Compensatory Mitigation Infeasible For Loss Of Historic Building

The Court of Appeal upheld the City's determination that compensatory mitigation for the loss of a historic building in the form of funding of other historic preservation was not feasible because there were no other buildings in the downtown areas with the same architectural style, period of significance, and purpose. Preservation Action Council of San Jose v. City of San Jose, 91 Cal. App. 5th 517 (2023), reh'g denied (May 10, 2023).

A project proposed by the City of San Jose included demolition of a bank, which was designated as a historic site. In response, San Jose proposed mitigation measures such as physical documentation and salvaging efforts in its supplemental environmental impact report (SEIR). Plaintiffs sued, claiming the City (1) failed to identify, analyze, and impose compensatory mitigation and (2) failed to adequately respond to the comments submitted to the draft SEIR.