Risk, Rewards In Refining Historic Preservation Rules

A retired firefighter who spent his career protecting others is now being forced to defend his property rights from an assault led by a small but vocal group seeking to declare his private home a “historic resource” and freeze it in time. During the last of several hearings conducted by the Laguna Beach Heritage Committee to modify the City’s Historic Preservation Ordinance, Gene D’Isabella told his story.

The problem started in 1981. A “historian” drove around Laguna and photographed approximately 850 homes, assigning them an “E”, “K” or “C” rating. A list was created, called the “Inventory”. Gene’s home was on the inventory, but he was not alarmed. The City General Plan clearly stated that the City’s preservation effort was to be strictly voluntary. If a homeowner was inclined, and Gene was not, he or she could apply to included the home on the City’s “Historic Register”. Successful applicants shared in a variety of incentives, including property tax reductions, but they were required to enter into a 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:

The Historic “Register,” requires a nomination process and an evidentiary showing 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.

The Historic “Inventory,” is the product of the above described drive-by photo safari in the early 1980s. Homes were classified without input from the property owners. Involuntary inclusion on the Inventory entitled the homeowner to nothing in the way of benefits.

Over time, something changed. Privately owned Inventory homes were quietly reclassified by the City as “historic resources.” These “resources” would now be subject to standards which disregarded tastes and 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. It 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.

Under Public Resources Code Section 21084.1, homes included on a state or local “Register” (voluntary), or a valid Inventory (involuntary), are presumed to be historic resources. Modification causing “substantial adverse change” in the resource may have a significant effect on the environment. As applied by the City, if your home is on the Register or the Inventory, remodel options are limited to standards established by the Secretary of the Interior. Laguna’s Inventory was never legally valid to create a presumption of historicity at all, because it was not updated every five years as required by Public Resources Code Section 5024.1(g). This was acknowledged by the city attorney on Sept. 30, 2015.

Gene never made such a contract with anybody. He had the same burdens as Register homes but enjoyed none of the benefits. The City provided him no way off of the Inventory, even though the statute allowed the historic presumption to be rebutted by a preponderance of the evidence.

Remodel proposals for Inventory homes are routinely rejected by the City for failure to conform to the Secretary of the Interior standards for the “treatment” of “historic resources.” Homes on the Inventory are conclusively presumed by the City to be historic resources, requiring Inventory properties to be assessed by an architectural historian, at the homeowner’s expense.

The proposed revision to the “Historic Preservation Ordinance” immediately impacted an estimated 4,000 of the 10,000 residential properties in Laguna Beach. Homes built in or before 1955 may be subjected to an assessment by the City historian. Owners must prove that home is not historic. Remodels may be limited to the Secretary of the Interior standards, and owners must disclose to buyers the home may be a “resource”.

A contemplated “Style Guide” will further restrict homeowner remodel options.

Most people in town support the concept of equitable preservation of views and privacy. Our Design Review ordinance takes care of that. Design Review requires that proposed designs remain consistent with the pattern of development and the mass and scale of the neighborhood. If this proposed ordinance passes, owners and neighbors will not determine the architecture. The house will be stuck in time like DNA in amber. No fresh architecture: no new ideas, just old houses.

Our Historic Ordinance should do one thing: Preserve properties that are actually “historic,” not just “old.” This should be a voluntary process with incentives and supported by a contract. 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 or the neighborhood. New windows, door, facades and floor plans, and even the size of the home may be freely revised in accordance with Design Review standards.

Laguna Beach’s regulatory scheme is already limiting. If this Ordinance passes, our regulatory scheme will become much more burdensome. “Old” is the new “historic”. The oldest art form, architecture, will be gone.

Larry Nokes

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