Response to CEQA Article

The following letter is in response to an article published by Stu News on July 31, 2018.

Dear Barbara,

Thank you for covering the historic preservation issue.

I wanted to make a couple of clarifications in the article.

“Historic resource” is a defined term in CEQA. In a nutshell, lead agencies (like the City) are required to treat properties listed on a state or national historic register as historic resources. Properties listed on a local register, or on a valid local inventory are “presumed” to be historic resources. However, the presumption of historicity may be rebutted by a preponderance of the evidence.

In Laguna, we have a register. There is consensus that houses listed on the register are “presumptive” historic resources. We also have an inventory. However, the inventory is not valid to create a presumption of historicity, because it was not maintained as required by law to make it valid. Therefore, houses listed on the 1981 inventory are not “mandatory” or “presumptive” historic resources.

In Laguna, our General Plan makes it clear that our historic preservation program is voluntary and incentive based. The Mills Act, for example, is a powerful incentive for some owners to voluntarily participate in preservation requirements, in exchange for property tax relief. Other incentives exist as well, such as allowing a non-conforming structure to maintain the benefits of relaxed setbacks or inadequate parking in exchange for an agreement to preserve the old home.

For many owners of older homes, these incentives don’t help. Owners may need more space for their families. A senior citizen may need modifications to make the house more livable. The environmentally conscientious may wish to replace old windows with new, or an old garage door, or new siding, or new roof.

This is where the problem starts. To remodel a home, a homeowner must apply for a property development permit. This application goes to the City’s zoning plan check. If the house is 50 years old, or was listed on the 1981 inventory, the zoning staff requires that the homeowner hire a historic preservation firm to “assess” the house. This can cost $3,500 to $10,000, paid for by the homeowner. If the assessment determines that house does not meet the qualifications of an historic resource, the staff requires the report to be peer reviewed, again at the expense of the homeowner. The issue then goes to the historic preservation committee, which makes a recommendation to the DRB. The DRB makes a decision as to whether the house is an historic resource. That decision may be appealed to the city council. The city then takes a formal action to deem the property an historic resource, even over the objection of the homeowner. These are the so-called “discretionary historic resources” that homeowners are concerned about.

Laguna has a robust DRB program that considers “neighborhood compatibility,” neighborhood character,” and the “pattern of development” in remodel applications. A determination that a house is an historic resource subjects the property owner to restoration standards promulgated by the Secretary of the Interior for the “Treatment of Historic Places.” These restorations must also be approved and monitored by – you guessed it – an historic preservation firm at an additional expense to the homeowner.

Historic preservation is laudable, and should be encouraged through the use of incentives, as stated by the General Plan. For those who wish to participate, absolutely go for it. But for owners of homes 50 years old or older, who are not listed on a national, state of valid and voluntary local register, who simply wish to remodel their homes like everybody else, the city should not muscle them into an historic assessment at the homeowner’s expense. They should just go to DRB.

A property that does not fit the definition of “historical resource” as set forth is CEQA does not become an historical resource until the government takes an action to deem it so. If the government wants to force a property down that path, all of the expense and the burden of proof should be borne by the government, or by the party asserting historicity of someone else’s home.

Laurence P. Nokes, Esq.