Response to City FAQ by Larry Nokes
RESPONSE TO CITY “FAQ”
By Laurence P. Nokes, Esq.
Let Laguna Live!
We have received and reviewed the City’s “FAQ” letter sent to people who own homes listed on City’s Historic Inventory. While we believe the document was “well intentioned,” it is based on 2 false premises: 1) That houses on the current inventory are “historic resources” under CEQA; and, 2) That houses over 45 years old require an historic assessment under CEQA prior to any remodel. Neither of these are correct.
In addition to correcting these fallacies, it is also important to address the important issue of eliminating once and for all, the City “rating “system” for properties that are actually historic resources. The E, K can C ratings are too vague, not mandated by CEQA or the State Office of Historic Preservation, and they have to go.
A real historic ordinance would address these issues. The currently proposed ordinance, which barely made it out of the Heritage Committee, fails all of these tests.
Houses are either historic or they are not. This should be determined objectively, by whether or not they are on the state historic register, or are determined to be eligible for listing on the State Historic Register. Houses that are on our local Register are “presumed” to be historic resources. The property owner agrees with the listing, voluntarily placed the property on the Register, and receives benefits from being so listed.
No other house is a historic resource, nor is it “presumed” to be an historic resource, until it is determined through the presentation of “substantial evidence” to meet specific requirements established by the State. These are objective, real factors, which must be supportable and supported by real evidence.
The bottom line is this: If we want our homes listed on the Register, we will apply to put them there. If we do not apply, and someone thinks our house is historic, there is a process by which they can nominate our homes. The burden of proof is on the person nominating the property to prove, by a preponderance of real and substantial evidence (not hot air), that the house meets one of the 4 criteria for historicity. If it does, then the person seeking to have the house placed on the inventory must also prove that the house retains its historic “integrity.”
The sneakiness thing about this new proposed ordinance is that is refers to the “inventory” as though it exists. It doesn’t. It may be a list, but it is meaningless for purposes of determining “historic resources” under CEQA. It does not, and the City knows it. The inventory is not a “thing,” not only because the City failed to maintain it according to the law, but also because people were never given any constitutional due process when it was created and used to deprive them of important property rights.
The use of the inventory is backward, and hurts the homeowner. It subtly presumes the house is an historic resource. The City has no valid inventory. If the City wants to create one, then let the City write that into the ordinance, that the City intends to prepare an inventory. But it does not have one now, and they need to stop talking about the current inventory as though it means something. It does not.
This is our position: If our homes are not on the Register and we apply to remodel or demolish, then send us to Design Review like every other home owner. If our homes are on the Register, then we willingly accept that we have the burden to prove that the home does not belong there.
B. What Is So Complicated About CEQA?
CEQA is always trotted out as the big gorilla that is too complicated for mere mortals to understand. The City often uses it as justification to restrict our abilities to perform reasonable and economical remodels to our homes. It is cited as the reason that the City has a right to limit our use of vinyl windows, buy affordable garage doors, and non-vintage roofing material on our older homes that we have worked hard to maintain. Worst of all, it is cited as the basis for the City’s claimed right to force us into historic assessments of our well maintained homes built built before 1955.
This all seems like non-sense, and it is. The purpose of this memo is to explain CEQA as it applies to YOUR PRIVATE HOME, and to make clear, once an for all, that what the City is abusing CEQA to deprive us of valuable property and constitutional due process rights. This is NOT the purpose of CEQA.
“CEQA requires that a public agency determine whether a project may have significant environmental impacts before it approves the project. (§ 21151, subd. (a); . . .. Under CEQA, an agency must require an EIR for any project that “may have a significant effect on the environment,” unless a categorical exemption applies. (§ 21151, subd. (a)” [Preserve Poway v. City of Poway, (2016) 245 Cal.App.4th 560, 574, 199 Cal.Rptr.3d 600, 609.
Single family homes, like ours, fall within a “Categorical Exemption” under CEQA, so they are “exempt” from having an EIR under most sircumstances::
“Class 3 consists of construction and location of limited numbers of new, small facilities or structures; . . . The numbers of structures described in this section are the maximum allowable on any legal parcel. Examples of this exemption include but are not limited to:
(a) One single-family residence, or a second dwelling unit in a residential zone. In urbanized areas, up to three single-family residences may be constructed or converted under this exemption.
(b) A duplex or similar multi-family residential structure totaling no more than four dwelling units. In urbanized areas, this exemption applies to apartments, duplexes, and similar structures designed for not more than six dwelling units.” § 15303. New Construction or Conversion of Small Structures., 14 CA ADC § 15303
If a project has a significant effect, it is dealt with by an orderly process. If the property is not on the Register, the City issues a Categorical Exemption, and provides notice of that Exemption. The public then has an opportunity to challenge that Exemption. If substantial evidence is presented that the property is historic and not entitled to an Exemption, then the owner may present evidence rebutting that evidence. If the owner carries his burden of proof after such a challenge, then the City issues a Negative declaration. With its reasoning as to why the project will not create a substantial adverse change in the environment. If not, an Environmental Impact Report must be prepared.
So putting the pieces together, Single Family Homes and duplexes are categorically exempt under CEQA unless they are proved to be “historic resources” under CEQA. The new proposed Ordinance tries to capture your home under CEQA by creating a “presumption” that is is “historic.” Here is how they try to do it:
Public Resources Code section 21084.1 makes “historic resources” subject to CEQA. (Remember, your single family home or duplex is Categorically Exempt from CEQA unless an EXCEPTION applies):
“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.”
Breaking this code section down, there are three, and only three, types of “historic resources” under the CEQA code section:
1. Mandatory – “Historical resource listed in, or determined to be eligible for listing in, the California Register of Historical Resources.”
2. Presumptive – “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.”
3. Discretionary – “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.”
Properties that are listed on, or eligible to be listed on, the State Register are “Mandatory.” Therefore, as long as they appear on the State Register, or are eligible for listing, they are not exempt, and must be evaluated under CEQA. A home listed on a valid local register, or a VALID and UPDATED local inventory, is “presumed” to be a “historic resource” UNLESS the homeowner can prove that it is not.
Finally, the City is not foreclosed from making a determination that a property is a historic resource, even if it isn’t on a state register, a local register, or a valid inventory. These are the so-called “Discretionary” resources.
The important thing is that houses that are not “mandatory” or “presumptive” resources are not historic resources at all until there is a finding, based on “substantial evidence” that the property meets the criteria to be qualify as “historic” AND that the property maintains its “integrity” which will be discussed below.
Currently, in Laguna, we have several homes that are actually on the State Register. These are our “Mandatory” resources. We have about 300 homes on our “Historic Register.” These are our “presumptive” resources.
Every other home in Laguna is Categorically Exempt. The so-called “Inventory” was not created or maintained according to the law, and therefore cannot be used to deprive you of your property rights. It is invalid. Yet the City continues to include it in the new proposed Ordinance.
We must demand that any reference to the invalid inventory be removed, once and for all, from the ordinance. It is confusing and illegal, and is a back door way to force you to prove your house is NOT HISTORIC, rather than placing the burden on the City to prove that is is. Equally important, the way the Ordinance is written, if your house is pre-1955, you may be forced to prove to the City that the house is not historic.
The CEQA process is discussed below under topic 8, the “opt-out” provision. But let’s get to the FAQ’s in light of this explanation of the source of the law.
1. What is the Historic Inventory?
First, the current inventory is invalid. Laguna’s “inventory” was prepared in 1981. The law clearly requires that for an inventory to have any legal meaning, it must be prepared in accordance with the law, and it must be updated every five years to perhaps include additional structures, or to drop included structures that are no longer potentially significant. Laguna didn’t do that, and it’s inventory is legally invalid. The inventory must also give the homeowner whose rights are being taken “due process” to contest the basis for the property’s inclusion. That was never done in the case of Laguna’s inventory.
In fact, the opposite is true. As late as 1998, elected City officials were assuring people whose homes were on the inventory that historic preservation was strictly voluntary. The General Plan even states the the preservation ordinance is to be voluntary and incentive based.
A legal and properly maintained inventory is significant because, under CEQA, a property on such an inventory is “presumed” to be an “historic resource.” That means that instead of having a “Categorical Exemption” under CEQA like most private home owners, you will have to prove that the house is not historic, because homes that are deemed to be “historic resources” under CEQA are “protected,” and are subject to more scrutiny in the event of a desired remodel or demolition to make way for a new home.
Because the Laguna Beach Inventory was probably not properly created, in that there was no “due process” provided to people whose homes were listed, in that they were not told of its impact and were not given a hearing to challenge the inclusion of the home, the inventory probably never was valid. More important, because Laguna’s Inventory was never updated as required by California Public Resources Code § 5024.1(g), it is absolutely invalid to create any “presumption” under CEQA that the property is historic.
Even if your house is on the Inventory, it is at most a “discretionary” resource. There is no presumption, and the City has the burden to prove that the building is historic.
2. What is the Historic Register?
Let Laguna Live! whole-heartedly supports the historic Register as the main vehicle for historic preservation.! It complies with the General Plan. It is an incentive-based program that encourages homeowners to participate in a preservation program where they enter a contract with the state and receive benefits. The building might receive lower permit fees, liberal setback requirements and parking credits. This is also consistent with the Laguna Beach General Plan, which requires that the preservation program be voluntary, with incentives provided to encourage people to participate. The General Plan expressly envisions a voluntary and incentive based preservation program.
3. How are the City’s Historic Ratings Defined?
This is a real issue, and this code re-write should do away with these ratings altogether in favor of the more precise state historic codes. “E”, “K”, and “C” designations are subjective and unworkable. For example, a “C” structure does not even have to be unique in itself, but it just contributes to the overall character of the neighborhood. It could be said that everything contributes to the overall character of a neighborhood. Under this definition, a porta-potty could be “C” rated. It contributes, although not in a positive way, to the overall character and history of the neighborhood.
The state historic codes provide a precise method of designation and describe the reason(s) for the significance of the building. They may be objectively discussed and, if need be, challenged administratively and in court. This is an opportunity to get rid of mushy standards of “E”, “K” and “C”, and we need to take advantage of it.
4. What is the Draft Inventory?
The Draft Inventory is basically the old Inventory, with some houses removed. It does nothing to solve the problem of the people who are listed on it who were never given notice or an opportunity to be heard. If you are included on this Inventory, your house is presumed to be a historic resource. The burden of producing substantial evidence that your house should not be there is on YOU. Through this Inventory, your house is again caught up in an unfair dragnet of houses that were never properly evaluated, with no notice given to the owners of the impacts.
If you are on this Inventory, your “participation” is not voluntary as contemplated by the General Plan, and as people were previously told by the City; it is compulsory. And it allows the City to impose further discretionary restrictions on your house, and how you use and develop it.
5. What is the “existing” Historic Preservation Ordinance?
The old ordinance contains references to the inventory, which is invalid, and to E, K and C ratings which are vague. We agree it needs to be scrapped.
6. What is the “proposed” Draft Historic Ordinance?
The proposed draft ordinance is fine insofar as it retains the voluntary and incentive-based “Register” concept. It is terrible insofar as it retains any of the burdens of the old Inventory. The word “inventory” should not appear anywhere in the new Historic Ordinance. Also, the E, K and C ratings need to disappear. They are vestiges of an outdated and vague rating system. If the City wants to have an inventory, the new ordinance should simply state that the City plans to initiate the preparation of an historic inventory which will comply with federal and state law. The burden shall be on the City (not on the home owner) to establish that the property is historic, and each owner shall be given notice and the opportunity to be heard before any presumption is placed upon his or her property that limits the ability to make changes to the home.
7. What is CEQA and how does it relate to historic properties?
This is discussed above as it relates to historic resources. CEQA does not impact you as a homeowner unless your home is an “historic resource.” Remember the discussion above – historic resources are Mandatory, Presumptive and Discretionary. If your home is none of these, it is not a resource. As a private home, you are always subject to CEQA if you remodel, but you are generally given a “Categorical Exemption,” a designation granted to private property owners to allow demolition and remodeling of their homes.
If you have an historic resource and you want to remodel, you may have to go to the hellacious expense of getting a full environmental impact report.
Remember, your home is not an historic resource until it is determined to be one, either because it is on a register or because the City makes a legal determination that it is under its “discretionary” authority. You do not have to worry about the “presumption” issue, because the Inventory is invalid. But this is very important: If the proponents of this Ordinance are successful and they breathe new life into this dead Inventory but writing its validity into this Ordinance, you may again have the problem of being considered a “presumptive” resource, depriving you of your eligibility for a Categorical Exemption, and placing the burden of proof on you that your property is not a historic resource.
8. Can I “opt-out” of the Historic Inventory?
First, there is nothing to opt out of, because the Inventory is invalid. If a valid inventory is ever devised and maintained, preservationists who promote these inventories do not like to provide opt out provisions. Why? Because just about everybody opts out except those who want to be on the register and receive incentives, or those who are asleep at the switch. This language from the State Office of Historic Preservation says it all:
“Practical experience around the country shows that it is difficult to craft an effective historic preservation program if owner consent is required. Inevitably, the city will lose significant structures or deleterious alterations will be made. However, in some cases, practical and political considerations may dictate that owner consent provisions be present in order to ensure passage of a preservation ordinance.” [Drafting Historic Preservation Ordinances OHP Technical Assistance Bulletin #14]
In other words, opt out provisions are entirely proper in a preservation ordinance, particularly where it is politically necessary in order to pass the ordinance. Preservationists don’t like to include them, because they will actually have to work to take away your rights. Why? Because homeowners don’t want to have their homes included without their consent. Why would they?
This issue is pertinent if you are currently listed on the old Inventory; the rules relating to “discretionary” historical resources should apply. What does that mean? Simple – Your home is not a historical resource until someone proves that it is. If you want to do a project, you make an application and the City receives your application. This is where the CEQA process starts for every project. And this is where the City has to deal with the so-called historicity of your project. This requires a trained professional, not lay people like the Design Review Board or the Heritage Committee.
At this time, the City considers the project and issues a categorical exemption, a negative declaration or a mitigated negative declaration. What does this mean? Let’s say you have an old house. No one famous lived there. Nothing famous ever happened there. It is just old. It has some old architectural features that some people believe look cool, but they aren’t for you. The planning staff would issue a categorical exemption and post a notice. The public could then challenge by preparing an objection and then, at a legal hearing, presenting actual evidence that the property satisfies the criteria set forth in PRC 5024.1 and that it maintains its integrity. You would then be able to rebut that evidence, and if you make a more convincing case, that City issues a negative declaration stating that there is no environmental impact by the project, or a mitigated negative declaration, saying you can do your project but that you might have to take photos of the interesting work, or make the property available for salvage. (Remember how much interest there was in the Third Street Cottages that were relocated to make way for the beautiful Suzy Q Senior Center? They were moved at great expense to the City, and then were ultimately demolished.)
The good thing about this process is that notice is posted by the City to neighbors within a specified radius, 300 feet. If anyone wants to challenge the categorical exemption, the negative declaration or the mitigated negative declaration, they have to do so within the time allowed by the Code. The great thing is that the opponents to the classification have the burden to show that the house is historic and they have to prove it by a preponderance of the evidence! In other words, the burden is NOT on the property owner; the burden is on those who want to stop your right to develop your property. This is the correct way to proceed.
9. What if I disagree with the current property rating on my home?
Under the existing Ordinance, you are doomed. Under the new ordinance, you may challenge the rating, but it is the mushy rating: C, K or E. It is tough to challenge completely subjective standards. The worst part of this whole scheme, however, is that the burden of proof is on you! You have to prove that your house does not belong amongst the “historic” properties, and it is the Heritage Committee who is the trier of fact.
10. What if the Historic Inventory were eliminated from the City’s Historic Preservation Program?
If the Inventory is done away with, it subjects all homes to a standard CEQA analysis, just like they are now. You are processed with an exemption or a negative declaration, and then someone can object. But, again, the objector must prove that your house is historic. If you are on the Inventory, it is your burden to prove that the house is NOT historic. There is nothing that requires an historic assessment of houses over 45 years old. This is a “design review criterion” that may apply to projects that are subject to design review. The City is often confused by this rule. According to both the State and National Offices of Historic Preservation, properties that are less than 50 years old CANNOT be historic unless they are extraordinary. Historicity is determined by four criteria in Public Resources Code § 5024.1.
“45 years old” is not one of those criteria. This is one the City is making up.
11. Will the proposed draft Ordinance diminish my home’s value?
Yes, because it limits what people can do with the house and, therefore, shrinks the size of the universe of people interested the home. This creates a downward drag on the market.
12. Will I be able to update my historic property?
Yes, but you are extremely limited and you face another layer of bureaucracy. If the home is historic, you are limited to construction materials, construction methods and construction means. You must have the house’s construction monitored by an historian, and you are subject to more strict compliance checks. Sometimes, you will be required to use the old material that you are trying to get rid of. You will be limited in your window, door and roofing materials selections, and, often times, these will be far more expensive than what you might select. The City is even proposing a “style manual” that you will need to comply with if your home is “historic.”
13. What is the CURRENT process to remove a property from the Historic Register?
Supposedly, you just apply and agree to pay back the fee. But because it is vague, Council has rejected applications to be removed from the Register, despite the clear statutory language. Unfortunately, that is not the way it is applied by the council.
14. What is the PROPOSED process to remove a property from the Historic Register?
Again, the proof requirements are defined and more rigid. It is still subject to Council’s discretion.
15. What are the current Historic Register criteria?
The house must meet one of four basic standards and must retain its historic integrity.
16. What disclosure is required of the City for historic properties?
The City must inform a buyer if the house is on any historic list. However, with the new proposed 1955 rule, the City would have to inform a buyer that he/she may be subject to scrutiny if he/she wants to do anything to the house because of its age. And the buyer won’t know that process until he/she makes a planning application. This will place another layer of uncertainty on the property, again creating a downward drag on the market.
“Age” does not make a house historic. The legal factors and integrity make a house historic.
17. What will happen when I sell my property?
Under California law, you are required to disclose all of the Heritage Ordinance restrictions. The buyer will ask you what this all means, and you must be in a position to tell them. Unless the new property owner has no desire to ever remodel, this will be a problem.
18. What disclosure is required of real estate agents in the proposed/draft Ordinance?
A real estate agent must disclose, as a matter of law, all factors known to him or her, that impact or affect the value desirability of the property.
19. What incentives are proposed for historic properties in the proposed draft Ordinance?
These are self evident, but apply to homes that are sited on the Register. We are all for incentives and voluntary preservation.
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