Rights of Laguna property owners slashed by new proposed ordinance Let Laguna Live!

Gene D’Isabella, a retired Laguna Beach firefighter, stepped to the podium in the Council Chambers in a final effort to protect his property rights. Gene moved to Laguna Beach in 1956, bought a modest home and worked hard to pay it off on a fireman’s salary. He drives the old fire truck every year in the Founders’ Day Parade, and drives Santa into town on Hospitality Night. Now, his rights as a homeowner were under attack by the very community he served with distinction for so long.

A man who spent his career protecting others was now being forced to defend his property rights from an assault led by a small but vocal group seeking to declare his private home an “historic resource” and freeze it in time. Gene stood tall and, with a firm voice, once again explained to deaf ears that ownership of his home is his family legacy. He simply wanted to enjoy the same rights of life, liberty and property guaranteed by the United States Constitution. He wanted his kids to be able to inherit his property and to modify it as their personal needs would reasonably require. In Gene’s mind, this is what owning property is all about. This is why he worked so hard as a fireman ~ for himself and for his family.

The seed of Gene’s problem germinated about three and a half decades ago. Between

July 15, 1980 and July 15, 1981, an “historian” drove around Laguna and photographed approximately 850 homes, assigning them an “E”, “K” or “C” rating. Gene thinks his home was rated a “C” – no elaborate structure in and of itself but, according to the anonymous historian who never spoke with Gene, the home vaguely “contributed” to the neighborhood. At the time, Gene was not alarmed. After all, the City General Plan clearly stated that the City’s preservation effort was to be strictly voluntary (Historic Resources Element – Laguna Beach General Plan [Introduction, Page 2]). If homeowners were so inclined, and Gene was not, they could apply to have their homes included on the City’s Historic Register. Successful Historic Register applicants could share in a variety of incentives, including reduced permit fees, relaxed setback restrictions, and even property tax reductions, but they were required to enter into a written contract with the State agreeing to maintain their homes in accordance with strict federal preservation rules established by the Secretary of the Interior.

The City’s current preservation ordinance makes reference to two different lists:

List 1, the Historic “Register,” requires an application and an evidentiary showing by the applicant at a public hearing that the home meets one of four specific historic criteria. The home also must maintain its “historic integrity,” which means that it looks about the same as it did when its defining features gained their importance.

List 2, the Historic “Inventory,” is the product of the above described drive-by photo safari in the early 1980’s in which homes were classified without input from the property owners. Involuntary inclusion on the Inventory entitled the homeowner to nothing in the way of benefits. If an owner no longer wanted to have his or her home included on the Register, they could make application to get off of the list. The only stated limitation to exit the list was that any incentive received had to be repaid to the government. Paradoxically, there was no way off of the Inventory.

Over time, something changed in the way the City treated homes on the Inventory. Someone persuaded City staff that all of these privately owned homes should be quietly reclassified by the City and treated as “historic resources.” That’s right: they were no longer homes that belonged to the homeowner. They would now be resources controlled by so-called preservationists refusing to acknowledge the architectural tastes or housing needs of the owner. This shift, impacting about 500 Laguna Beach homes, was the biggest dollar-for-dollar land grab in the history of the City.

And it all occurred without a single homeowner receiving one word of notice. The City provided no opportunity or forum to these property owners to defend their property rights. Concerns about inclusion on the Inventory were raised from time to time by some homeowners. For about 20 years, concerned homeowners were regularly assured that it was not a big deal to be on the Inventory — it was just a quaint artifact from the 1980’s. Historic preservation, after all, was strictly voluntary.

To the detriment of these property owners, the City started applying new rules to these homes, gutting homeowners’ rights in the process. The action was based on a misinterpretation of the California Public Resources Code and the California Environmental Quality Act (“CEQA”) that the Inventory gave rise to a presumption that the property was historic.

Please don’t fall asleep on me here, because you need to understand this next part if you own or want to buy property in Laguna Beach. Public Resources Code Section 21084.1 states that if a home is included on a state or a local “Register” (voluntary), or a valid Inventory (involuntary), CEQA creates a presumption that the home is an historic public resource. Any modification of that home that causes a “substantial adverse change” in the resource may have a significant effect on the environment.

According to the statute, the presumption may be rebutted by a preponderance of the evidence. As applied by the City, if your home is on the Register or the Inventory, your remodel options are limited to those set forth by the Secretary of the Interior. The determination as to whether or not your proposed remodel could be approved would now be made by the Heritage Committee. Comment at the Heritage Committee is not limited to people within 300 feet, like a Design Review hearing. But suddenly your application could be opposed by any hair-on-fire fanatic with a “preservation” bent. This was okay as far as the homes on the Register are concerned, because that is the deal those homeowners made with the City and the State. Register homeowners receive incentives from public funds in exchange for heightened regulatory control over future changes to their property.

The Register premise did not hold true for Inventory homes. These property owners never made a contract with anybody. They were included on a list over which they had no control. But, according to the City, the Inventory homes had exactly the same burdens as the Register homes. But they had none of the rights.

Unfair? Illegal? A taking? You’re darned right!

But there was no way off of the Inventory list. Inventory homeowners are stuck in process hell. Not only are their remodel efforts subject to Design Review where neighbors within 300 feet could object, but these Inventory families are first required to go to the Heritage Committee, where every “special interest” citizen and/or preservationist in town can organize and oppose their project. In a cruel irony, the better care they took of their property, the more it retained its “integrity” and the more resistance there was to change.

If you are unlucky enough to have been subjectively included on the Inventory in 1981, you are forced into an additional Heritage Committee review where your remodel dreams would be sent to the bottom of the design sea, weighed down by the anvil of the Secretary of the Interior standards as interpreted by seven lay people on the Heritage Committee.

Remodel proposals for Inventory homes are routinely rejected by the City because proposals do not conform to the Secretary of the Interior standards for the “treatment” of “historic resources.” Those lucky enough to get past the Planning application desk will then be shuttled off to the Heritage Committee. Hundreds of thousands of dollars have been spent on these applications and extra Planning hearings by the Heritage Committee. And, still, the owners of homes listed on the Inventory have been and are deprived of an opportunity to be heard regarding whether or not the home is historic before they are muscled into the Heritage Committee process. Homes on the Inventory are conclusively presumed by the City to be historic resources.

Requirements placed on the City’s Zoning staff caused them to require Inventory properties to be assessed by an architectural historian, at the homeowner’s expense. This historic assessment routinely costs between $7,000 and $15,000. If the owner’s selected architectural historian determines that the home lacks “historicity” because it has been changed over time, the Heritage Committee and City can routinely force the homeowner to pay thousands of dollars more for the City’s selected historian to “peer review” the original report for which the owner had already paid thousands of dollars. An owner of an Inventory home can be into the process for $30,000 to $50,000 just to resolve the “historicity” piece of the process.

More absurd, if the City-required peer review concurs with the owner’s finding that the property is not historic, the Heritage Committee has been known to reject both the owner and the peer review reports and simply deems the property historic. On at least one occasion, a member of the Zoning staff actually provided input into the peer review document, rendering the peer review report worthless or at least unreliable.

What makes this sting all the more is that five years after its creation, the Inventory was never legally valid to create a presumption of historicity at all, because it was never maintained according to requirements of Public Resources Code Section 5024.1(g). This fact was acknowledged by the City Attorney on September 30, 2015.

Dreams have been dashed and thousands of dollars have been spent by homeowners forced to follow a process that was not properly required by the law. Homeowners, like retired fireman Gene and other seniors just like him, have been deprived of the right to do routine window, door and siding repair without first complying with the Secretary of the Interior standards. An application that should have been granted over-the-counter required an historic assessment because of the Inventory, and a mistaken process requirement by the City’s Zoning staff.

And so we arrive at fireman Gene’s heroic last stand. While many of us were focused on the aftermath of Presidential election debates, Gene was trying to salvage his property rights before the Heritage Committee, which was putting the finishing touches on a proposed revision to the “Historic Preservation Ordinance” that makes the old Inventory look like child’s play.

As proposed, the new law will immediately impact the rights of an estimated 4,000 of the 10,000 residential properties in Laguna Beach, because if you own a home that was built in or before 1955, you are subject to the Secretary of the Interior standards when you sell or “alter” your home, unless determined not to be “historic.” This may require a professional historical assessment. Like people on the flawed Inventory, you no longer live in a home. You live in an “historic resource.” You have to disclose that fact when you sell your house, and so does your real estate agent.

And what’s worse is, you are doomed to the preferences of the person who built your house before 1955, even if the original designer had no architectural taste at all. Most of us are drawn to Laguna Beach because it is a community that supports creativity and individual expression. However, if the Heritage Committee has its way, going forward you will be subjected not only to Design Review, but also to an historic assessment. And owners will be severely limited to what they can do with their homes.

Forget about expressing your tastes through your own architectural style, which a majority of the Heritage Committee thinks is okay. One member observed that homeowners would still be free to express their individual tastes on the inside of their homes. Anything on the outside is no longer yours; it now belongs to the Heritage Committee.

As heavy-handed as these events sound, if you attended the hearings you would have heard one Heritage Committee member arguing for greater ability to “capture” more properties and bring them under her jurisdiction. Another member advocated that homes over 45 years old would be automatically included. Under his standards, by 2061 every home in Laguna Beach would be historic. Icing on the cake of this process is that four of the seven members of the Heritage Committee defied the direction of the City Attorney and voted to include in their proposed ordinance the properties identified in the invalid inventory as “C” structures.

Even the City historian, who has a very low threshold, opined that these homes were not historic but were just old. In their zeal, Heritage Committee members Rick Gold, Ann Frank, Linda Morganlander and Regina Hartley ignored the opinion of the historian, the direction of the City Attorney and the input of the public, and sought to drag in as many homes as possible. They broke ranks with their more rational colleagues, Clark Collins, Mike Boone and Debbie Lewis, and produced the proposed ordinance demanded by the small and vocal group.

This is not intended to be an indictment of the Heritage Committee, or of any appointed Committee or Board. The work that they do is difficult, and they are dedicated and well intentioned. Still, I heartily disagree with the end product. The hearing process, in which the public testimony was ordinarily limited to two minutes per speaker, ignored property ownership rights. Special and dominating voice was given to groups who want to control what property owners are allowed to do with their own homes. Committee member Morganlander admitted that she has a “focus group” with which she meets outside of the public hearings. This just seems wrong!

If this proposed ordinance goes unchecked, it will add an additional burden to already bewildering property development standards. The ordinance will petrify Laguna Beach. Any change to the exterior of the home will need to comply with the Secretary of the Interior standards. The Heritage Committee also contemplates the formulation of its own “Style Guide” that will dictate what homeowners do.

Respectfully but honestly, this seems nuts!

Most people in town, including me, enthusiastically support the concept of equitable preservation of views and privacy. Our Design Review ordinance is supposed to take care of that, and it does. The point is that Design Review is already expressly charged with ensuring that proposed designs are consistent with the pattern of development and the mass and scale of the neighborhood. If this proposed ordinance passes, it won’t be the owners or the neighbors who decide the architecture, even if the the owner and the neighbors all hate the existing structure and want it to be remodeled. Small, organized opposition will show up at the Heritage Committee to argue that the taste of some person who owned the house in 1955 should trump the taste and needs of the property owner. The house will be stuck in time like DNA in amber. There will be less and less fresh architecture: no new ideas, just old houses.

Our Historic Ordinance should do one thing and one thing only: Preserve properties that are actually “historic,” not just “old.” As stated in the General Plan, this should be a voluntary process laden with incentives and supported by a contract. It should not be compulsory.

Historicity should be established through a nominating and hearing process as described in the Laguna Beach Municipal Code and the Public Resources Code. If a house is not on the Register, it is not historic. Revisions to old houses will continue to be handled through Design Review, which will allow appropriate remodeling and updating of old homes that may no longer meet the needs of the owners. New windows, door, facades and floor plans, and even the size of the home may be freely revised in accordance with Design Review standards.

That works. Neighbors get a say, and so does the homeowner. The decision is not left to a long-dead, original designer and the Secretary of the Interior in Washington D.C., or a Heritage Committee Style Manual.

Restrictions are cumulative and can be devastating. For example, the Downtown is as dark as a dungeon at night. It does not look all that welcoming. Every year at Hospitality Night, people ask why we can’t have more light in the Downtown. It is because we have chosen darkness. The colors are fading into a common, drab, neutral, boring palate. Storefronts are vacant and brick and mortar retail is struggling to survive. Much of this is directly attributable to our regulatory schemes that creep into our Municipal Code over time. And the proposed Historic Preservation Ordinance is a doozy.

Again, this article is not intended as a criticism, in any way, of the diligent people appointed to serve on committees or discretionary boards who are charged with the obligation to carry out the applicable laws. Rather, this is an observation that Laguna Beach’s regulatory scheme is oppressive, regressive, and out of hand. If this proposed Historic Preservation Ordinance passes, the overall regulatory scheme will become much more burdensome. “Old” and “dilapidated” will be the new “historic.” The oldest art form, architecture, will be dead.

So while many of us focus on the aftermath of the Federal election debates, our rights are getting gashed right under our noses by our own local government. To people like fireman Gene, sometimes it is not the big and bureaucratic federal government that impacts your freedom; it is the small and local City government that needs to be watched.

As observed by Jonathan Chait in New York Magazine:

“The myth of localism is rooted deep in our political psyche. Left and right alike use small and local as terms of approbation, big and bureaucratic as terms of abuse. None of us is equipped to see that the government that actually oppresses us is that which is closest to us.”

City Council and Planning Commissioners: Please reject this proposed Ordinance. Brighten and lighten things up a little! For the sake of current homeowners and for the generations to come . . .


Laurence P. Nokes
Laguna Beach

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