A Solution to Simplify Historic Preservation Rules
If you own a property in Laguna Beach built before 1955, you must be concerned about the impact of the new proposed historic preservation ordinance on your property rights. Simple remodels to homes of that age are now potentially “historic” by city standards. You may have to hire an historian to prove to the city that your 1955 house is not “historic.”
This new rule augments the already onerous standard faced by the 500 or so owners whose homes are listed on the city’s “historic inventory.” This inventory has been debunked as neither having been prepared or maintained in accordance with California or federal law. The proposed ordinance seeks to “reanimate” this legislative corpse by simply deeming it valid, erasing consequences of failing to prepare and update the inventory according to the law. Simply ignoring the flaws that plagued the inventory from the beginning – that the homeowners were never informed of the consequences of being included on the list before they were deprived of important property rights – the new ordinance ratifies the old illegal inventory. After 36 years, owners of inventory homes have yet to have a hearing in which to challenge their rights to remodel their homes according to their tastes, subject to valid city zoning standards.
This much is clear: Whether through an inventory listing or because of age alone, a declaration by the city that your home is “historic” may thrust your renovation plan into an extra layer of expensive scrutiny, beyond the already onerous process of design review and City Council appeals.
Retention of the historic register in the new ordinance is positive. The register provides significant financial and site development incentives to those willing to provide a voluntary commitment to preserve their homes. The incentives encourage a willing, voluntary participant to nominate his or her home for inclusion on the register.
The inventory, on the other hand, is a list on which homeowners never asked to be included. They were never told of the stifling impacts that inclusion would have on their property rights and, after they were listed, they were never given a way out. The city treated inventory homes as “historic resources” which could only be remodeled pursuant to strict federal standards under the watchful eye of a paid historian. Your right to remodel your inventory home investment belonged to the city.
In addition to creating a new 1955 threshold for historicity and raising the inventory from the dead, the new proposed ordinance retains the mushy rating structure introduced in conjunction with the 1981 inventory. Simplified, if your inventory house is deemed to be “very historic,” you get an “E”. If it is “sort of historic,” you get a “K”. If it isn’t historic at all but contributes to the neighborhood vibe, you get a “C”. I have simplified these ratings, and they are mentioned in Laguna Beach Municipal Code Section 25.45.004, which refers the reader to the General Plan.
Here is the conundrum. People with homes on the inventory hate the fact that their homes are listed. Their property rights were stolen without a chance to object. Others, who in good faith believe that the inventory is necessary, are concerned that the inventory homes will be lost forever if control is left to the discretion of the property owner. The proponents of the inventory argue that allowing change will make it so that Laguna is not Laguna any more. The rights of the owner are lost on these pro-inventory advocates.
I offer a solution: Recognize that the inventory is invalid and it needs to be scuttled. The current inventory may still be used as a reference for proposing structures for inclusion in a new and valid inventory to be created in accordance with the law. The amorphous “E”, “K” and “C” designations must be eliminated. Evaluate every house in Laguna Beach and propose for each house a specific California historic preservation status code. These status codes are well established, objective statements for designating the historicity (or not) of a building.
Upon assignment of accurate status codes by competent architectural historians, notify each homeowner of the status code assigned, explaining the impacts of the code designation. Notice a public hearing for each home. Provide every homeowner, after proper notice and after being fully advised of the burdens and benefits of the status code assignment, the opportunity to present substantial evidence at the hearing as to the designation given to his or her home, and the impacts to his or her ownership rights.
At the public hearing, each publicly elected or appointed official will be required to look each affected homeowner in the eye and personally justify the taking of these important property rights.
Laurence P. Nokes
Local attorney Larry Nokes is also president of the Chamber of Commerce.
Originally published in The Indy on November 25, 2016
There is another possible option, if the City persists with arbitrary assignment of houses to the historic list without owner consent. that is:
1 – Registration on a historic/heritage list would be voluntary by owner.
Maintenance of properties to heritage standards would be an owner responsibility
2 – Mandatory registration (determined by City without consent by owner) –
Recognize that any City mandated alteration to maintain “historic nature” that is not agreed by the property owner be paid for by City through a non-profit corporation funded for the purpose. (This hopefully avoids the creation of a “taking” which would be an action available to owner to recover losses from City.)
Owner could opt for the non-profit to purchase the property at the then Fair Market Value. (Owner obviously would have to move). Non-profit would be required to purchase.
Non-profit could then upgrade or not to heritage standard and resell at an advantageous time (when the fair market value would be higher) to recover costs.
Capitalization of non-profit could be by loans from City, or City guaranteed bonds issued by non-profit.
The purpose of the above is to shift any reduction of value of an involuntary assignment of a home as “historic” or “heritage” away from the owner to the organization that is imposing the heritage restriction.