Legal Reasons Why a Mandatory Plan is Not Required
VIA ELECTRONIC AND FIRST CLASS MAIL
Kelly Boyd, Mayor
Rob Zur Schmiede, Mayor Pro Tem
Steve Dicterow, Councilmember
Toni Iseman, Councilmember
Bob Whalen, Councilmember
Re: Historic Preservation Ordinance
Dear Mayor Boyd and Council Members:
Recent discussions of the revisions to the Historic Preservation Ordinance have generated much discussion of General Plan and CEQA mandates. Some members of Our local elected or appointed government committees and boards, Such as the Heritage Committee, the Design Review Board, and the Planning Commission, and, most recently, members of Our City Council, have referenced the notion that CEQA “mandates give us no discretion as to how We formulate and conduct our preservation program. The “CEQA Made Me Do It justification for imposing restrictions on homeowners has made life difficult and expensive on applicants Seeking to improve their properties. This misapplication is based on a misunderstanding of what CEQA does and does not require.
The purpose of this correspondence is to provide information of the Statutory and regulatory bases of CEQA as they relate to historic preservation. Hopefully, you will find this information instructive, and it will enable you to use the information to navigate Out of the fog of CEQA and objectively consider the obligations imposed, or not imposed, by the law.
In a nutshell, houses that are not on the historic register are referred to as ‘discretionary resources. The City has discretion to take one of the following paths:
A. Consider the question of a buildings historicity for purposes of CEQA, or avoid the question entirely; or
B. Adopt a regulation imposing a legal duty to: (1) consider the question of a buildings historicity for purposes of CEQA; and (2) apply the criteria in Guidelines Section 15064.5, Subdivision(a)(3)(A) through (D) when making its determination.
The courts will not impose a requirement on which Way you elect to go. However, you must consider the rights and wishes of every owner of every old home in Laguna, if you intend to adopt a regulation that forces them into mandatory analysis of their homes, looking for historicity. Creating a procedural dragnet by which every house is Vetted as an historic resource is not consistent with the General Plan, and is not required by CEQA.
This is best left to a Voluntary and incentive-based program ~ one that can be embraced by homeowners and the community. Truly historic properties may be nominated through a legal process, with the party advocating historicity bearing the burden of proving, by a preponderance of the evidence, that the property is historic. In the absence of that step, all homes should be processed with a Categorical Exemption.
It must be noted that numerous homeowners have applied for Mills Act and other incentives, and they are happy with their choice. Others have been forced into a set of arcane restrictions which have mired them in needless expense and illogical restrictions.
I. General Plan Requirements for Historic Preservation
The City of Laguna Beach chose to adopt a “Historic Preservation Element” (“HRE”) to its General Plan. “The Historic Resources Element is not a State-mandated element of the General Plan.” HRE. P. l. This element is entirely elective. Additionally, as described in the HRE, the program to preserve resources is “voluntary and based on “incentives.
“The provisions of the City of Laguna Beach Historic Preservation Ordinance provide a tool for implementing the Historic Resources Element. The Ordinance promotes voluntary implementation and provides incentives for adding to and modifying historic structures while ensuring preservation of the original architectural integrity of the structure. The incentives include fee Waivers, Setback flexibility, parking reductions and a property tax reduction (Mills Act) for qualified historic structures. Historic Preservation Element of the Laguna Beach General Plan, p. 2.
The HRE does not describe a means by which the City may compel a person, family or owner to preserve an old home. Rather, compulsory identification and listing are reserved for City Owned structures. Private participation is achieved by providing incentives.
The analysis below borrows liberally from the definitive Court of Appeal decision on Valley Advocates v. City of Fresno (2008) 160 Cal.App.4th 1039, 1051-1062.
II. CEQA Background of CEQA Treatment of Historic Resources – Code and Guidelines
Historic resources are defined in California Public Resources Code S 21084.1. Guidelines for implementation of PRCS 21084.1 are set forth in California Code of Regulations S 15064.5 (Guidelines). Courts are not required to automatically accept statutory interpretations contained in the Guidelines. Except where the Guidelines are clearly unauthorized or erroneous, however, courts do accord the Guidelines great Weight when interpreting CEQA. (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 428, fin. 5, 53 Cal. Riptr.3d 821, 150 P.3d 709.)
A. California Public Resources Code S 21084.1 – The Applicable Statutory Text of CEQA
‘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. For purposes of this section, an historical resource is a resource listed in, or determined to be eligible for listing in, the California Register of Historical Resources. Historical resources included in a local register of historical resources, as defined in Subdivision (k) of Section 5020.1, or deemed significant pursuant to criteria set forth in subdivision (g) of Section 5024.1, are presumed to be historically or culturally significant for purposes of this section, unless the preponderance of the evidence demonstrates that the resource is not historically or culturally significant. The fact that a resource is not listed in, or determined to be eligible for listing in, the California Register of Historical Resources, not included in a local register of historical resources, or not deemed significant pursuant to criteria set forth in subdivision (g) of Section 5024.1 shall not preclude a lead agency from determining whether the resource may be an historical resource for purposes of this Section.
B. Code of Regulations S 15064.5 (Guidelines)
“(a) For purposes of this section, the term “historical resources’ shall include the following:
(1) A resource listed in, or determined to be eligible by the State Historical Resources Commission, for listing in the California Register of Historical Resources (Pub. Res. Code S 5.024.1, Title 14 CCR, Section 4850 et seq.).
(2) A resource included in a local register of historical resources, as defined in Section 5020.1(k) of the Public Resources Code or identified as significant in an historical resource Survey meeting the requirements section 5024.1 (g) of the Public Resources Code, shall be presumed to be historically or culturally significant. Public agencies must treat any such resource as significant unless the preponderance of evidence demonstrates that it is not historically or culturally significant.
(3) Any object, building, structure, site, area, place, record, or manuscript which a lead agency determines to be historically significant or significant in the architectural, engineering, Scientific, economic, agricultural, educational, Social, political, military, or cultural annals of California may be considered to be an historical resource, provided the lead agency’s determination is supported by Substantial evidence in light of the Whole record. Generally, a resource shall be considered by the lead agency to be historically significant if the resource meets the criteria for listing on the California Register of Historical Resources (Pub. Res. Code, S 5.024.1, Title 14 CCR, Section 4852) including the following:
(A) Is associated with events that have made a significant contribution to the broad patterns of California’s history and cultural heritage;
(B) Is associated with the lives of persons important in our past;
(C) Embodies the distinctive characteristics of a type, period, region, or method of construction, or represents the Work of an important creative individual, or possesses high artistic Values; or
(D) Has yielded, or may be likely to yield, information important in prehistory or history.
(4) The fact that a resource is not listed in, or determined to be eligible for listing in the California Register of Historical Resources, not included in a local register of historical resources (pursuant to section 5020.1(k) of the Public Resources Code), or identified in an historical resources survey (meeting the criteria in section 5024.1 (g) of the Public Resources Code) does not preclude a lead agency from determining that the resource may be an historical resource as defined in Public Resources Code sections 5020. 1(j) or 5.024.1.
. . . [Emphasis added and discussed later]
III. CEQA – Three Types of Historic Resources Described in PRCS 21084.1 and Guidelines
Section 21084.1 and its implementing Guidelines establish three analytical categories for use in determining whether an object is an historical resource for purposes of CEQA. (1) mandatory historical resources; (2) presumptive historical resources; and (3) discretionary historical resources.
A. Mandatory Historic Resources
1. Applicable Text of CEQA and Guidelines to Mandatory Historic Resources
The category of mandatory historic resources is based on the second sentence of Section 21084.1, which states:
“For purposes of this section, an historical resource is a resource listed in, or determined to be eligible for listing in, the California Register of Historical Resources.
Paragraph (a)(1) of the Guidelines defines the scope of the category of “mandatory historic resources by adding one limitation to the text of the second sentence of section 21084.1. Specifically, Guidelines section 15064.5, Subdivision (a)(1) provides that “the term historical resources shall include … … a resource listed in, or determined to be eligible by the State Historical Resources Commission for listing in, the California Register of Historical Resources (Pub. Res. Code S 5.024.1, Title 14 CCR, Section 4850 et seq.). (Italics added.)
Based on the statute and the Guidelines, the only “mandatory” historic resources are properties that are actually listed in, or which have been actually determined to be eligible by, the State Historical Resources Commission to be eligible for listing.
B. Presumptive Historic Resources
1. Applicable Text of CEQA and Guidelines dealing with “Presumptive Historic Resources’
The category of “presumptive historic resources is created by the third sentence of PRC Section 21084.1, which States:
Historical resources included in a local register of historical resources, as defined in subdivision (k) of Section 5020.1, or deemed significant pursuant to criteria set forth in Subdivision (g) of Section 5024.1, are presumed to be historically or culturally significant for purposes of this section, unless the preponderance of the evidence demonstrates that the resource is not historically or culturally significant.”
The Guidelines reiterate this definition by stating that “the term historical resources shall include … … a resource included in a local register of historical resources, as defined in Section 5020.1(k) of the Public Resources Code or identified as significant in an historical resource survey meeting the requirements of section 5024.1 (g) of the Public Resources Code, shall be presumed to be historically or culturally significant. Public agencies must treat any such resource as significant unless the preponderance of evidence demonstrates that it is not historically or culturally significant.” (Guidelines, S 15064.5, Subd. (a)(2).)
These provisions create three types of presumptive historical resources. The first two types involve a resource included in a local register of historic resources. A local register of historic resources’ is defined as a “list of properties officially designated or recognized as historically significant by a local government pursuant to a local ordinance or resolution. (S 5020.1, Subd. (k), italics added.) The third type of presumptive historical resource is a resource identified as significant in certain Surveys of historical resources. (S 5.024.1, Subd. (g).) The historical resource Survey must meet all four of the criteria Set forth in Section 5024.1, Subdivision (g).
It is important to note here that Laguna’s historic resources inventory does not create such a presumption because it does not meet the requirements of PRC Section 5024.1 (g).
C. Discretionary Historical Resources – ALL HOMES NOT LISTED ON
LAGUNA’S REGISTER (PRESUMPTIVE RESOURCES) FIT INTO THE “DISCRETIONARY’ CATEGORY.
1. Text of CEQA dealing with “discretionary” historic resources
The category of discretionary historical resources is derived from a combination of the second sentence and the last sentence of section 21084.l. For review, the text of the Second sentence of section 21084.1 states:
“For purposes of this section, an historical resource is a resource listed in, or determined to be eligible for listing in, the California Register of Historical Resources.
The last sentence of Section 21084.1 states:
“The fact that a resource is not listed in, or determined to be eligible for listing in, the California Register of Historical Resources, not included in a local register of historical resources, or not deemed significant pursuant to criteria Set forth in Subdivision (g) of Section 5024.1 shall not preclude a lead agency from determining whether the resource may be an historical resource for purposes of this section.”
The last sentence of section 21084.1 is phrased in terms of what a lead agency is “not precluded from doing. This phrasing, as well as the lack of a reference to the lead agency in the Second sentence of Section 21084.1, creates ambiguity as to (1) What, if anything, a lead agency is required to do (i.e., its affirmative obligations) and (2) the extent of its discretionary authority.
The provisions of CEQA do not address these ambiguities either in section 21084.1 or elsewhere.
2. Provisions in the Guidelines dealing with Lead Agency’s obligations and discretion
The Guidelines do address some aspects of these ambiguities, but do not resolve them fully.
a. Guidelines section 15064.5, subdivision (a)(4)
Guidelines section 15064.5, Subdivision (a)(4) tracks the language in the last sentence of section 21084.1 with only a few specific differences.
“(4) The fact that a resource is not listed in, or determined to be eligible for listing in the California Register of Historical Resources, not included in a local register of historical resources (pursuant to section 5020.1(k) of the Public Resources Code), or identified in an historical resources Survey (meeting the criteria in Section 5024.1 (g) of the Public Resources Code) does not preclude a lead agency from determining that the resource may be an historical resource as defined in Public Resources Code sections 5020.1(j) or 5.024.1. S 15064.5.” [14 CA ADC S 15064.5]
These provisions are consistent with the conclusion that a lead agency has some discretionary authority when evaluating homes that are not listed on State or local registers.
b. Guidelines section 15064.5, subdivision (a)(3)
Guidelines section 15064.5, subdivision (a)(3) addresses aspects of a lead agency’s discretionary authority in two ways. First, it limits what the lead agency is allowed to do. Second, it appears to impose an affirmative obligation on the lead agency:
“3) Any object, building, Structure, Site, area, place, record, or manuscript which a lead agency determines to be historically significant or significant in the architectural, engineering, Scientific, economic, agricultural, educational, Social, political, military, or cultural annals of California may be considered to be an historical resource, provided the lead agency’s determination is Supported by Substantial evidence in light of the Whole record. Generally, a resource shall be considered by the lead agency to be “historically significant if the resource meets the criteria for listing on the California Register of Historical Resources (Pub. Res. Code, S 5.024.1, Title 14 CCR, Section 4852) including the following: (A) is associated with events that have made a significant contribution to the broad patterns of California’s history and cultural heritage; (B) Is associated with the lives of persons important in our past: (C) Embodies the distinctive characteristics of a type, period, region, or method of construction, or represents the Work of an important creative individual, or possesses high artistic Values; or (D) Has yielded, or may be likely to yield, information important in prehistory or history. . …” [14 CA ADC S 15064.5]
The limitation is stated at the beginning of Guidelines section 15064.5, subdivision (a)(3): “Any object or building … which a lead agency determines to be historically significant … may be considered to be an historical resource, provided the lead agency’s determination is supported by substantial evidence in light of the whole record.” The Guidelines use the Word “may to identify discretionary authority. (Guidelines, S 15005, Subd. (c); see S 15 “may defined.)
Thus, Guidelines section 15064.5, Subdivision (a)(3) confirms the lead agency’s discretion to treat an object or building as an historical resource for purposes of CEQA and limits that discretion to situations where Substantial evidence Supports the lead agency’s determination of historical significance.
The second sentence of Guidelines section 15064.5, Subdivision (a)(3) contains the following mandatory language: ”Generally, a resource shall be considered by the lead agency to be historically significant if the resource meets the criteria for listing on the California Register of Historical Resources. The word “shall is used in the Guidelines to identify “a mandatory element which all public agencies are required to follow. (Guidelines, S 15005, Subd. (a).)
3. Discretionary Authority
The provisions in section 21084.1 and Guidelines section 15064.5 make clear that lead agencies have discretionary authority to determine that buildings that have been denied listing or simply have not been listed on a local register are nonetheless historical resources for purposes of CEQA.
The exact Scope of that discretion is not clear. One interpretation Suggests that a lead agency may elect, in an exercise of discretion, to either consider the question of a buildings historicity for purposes of CEQA, or avoid the question entirely. The statute and regulations also could be interpreted to mean a lead agency has a legal duty to: (1) consider the question of a buildings historicity for purposes of CEQA; and (2) apply the criteria in Guidelines section 15064.5, Subdivision(a)(3)(A) through (D) when making its determination. (See 2 Kostka & Zischke, Practice Under the Cal. Environmental Quality Act, Supra, S. 20.109, p. 1063.) Under this interpretation, so long as these two duties are fulfilled, the ultimate determination is committed to the lead agency’s discretion.
a. Scope of Discretion
The exact Scope of the discretionary authority granted to lead agencies under Section 21084.1 and Guidelines section 15064.5 is not clear.
Courts have refused to define the parameters of that which must be done for the lawful exercise of this discretionary authority. In particular, the Courts do not determine if this discretion is best characterized as (1) a discretionary election to consider whether a building is an historic resource or (2) a mandatory duty to address and answer that question by determining, in the exercise of discretion, whether the building meets one of the definitions of an historic resource acknowledged in the Guidelines.
CONCLUSION
In formulating an ordinance, we must be careful to observe the original theme of the optional Historic Resources Element – Voluntary, incentive-based preservation efforts. There is nothing in CEQA that requires staff or the City, as lead agency, to impose restrictions on private homeowners who do not wish to be held to a heightened level of scrutiny. The fact is that CEQA does not make you do this to people. It does allow the City to use its discretion, but in consideration of all of the circumstances. Certainly, one most important of those circumstances must be to respect the wishes of the owner of the property either to be or not to be included in the Voluntary and incentive-based historic preservation program.
I sincerely hope this information has been helpful to you in formulating a path forward on this most significant issue.
Respectfully submitted,
Laurence P. Nokes
cc: John Pietig
Greg Pfost
Martina Caron
Planning Commission
M. Katherine Jenson, Esq.
Attachment 3-Valley Advocates v. City of Fresno