YOUNG v. STATE HISTORICAL RESOURCES COMMISSION (1979)

St. Anne's Home is a rest home for the aged poor, owned and operated in San Francisco by The Little Sisters of the Poor. The Little Sisters had been notified that St. Anne's Home does not comply with modern seismic and life-safety standards applicable to licensed health care facilities. The Little Sisters determined that they would demolish the existing building and replace it with a new facility. Appellant is a homeowner and taxpayer in the City and County of San Francisco. She nominated St. Anne's Home for placement in the National Register of Historic Places on the basis of its architectural and social significance. The State Historical Resources Commission (hereinafter “HRC”) considered the matter at a public meeting and voted to recommend the home for nomination to the National Register. Respondent Knox Mellon, the State Historic Preservation Officer,¹ declined to forward the nomination to the National Register, giving as reasons “extenuating and humanitarian circumstances.” Appellant thus brought this action, seeking a writ of mandate to compel the nomination of St. Anne's to the National Register. She appeals from the judgment denying the writ.

A. Did the trial court err in concluding that the SHPO has discretion as to whether a nomination will be made to the National Register?

In its conclusions of law, the trial court stated: “The State Historical Resources Commission is an advisory body only with respect to proposed National Register nominations. Its sole authority with respect to such nominations is to review them and make recommendations to the State Historic Preservation Officer.” The court also concluded that “[r]espondent Mellon, as State Historic Preservation Officer, has sole and final authority to nominate or not to nominate a particular property to the National Register of Historic Places in the exercise of his sound discretion …”

Appellant argues that, once the HRC has made a recommendation for nomination to the National Register, the SHPO has no discretion in the matter and must perform the “purely ministerial” duty of conveying the nomination to federal authorities. Amicus Foundation For San Francisco's Architectural Heritage joins appellant in this argument.

In the Public Resources Code, it is provided that one of the duties of the HRC is to “[r]eceive and evaluate applications for, and make recommendations with respect to entries on the National Register of Historic Places to the State Historic Preservation Officer.” (Pub.Resources Code, § 5020.4, subd. (a) [[[[emphasis added].) “The word ‘recommendation’ in its common usage refers to an action which is advisory in nature rather than one having any binding effect.” (People v. Gates (1974) 41 Cal.App.3d 590, 599, 116 Cal.Rptr. 172, 178.) In Fletcher v. Porter (1962) 203 Cal.App.2d 313, at page 317, 21 Cal.Rptr. 452, at page 454, the court indicated “To recommend does not mean to bind.” It is clear that the above emphasized language indicates that the actions of the HRC regarding applications for placement on the National Register are only advisory to the SHPO. On the basis of California statutory law, therefore, respondent Mellon had no mere “ministerial duty” to convey nominations to federal authorities without exercising independent review of the application. Consideration of pertinent federal regulations casts further light upon the scope of the SHPO's power. (Cf. Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 260, 104 Cal.Rptr. 761, 502 P.2d 1049.)

In the Code of Federal Regulations, it is stated that “[i]mplementation of the National Historic Preservation Act of 1966 is [to be] accomplished primarily by the State Historic Preservation Officers …, who are responsible for administering the National Register program within their jurisdictions.” (36 C.F.R. § 60.5, subd. (a) (1977).) Thus, the SHPO is the official who oversees the National Register program at the state level. Regarding the nomination process, the regulations provide: “Nomination forms approved by the State review board [in California, the HRC] are reviewed by the State Historic Preservation Officer and, if approved, signed with the affirmation that all appropriate procedures have been followed.” (36 C.F.R. § 60.15, subd. (a)(4) [emphasis added].)

Respondents argue that such approval is “clearly a discretionary act carrying with it the right to disapprove” of an application. Appellant, on the other hand, argues that the same regulation indicates that the SHPO's functions are “merely ministerial” in that they are limited to ascertaining whether the HRC has followed appropriate procedures. Amici in support of appellant present a similar argument. The appellant's and amici's arguments cannot be sustained.

The federal regulations do not clearly delineate the scope of the SHPO's power to “approve” an application for nomination. There is also federal recognition that “The identification and nomination of historic and cultural resources, as a function that has been assumed by the various States, is essentially a State action.” (36 C.F.R. § 60.12, subd. (c) [emphasis added].)

It is therefore helpful to examine California law with respect to the meaning of the word “approve.” “A standard source gives this definition: ‘[T]o judge and find commendable or acceptable: think well of.’ (Webster's New Internat. Dict. (3d ed. 1965).) Employed in a statute, approval usually connotes the exercise of discretion and judgment. (Cosner v. Board of Supervisors of Colusa County, 58 Cal. 274, 277; Brown v. Cranston, 214 Cal.App.2d 660, 669-670, 29 Cal.Rptr. 725.)” (Johnston v. County of Yolo (1969) 274 Cal.App.2d 46, 53, 79 Cal.Rptr. 33, 38.) The express intent is that the SHPO will exercise some approval powers when receiving applications for nomination. For the reasons stated, within the framework of the State code and the federal regulations, the SHPO has final discretion in approving the recommendation of the HRC. The recommendation of the HRC alone would not be sufficient for submission of nominations to the federal authorities. (36 C.F.R. § 60.15, subds. (a)(4), (a)(5).) Accordingly, there was no error in the above-cited conclusions of the trial court.

B. Did the trial court err in concluding that respondent Mellon had not abused his discretion in refusing to nominate St. Anne's Home to the National Register?

The trial court concluded that, “[i]n declining to make the nomination of St. Anne's Home to the National Register, respondent Mellon acted in accordance with the criteria set forth in applicable federal regulations and properly exercised his discretion under applicable state and federal laws and regulations.” (Emphasis added.) Appellant argues that, if Mellon had discretion in reviewing the nomination application, he abused it. Her argument is that a SHPO cannot refuse to nominate a property for “extenuating and humanitarian” reasons, as did Mellon. Amici in support of appellant join in this argument. Respondents and amicus Little Sisters contend that Mellon's actions were within his discretion.

The federal legislation under which the National Register program was implemented contains the following declaration of congressional policy: “that the historical and cultural foundations of the Nation should be preserved as a living part of our community life and development in order to give a sense of orientation to the American people ․” (16 U.S.C. § 470, subd. (b) [[[[emphasis added].) This congressional purpose corresponds to a recent statement by the United States Supreme Court: “‘[H]istoric conservation is but one aspect of the much larger problem, basically an environmental one, of enhancing—or perhaps developing for the first time—the quality of life for people.”’ (Penn Central Transp. Co. v. New York City (1978) 438 U.S. 104, 108, 98 S.Ct. 2646, 2651, 57 L.Ed. 631 [emphasis added; fn. omitted].)

These statements of the fundamental purposes for historic preservation make it clear that determinations of SHPO's should not be made in a vacuum. The architectural and historical characteristics of a building must be weighed against its societal functions and the significance of its preservation in human terms. Here, respondent Mellon had before him substantial evidence of the purpose and function of St. Anne's Home. Since a reviewing court will not substitute its judgment for that of an administrative officer (Pitts v. Perluss (1962) 58 Cal.2d 824, 834-835, 27 Cal.Rptr. 19, 377 P.2d 83), the decision of respondent Mellon not to nominate St. Anne's to the National Register must stand.

C. Are certain findings of the trial court prejudicially erroneous?

Appellant contends that the trial court erroneously found that she had submitted her application for nomination to the HRC when it fact it was submitted to the office of the SHPO. Since the SHPO is the official responsible for overseeing the nomination process at the state level (36 C.F.R. § 60.5, subd. (b)), an application sent to his office has been submitted, for legal purposes, to the HRC which functions under the guidance of the office of the SHPO. No error appears in this finding.

Appellant argues that the court erroneously found that Mellon gave all interested parties a full opportunity to present their positions in person and in writing. This finding is supported by the substantial evidence of respondent's declaration and by appellant's own testimony. No error appears in this finding.

Appellant also argues that the court erred in finding that respondent Cahill, the Director of the California Department of Parks and Recreation, has no power or duty to supervise the SHPO with respect to the nomination process. This finding is, however, supported by respondent Cahill's declaration. No error appears in this finding.

Finally, amicus Bill Eisen argues that the court erred in finding that appellant fully represented the interests of the class she purported to represent at the outset of the proceedings. This finding is unclear, since it also contains the statement that appellant later “disclaimed any further desire or intention to maintain this action on behalf of anyone but herself.” “Where a finding is lacking in evidentiary support, but it is on a matter which is immaterial, or of so little materiality that a finding either way would not influence the judgment, or for some other reason the finding was unnecessary, other findings being sufficient to support the judgment, the error is harmless.” (6 Witkin, California Procedure (2d ed. 1971) Appeal, § 307, pp. 4288-4289.) Accordingly, no basis for reversing the judgment appears.

D. Did the trial court improperly exclude certain evidence?

Amicus Bill Eisen contends that the trial court improperly excluded “the over-whelming weight of evidence favorable to appellants.” The basis for this argument is that the court erroneously considered the case to be one involving “administrative mandamus” and thus improperly limited itself to consideration of the administrative record.

Appellant's petition did not indicate whether “administrative” or traditional mandamus was sought. However, the record does show that the court admitted all evidence offered by appellant. Amicus' contention is thus without merit.

E. Did respondent Mellon's decision not to nominate St. Anne's Home result in a violation of due process and equal protection principles?

Amicus Eisen contends that Mellon's decision not to nominate St. Anne's resulted in a denial of due process and equal protection under the Fourteenth Amendment. The decisions he relies upon (Schaezlein v. Cabaniss (1902) 135 Cal. 466, 67 P. 755; Hewitt v. Board of Medical Examiners (1906) 148 Cal. 590, 84 P. 39) involve administrative decisions that may affect individuals' rights to property and pursuit of a livelihood. Thus, they are inapplicable to the present case, in which he claims that Mellon's “subjective” decision was unsupported by administrative guidelines. Appellant has no “liberty” or “property” interest in obtaining a nomination to the National Register.² There is no constitutional impediment to the SHPO exercising his independent judgment within the broad guidelines set forth in applicable state and federal legislation.

F. Is appellant entitled to attorney's fees?

Appellant contends that she is entitled to attorney's fees under Government Code section 800³ for successfully challenging the arbitrary and capricious actions of respondents. Since it has been concluded on appeal that respondents' actions were proper, there is no basis for the award of such fees.

The judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

1.  The State Historic Preservation Officer will hereinafter be referred to as “SHPO.”

2.  The Fourteenth Amendment provides in pertinent part:“… nor shall any State deprive any person of life, liberty, or property, without due process of law ․” (Emphasis added.)

3.  Government Code section 800 provides in pertinent part:“In any civil action to appeal or review the award, finding, or other determination of any administrative proceeding under this code or under any other provision of state law, except actions resulting from actions of the State Board of Control, where it is shown that the award, finding, or other determination of such proceeding was the result of arbitrary or capricious action or conduct by a public entity or an officer thereof in his official capacity, the complainant if he prevails in the civil action may collect reasonable attorney's fees, but not to exceed one thousand five hundred dollars ($1,500), where he is personally obligated to pay such fees, from such public entity, in addition to any other relief granted or other costs awarded․”

DELUCCHI, Associate Justice.** FN** Assigned by the Chairperson of the Judicial Council.

CALDECOTT, P. J., and CHRISTIAN, J., concur.