The Fourth District Court of Appeal held that the project baseline under CEQA for construction of a new home should not have been set prior to demolition of a potential historic structure when the demolition had occurred before submittal of a permit application to build the new home. Bottini v. City of San Diego, No. D071670 (4th Dist., Sep. 18, 2018).

The Bottinis applied to the City for a Coastal Development Permit (CDP) to construct a single-family home on a vacant lot. City staff determined that the project was categorically exempt from environmental review under CEQA’s Class 3 exemption for construction of a single-family home. On appeal, however, the City Council found that full environmental review was necessary because the Bottinis had demolished a 19th century cottage named Windemere on the lot shortly before applying for the CDP. The City had itself previously concluded that Windemere was not a historic resource, declared the structure to be a public nuisance, and authorized the Bottinis to demolish the cottage. Nevertheless, the City Council retroactively declared the cottage “historic,” concluded that the demolition should be considered part of the new home project, and found that there was a reasonable possibility that CEQA’s “historical resources” and “unusual circumstances” exceptions precluded use of the categorical exemption.

The Bottinis sued, contending that the City’s baseline determination violated CEQA and the City’s decisions regarding the historic status of Windemere and the extent of the required environmental review violated the Bottinis’ due process rights and resulted in a regulatory taking of their property.
Continue Reading CEQA Project Baseline Should Not Have Been Set Prior to Demolition of Historic Structure