to restore the Residence in a new location, thus meeting the objective of protecting an historic resource. . . .” (AOB, p. 35.) Although the demolition permit was delayed in order to allow relocation bids to be solicited (3:906; 4:1397), Jobs was the sole decision-maker in determining whether or not to accept any proposals for relocation, and after twelve months pass the relocation delay will expire. Woodside had no power to independently evaluate the proposals, since it already had granted approval of the demolition, and retained no ability to evaluate the feasibility of whatever proposals might come in. Thus, Woodside has no control over the “condition” or its implementation.

Appellants’ contention that denial of a demolition permit “would not save the Residence” (AOB, p. 34) is based upon a faulty assumption that the Jackling House would be destroyed one way or another. The premise is faulty because denial of a demolition permit would save the Residence from immediate demolition. Whether or not its continued deterioration due to the elements may be preventable, at least it would not be affirmatively and immediately demolished.

To claim that approval of demolition “is the most sensible, logical and practical solution to the issues raised by the Jobs application” (AOB, p. 35) is unsupported and absurd. Woodside could have required that the property be held open for bidding on restoration or relocation alternatives, and that only after that process was completed and Woodside could evaluate its results would it decide whether alternatives were indeed infeasible. Appellants again mix apples and oranges. Woodside has failed to adopt feasible mitigations and alternatives. The conditions of approval do not ensure that the Jackling House will be rehabilitated either on or off-site, and Appellants cannot show that the approval of demolition creates any significant benefit.

III. THE Findings OF Infeasibility and Overriding Considerations FAIL TO Disclose WOODSIDE’S Analytic Route.

Appellants appear to argue that any decisions of the Planning Commission or Town Council, no matter what they are, are entitled to weight as substantial evidence because they “are presumed to hold their positions because of their expertise.” (AOB, p. 25, fn. 32.) It need hardly be stated that the governing boards of public agencies sometimes make decisions that are not supported by substantial evidence, experts though they presumably may be. (E.g., Friends of the Eel River v. Sonoma County Water Agency (2003) 108 Cal.App.4th 859, 881 [public agency certifying legally deficient EIR]; Berkeley Keep Jets Over the Bay Com. v. Board of Port Cmrs. (2001) 91 Cal.App.4th 1344 [same].) The expertise of the members of a governing body does not transform their votes upon projects into expert opinions that constitute substantial evidence to support their decisions where such evidence is otherwise lacking.

Despite the advice of its Planning Director and its special counsel that relocation was a feasible alternative, Woodside’s Town Council found that all alternatives, including relocation, were infeasible and adopted a statement of overriding considerations. However, it did not provide factual evidence to support such a conclusion, as required by Public Resources Code section 21081 and Guidelines section 15091. A public agency’s findings must disclose the “analytic route” used to reach a conclusion. (Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal. 3d 506, 515.)

Appellants profess reluctance to add to the length of their brief to argue the adequacy of the Council’s findings “as an explanation of its decision.” (AOB, p. 36.) But the record is not self-explanatory, and in any case the record does not show the facts and the inferences the Council relied upon to reach its conclusions about infeasibility and overriding benefits. As in Village Laguna, the Council’s attempt to explain the basis of its overriding considerations

was sufficient to show which ‘[s]pecific . . . social . . . considerations’ the board felt made the ‘No Development’ alternative infeasible, but it does not constitute ‘a statement of the facts’ supporting the finding. (Cf. Foundation for San Francisco's Architectural Heritage v. City and County of San Francisco, supra., 106 Cal.App.3d 893, 913-914.)

(Village Laguna, supra, 134 Cal.App.3d at 1034.)

IV. THE PERMIT MUST BE SET ASIDE.

Appellants make a remarkably disdainful argument that, even if there has been a violation of CEQA and significant adverse effects on a historic resource will occur, the demolition of the Jackling House should be allowed to proceed as if there were no violation. (AOB, p. 37.) In support of this position, Appellants cite Laurel Heights Improvement Assoc. v. Regents of University of California (“Laurel Heights I”) (1988) 47 Cal.3d 376.)

The Supreme Court in Laurel Heights I only permitted a project to proceed despite substantive inadequacies in an EIR prepared for research facility expansion project because there was “substantial evidence to support the Regents’ finding that the present activities will be mitigated.” (Id. at 424.) Therefore, after stating “A primary purpose of CEQA is to protect the environment,” the Supreme Court stated “we believe CEQA will not be thwarted by allowing UCSF to continue its present activities at Laurel Heights.” (Ibid.) In stark contrast, in the present case, significant impacts to demolition have not been mitigated despite the availability of feasible mitigations and alternatives but were overridden by Woodside without substantial evidence to support that decision. CEQA’s fundamental purpose of protecting the environment would be unmistakably thwarted if, despite a violation of CEQA, the demolition permit was not set aside.

There is an enormous difference between the continued use of an existing building, as in Laurel Heights I, and demolition of an historic resource. The Jackling House is historically significant and is eligible for listing on the California Register of Historical Resources (CRHR). (2:533) The House is an impressive example of Spanish Colonial Revival architecture. (2:534-535.) Once demolished, the unique historic structure would be gone forever.

Appellants imply that the demolition of a significant historic resources is only marginally important or barely cognizable under CEQA as they irrelevantly assert that “no EIR would be required to consider or evaluate any environmental impacts but for the finding that the Residence would be eligible for listing on the CRHR. . .” (AOB, p. 36.) More irrelevantly, Appellants note that “demolition of the Residence will cause no other adverse environmental impacts,” (AOB, p. 36) as if historical resource impacts are not significant in and of themselves. Testifying in Woodside, counsel for Jobs confirmed that part of his argument was that an “EIR never should have been prepared.” (3:829.) However, he acknowledged there had been a chance to appeal the decision to prepare an EIR but no appeal had been filed. (3:830.) The applicability of CEQA and the significance of the impact may not be challenged at this late date. (Pub. Resources Code § 21167.2 [EIR conclusively valid if not challenged].) It is too late for Appellants to question the historic significance of the Jackling House, the necessity for an EIR to consider the feasibility of alternatives to demolition, or the importance of historical resources in California.

Appellants decry the issuance of a writ to ensure compliance with CEQA as accomplishing “nothing other than the promotion of sterile process for its own sake.” (AOB, p. 38.) This is nonsensical, as the survival of an historic resource is here at stake. Compliance with CEQA’s procedural requirements is the only way to fulfill the Supreme Court’s mandate that “We can and must . . . scrupulously enforce all legislatively mandated CEQA requirements.” (Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 564; accord Friends of the Eel River v. Sonoma County Water Agency (2003) 108 Cal.App.4th 859, 868.) As the Supreme Court held thirty years ago in No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, a failure to follow CEQA’s requirements “would subvert the very purpose of the Act.” (Id. at 81.)

Contrary to Appellants’ characterization of giving Jobs, who has no interest in preserving the Jackling House, the sole ability to evaluate the proposals that are received in response to the short-term relocation outreach process required as a condition of approval as “the best equitable compromise” or the “best practical chance to preserve the Residence” (AOB, p. 38), the best possible chance for preservation of the Jackling House is if CEQA is scrupulously observed and the demolition permit is denied. The San Mateo Superior Court correctly determined that the approval of the demolition permit was unlawful because it will have a significant environmental impact, there are feasible mitigations and alternatives, and there are no overriding public benefits to demolition.

Only by requiring the [sponsoring agency] to fully comply with the letter of the law can a subversion of the important public purposes of CEQA be avoided, and only by this process will the public be able to determine the environmental and economic values of their elected and appointed officials, thus allowing for appropriate action come election day should a majority of the voters disagree.

(People v. County of Kern (1974) 39 Cal.App.3d 830, 842.)

Since Woodside has failed to proceed in a manner required by law, the demolition permit it approved in error must be set aside. (Sierra Club v. County of Napa (2004) 121 Cal.App.4th 1490, 1497.) “Full compliance with the letter of CEQA is essential to the maintenance of its important public purpose.” (Environmental Protection Information Center, Inc. v. Johnson (1985) 170 Cal.App.3d 604, 622.)

CONCLUSION

By approving the demolition of the historic Jackling House when the EIR process identified feasible alternatives and the record contains no substantial evidence that all alternatives are infeasible or that the benefits of the project outweighed the significant impacts, Woodside has abused its

discretion. The Judgment should be affirmed to uphold the integrity of CEQA and to prevent the loss of the Jackling House.

DATED: July __, 2006 Respectfully Submitted,

CHATTEN-BROWN & CARSTENS

By: _____________________________

Douglas P. Carstens,

Attorneys for Respondent,

UPHOLD OUR HERITAGE

[1] Though designated as an alternative in the EIR, moving the Jackling House off-site is really a mitigation measure for the project. The Supreme Court noted that alternatives “are a type of mitigation.” (Laurel Heights Improvement Assoc. v. Regents of University of California (1988) 47 Cal.3d 376, 403.) For simplicity, Respondent will refer to the preservation options as “alternatives” rather than alternatives and mitigation measures.

[2] While review is de novo, Respondent references the well-reasoned decision of Judge Weiner for its objective and comprehensive explication of the factual and legal issues in light of the whole record. Appellants go too far in arguing that the reasoning by which the trial court reached its conclusions “should be irrelevant”. (AOB, p. 14.) Treating de novo review as if the trial court's ruling in a CEQA case is merely a ticket of admission to the Court of Appeal improperly denigrates the trial court’s role. (See Koster v. County of San Joaquin (1996) 47 Cal.App.4th 29, 44-45 [“in many [CEQA] cases, trial courts provide us with a thorough written opinion which helps to clarify issues for appeal”].)

[3] Preservation Action Council of San Jose v. City of San Jose, County of Santa Clara Superior Court case number 1-04-CV-012829 (Honorable Leslie C. Nichols presiding).The case is currently on appeal in the Sixth District Court of Appeal, case number H028201 and was heard on June 12, 2006. The Town’s Special Counsel put the case into the record (4:1283) and it is included in the joint appendix. (JA 157-180.)

[4] A copy of this slip opinion is concurrently lodged.

[5] Erickson involved efforts to preserve the so-called Red Wing Irish Row Houses pursuant to Minnesota's Environmental Rights statute. Interestingly, despite the statement cited by Appellants, the Court in Erickson found that an injunction to prevent demolition was properly issued because of the historic value of the property.

[6] The Supreme Court recently reaffirmed the validity of Penn Central’s analysis. (Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency (2002) 535 U.S. 302, 315.)

[7] In Benenson v. U.S. (1977) 548 F. 2d 939, the Court of Claims found that the governmental action designed to prevent demolition of the Willard Hotel in Washington, D.C. so as to facilitate acquisition constituted a taking. Attempts by the owner to seek approval for new uses were frustrated because of the government's desire to acquire the property.

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OTHER STATUTES

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