Historic Preservation Ordinance: Council clarifies City’s position on CEQA requirements

The City Council on Saturday took the legal position that the California Environmental Quality Act does not require the city to evaluate projects during a design review to determine if the structure is a local historic resource.

Requirements for the local historic resource designation on projects are up to the lead agency, in this case the City, according to the motion made by Councilman Steve Dicterow and approved by the Council.

Dicterow’s motion frees up the Historic Preservation Task Force to proceed with its review of the proposed revisions to the Historic Preservation Ordinance and to make policy recommendations to the Council. Projects already designated as historical resources by the state or federal governments would have to be addressed as such.

“The motion means the Task Force has the discretion to require or not require consideration of structures as historic resources,” said Dicterow on Sunday.

Subject to consistency with other city ordinances, the Task Force may decide that property owners may opt out of the designation of their property as a historic resource during a discretionary review by the Design Review Board, Planning Commission or Ministerial [over the counter].

Should the Task Force favor voluntary inclusion on a list of historic resources, a system should be designed that creates as much incentive as possible to get people to want to be on the City’s Historic Register, Dicterow said.

Inclusion on the Register has always been voluntary.

“Our decision Saturday was a matter of law,” said Dicterow. “The Task Force will address policy.”

The goal of Saturday’s hearing was to clarify the City’s legal position on whether the local ordinance complies with the California Environmental Quality Act and federal law related to the determination of a property’s historicity and the property rights of its owners.

“Property rights are one of the most important things we have,” said Mayor Kelly Boyd. “I don’t want somebody telling me what I can do with my house.”

Councilman Bob Whalen supported the voluntary designation of a property as a historic resource by the owner, provided it complies with state and federal law.

“The bottom line is people sat up here [on the dais] 30 years ago and intended it to be voluntary and it should be voluntary,” said Whalen. “We need to get back to a clean slate.”

His words resonated with the standing room only crowd that attended Saturday’s hearing.

“Holey Moley,” exclaimed Mayor Kelly Body, when he saw the number of people in the audience who wanted to testify.

A total of 41 members of the audience raised their hands to indicate they had something to say.

Attorney Kathy Jenson laid out the City Attorney’s position, opining that if there is the potential for a structure to be historic, that even in the absence of local preservation requirements, the city must follow CEQA guidelines, using the criteria for the state’s historic register.

Jenson was followed by Deborah Rosenthal, representing Laguna Beach Preservation Coalition.

“We wholeheartedly support the staff report,” said Rosenthal. “Staff recognizes the significance of historic resources.”

Resident Barbara Metzger said she hoped the Council would agree with the City Attorney and clear the way for the Task Force to make necessary revisions to the ordinance.

However, a majority of speakers from the audience supported the position taken by Laguna Beach attorney Larry Nokes.

Nokes opined that the City has no duty to consider the historic status of structures being reviewed for remodeling and has the discretion to not consider such status.

“Just old doesn’t mean historic,” said architect Donna Ballard.

Roy Gallagher said he had been through the process, and it should be incentive-based and voluntary.

“I don’t believe anyone should be held hostage because they were arbitrarily put on a historical preservation list without knowing it and without their permission,” said Patricia Tartaglia. “The red tape that these homeowners and voters go through when they find their homes on the historical preservation list is appalling. You are making these people victims of an unjust system.”

Twenty-nine speakers favored the property owner’s right to decide whether or not to seek the local historic resource designation. Eleven opposed voluntary inclusion as a historic resource. Council candidate Ann Christoph declined to sign either list.

Here is actual motion made by Dicterow, as recorded by the City Clerk. It could get changed for clarification, she said:

Subject to a structure being on the National or State register, the City of Laguna Beach is not obligated and may choose not to consider a structure as a historic status during review of a discretionary action, subject to the Historic Preservation Task Force also reviewing consistency with other current city ordinances; direct the Task Force to consider refining or drafting criteria for a local historic resource (or not), either narrowly or broadly, voluntarily or involuntarily; and if voluntarily, to design a system that creates as much incentive as possible to encourage people to want their structure to be on the Historic Register. In the transition period, under the current ordinance direct staff to process what is needed related to the CEQA standpoint paid by the City; and the subcommittee will remain the same subject to the November 6, 2018 election results.

By Barbara Diamond

Originally published in Stu News Laguna, August 3, 2017