Laguna Beach Historic Preservation Coalition's October 18, 2017, letter to the Planning Commission
We have been participating faithfully in the planning process related to the City’s historic preservation program and ordinance since late 2015. We have attended every meeting and workshop, have studied the materials carefully, and made timely and focused comments. Even after five long and broad-ranging hearings at the Planning Commission we find that the resulting ordinance is deficient in multiple ways. We cannot support the ordinance and we urge you to vote NO on the documents before you.
We have raised many issues repeatedly in prior hearings that have not been responded to nor are they reflected in the draft ordinance. These include:
Protecting “C” contributive (6L) properties by providing demolition controls (25.45.020 and 25.45.028) and review by the Heritage Committee; including them as eligible for the Historic Register and eligible for the State Historic Building Code. As a result the ordinance as written will result in cumulative loss of those structures.
Incorporating Design Review and Heritage Committee comments, policy decisions in handling “C” (6L) properties and recommended changes to the ordinance including:
Revision to the definition of “Demolition” to include damage to the historic integrity and significance.
Provide for the services of the historic monitor during construction
Inclu de guidelines 25.45.014 (C) that provide for preservation of the property’s historic character and integrity.
Creating a complete inventory of historic resources and avoiding the arbitrary 70-year cut-off standard for historic consideration, the one-at-a- time historical evaluations and the resulting expense for the city and uncertainty for property owners.
Providing for a “written agreement” to preserve a historic building without it being part of placing the property on the Historic Register is an unnecessary and confusing component in the ordinance, since the goal and content of both agreements would be the same.
Providing for the creation and simultaneous implementation of the “Style Guide” as part of the ordinance package.
Resolving internal inconsistencies that still plague the document.
Avoiding policy changes that not only do not implement but are contrary to the General Plan and the Historic Resources Element or the Residential Design Guidelines.
There are many additional problems in the present draft and we list a number of these here. With more time to review we are prepared to produce a detailed critique when the item is considered by the Council or at a future workshop with the Commission should you decide to reject this version of the ordinance.
The use of terminology is not consistent, for example, the terms historic resource, significant resource, and historic structure are used interchangeably and not all are defined.
The strikeout version of the ordinance is not consistent with the final text of the ordinance in the agenda packet.
There is a lack of process for 6Ls to apply for incentives.
The term “historic fabric” is introduced which is not defined and where “historic integrity” would be more appropriate. 25.45.012 (E)
Allowing 6L structures to install “similar or new” windows and doors when previous drafts required “in-kind or similar.”
Disclosure requirements do not include 6Ls or properties on the Inventory.
Contributive properties--C’s (6Ls) should not have to have other similar C (6L) properties nearby in order to be protected or considered to be Cs (6Ls). 25.45.004 “Contributive property” (3)
Limit of 15 parking space incentive for historic preservation may not be appropriate to all buildings and may unduly discourage historic preservation. 25.45.010 (A) (3)
The concept of allowing more incentives depending on the extent of historic preservation is a faulty one, since the preservation is to comply fully with the Secretary of Interior Standards in order to qualify for any incentives.
An appeal of the director’s decision regarding whether a property is a historic resource was first to be heard by the Heritage Committee if there was a question. This draft would require an expensive appeal to the City Council as the only recourse. 25.45.006 (C)
25.45.010 (N) (1) would appear to apply to residential structures but the wording only says “structures.”
25.45.010 (G) and (L) need examination and a rewrite.
The definitions include “historic landscape” yet there is nothing in the ord inance that directs how these landscapes are to be evaluated or preserved.
These observations represent only a few of our concerns with this ordinance.
The Commission should not assume that because we are recommending a NO vote on this ordinance and others will also recommend voting NO for other reasons that you have struck an appropriate compromise where each side is just a little unhappy. That is not the case. This ordinance is not well written nor is it good public policy. The Commission should reject it.
Laguna Beach Preservation Coalition (Ann Christoph, Johanna Felder, Norm Grossman, Becky Jones, Barbara Metzger, Greg O’Loughlin, and Verna Rollinger)
“Preservation Paralysis,” Village Matters column by Ann Christoph, The Indy, Sept. 1, 2017
After months of hearings on a revised historic preservation ordinance, the heritage committee and the design review board agreed on an approach that would allow more flexibility in historic property review and integrate California Environmental Quality Act (CEQA) requirements into the city’s processes.
Now that the ordinance is being reviewed by the planning commission, new approaches are being suggested that will back-track on the previous work and make historic status more uncertain for property owners.
Let’s say we bought a building that was built in the 1920s (or ‘30s or ‘40s, it doesn’t matter) with the intention of tearing it down and building our dream house. We hire an architect, go over all our wishes and ideas. The architect, after several iterations comes up with a plan we really love. “So let’s submit it for city approval,” we say eagerly. The architect meets with staff and hears, “Well, wait, considering the age of your existing house, it may be a historic resource. We have this process…where your property is preliminarily reviewed by the director of community development. If he thinks it is potentially a historic resource he will require that a historic report be prepared.”
“What!?” we say, very upset. “How were we supposed to know this? We didn’t want to buy a historic house. We just want to build our wonderful new house.”
A similar scenario occurred recently for a house that had not previously been noted as historic on Coast Highway near 1000 Steps Beach. There was a historic assessment and two peer reviews, an appeal to the city council focused on the historic issue and now there is a Coastal Commission appeal and a lawsuit.
This kind of situation does not benefit the applicant, neighbors or historic preservation. But this is what the current draft of the historic preservation ordinance is setting us up for by delaying a historic determination until an applicant comes to the counter with a proposed project.
Currently the city’s historic evaluation process is based on having an adopted inventory of historic resources that the public can refer to in order to understand in advance if a property is presumed to be historic. We have an inventory adopted in 1982 that was updated in 2014. A supplemental inventory is needed to document properties that were missed or have become historic since the first one was prepared. This combination would relieve uncertainty and avoid the last minute surprise scenario.
But instead of using this approach, at its last meeting the planning commission directed that the historic inventory be dropped from the ordinance.
This means that instead of using an inventory of properties that are “presumed to be historic” to advise property owners of their building’s historic status, each property would be considered individually when applications are made. This would not only be costly for applicants and the city (the ordinance requires the city to pay for historic assessments) it would add tremendously to the contentiousness of project review. As well as adding to the uncertainty for owners, this approach would ultimately result in the loss of more historic structures because of the overlooking of potential historic resources and misunderstandings, and it would diminish support for the historic preservation program.
We are looking at lifetimes of disputes and hearings over historic properties, one by one. Our planning processes may be difficult now, but this will paralyze us.
There are numbers of property owners who have objected to the ordinance meeting after meeting. They want the city’s historic preservation program to be voluntary and then they will “opt out” or they want their properties removed from the inventory.
The planning commission’s idea to eliminate the inventory altogether seems to be an attempt to placate these property owners.
This approach may quiet the objectors for this ordinance review cycle, but it ultimately does property owners a disservice by giving them the false impression that taking a property off of an inventory or not having an inventory means their property is not a historic resource and doesn’t have to comply with historic preservation rules.
But that is not the case. Just leaving references to the inventory out of the ordinance doesn’t mean that the properties listed on it are no longer historic.
If a property is a historic resource, it does have to comply under CEQA and with the provisions that apply to historic resources.
With the continued use of the inventory, making the inventory as complete as possible, and giving appropriate disclosures, property owners would know early in their decision-making processes. They will learn of the benefits of being part of Laguna’s historic preservation program and how a preserved and embellished historic property can become a dream house with a story like no other. They can plan to take advantage of the incentives, including property tax relief and relaxed building, parking and setback standards. This will rarely happen if the news of having a historic property is a last minute surprise.
Removing the inventory from the ordinance only kicks the can down the road, leaving the contentious disputes to poison our review processes for years to come.
The planning commission will consider the historic preservation ordinance next at its meeting of Sept. 6.
Village Laguna’s August 31, 2017, letter to the Planning Commission
We appreciate this opportunity to express our concerns about the revised Historic Preservation Ordinance dated 8-25-17. Our response is organized in several parts, beginning with suggested revisions and questions and concluding with a critique of the general approach.
1. Ambiguities and omissions in the text
The definition of “Demolition” (25.45.004) includes only the removal of exterior walls and/or framing, while the definition of “Substantial alteration,” which includes demolition, includes anything that would “impair the significance and integrity of a historical resource.” The Design Review Board pointed out this discrepancy and asked that the “significance and integrity of a historical resource” be included in the definition of demolition as well. This change was not included in the ordinance sent along to the Planning Commission and should be made in this version. (Staff has explained [in an e-mail message, 8-30-17] that incorporating the “significance and integrity” phrasing into the definition of “Demolition” might lead to confusion because “Demolition” is defined otherwise elsewhere in the Municipal Code. However, the definition here specifically says “for the purpose of this chapter,” so there should be no problem with including it in specific reference to historic preservation. At the same time, the definition already in the code should be modified to include the special consideration of potentially historic structures.)
The reference “(36 CFR Part 61)” cited in the “Historic monitor” definition (25.45.004) is unclear. (What is it?) In addition, the only mention of this professional seems to be under “Pre-construction meeting” (25.45.012[E]), where it’s followed by “if required.” Yet the definition says that this person oversees a project “to ensure that the construction and modifications are consistent with the Secretary of Interior’s Standards.” Does this mean that this person is not required if the project does not require following those standards? Both the definition and the description in 25.45.012 should be expanded to clarify the role of this person in the process of construction, not just at an initial meeting. This was one of the recommendations of the Design Review Board.
The “Historic preservation style guide” is defined (25.45.004) but nowhere mentioned in the ordinance. This proposed document was included by the Heritage Committee to provide preservation guidance and a separate set of local standards for evaluating changes to C-rated structures under CEQA. Now it seems to have been abandoned.
Where the director is permitted to waive the requirement for a historic assessment (25.45.006[A]), the criteria for doing that should be spelled out. Among other things left unspecified in this section is who pays for the historical assessment described in this section.
The section on incentives (25.45.010) would be easier to understand if the exceptions were grouped together (for example, “Structures on the city’s historic register or structures identified as having a ‘C’, ‘K’ or ‘E’ rating pursuant to section 25.45.008 are eligible to apply for the following preservation benefits, with the exceptions noted below.”)
For the parking credit (25.45.010[A])., the “degree to which the historic character of the building is preserved and/or enhanced” should be replaced with a more objective measure that incorporates the results of the parking demand study mentioned below. “Degree of preservation or enhancement” is inappropriate as a measure because the structure should conform to the Secretary of the Interior’s Standards or a set of local standards developed for C-rated structures in order to be granted incentives.
The Secretary of the Interior’s Standards, which were prominently featured in the earlier draft, are mentioned only in the definition of “Historic monitor” and under “Environmental Determination” (25.45.012[D]), and the language of the latter suggests that they’re an optional alternative to “the design guidelines” (which appear only in 25.45.014 and seem to apply to C-rated structures). What is intended here? Are E- and K-rated structures no longer to be required to follow the SOI Standards?
The design guidelines (25.45.014[D]) don’t include any mention of the “historic character” of C-rated structures that is elsewhere referenced as something to be preserved to be eligible for incentives (25.45.010).
The section on disclosure (25.45.018) is missing the paragraph on “City Disclosure” that appeared in an earlier draft. That paragraph should be restored, with the year “1955” to be replaced by whatever age criterion the Commission decides upon. In addition, the real property report should include the date the structure was built, any other historical data known about it, and the notice that structures of the specified age will be regarded as potentially historic and eligible for preservation incentives and restrictions unless a historic assessment proves otherwise.
The Commission has expressed interest in having the City hire a staff person dedicated to historic preservation, but the ordinance doesn’t reflect this.
2. Inconsistencies in the treatment of C-rated structures
The determination to deny the historic character of C-rated structures has some apparently illogical effects. Continuing to recognize C-rated structures as historic resources as they have been for 35 years while applying local standards to their alteration (as recommended by the Heritage Committee and the Design Review Board) would resolve the following inconsistencies:
C-rated structures aren’t eligible for listing on the historic register (25.45.004), but they are eligible for certain incentives if their owners sign an agreement to “preserve their historic character” (25.45.010). How is this agreement different from placement on the register?
At the same time, there are already some 80 C-rated structures on the register, and we assume that they’ll remain there. How is this discrepancy in the treatment of C-rated structures—some historic resources, some not—to be explained?
The property rating system (25.45.008) has four possibilities—E, K, C, and “no historic significance”—suggesting that C does have historic significance.
C-rated structures are eligible for nearly all the incentives available to structures on the register but don’t require a recommendation from the Heritage Committee to receive them (25.45.010). Isn’t it odd that the less-valued structures have the easier road to benefits?
They are also excluded from Heritage Committee consideration of alterations (25.45.012) and from using the State Historic Building Code instead of the current one (25.45.010[C]). Does this make sense if they’re under an agreement to “preserve their historic character”?
The disclosure on the real property report excludes C-rated structures (25.45.018[A]), but since simply their age (70 or older) has implications for demolition, relocation, or substantial alterations (25.45.006[A]), shouldn’t this fact be shared with prospective buyers? The Real Property Report mentioned in the section on disclosure should include the date the structure was built, any important historical data known about it, and the notice that structures 70 years old or older will be regarded as potentially historic and eligible for preservation incentives and restrictions unless a historic assessment proves otherwise.
The special requirements for demolition of E- and K-rated structures and structures on the register—the waiting period and the findings---are also denied to C-rated structures (25.45.020), even though they are recognized as contributing to “the overall character and history of the neighborhood” (25.45.004) and having “historic character” (25.45.010) and substantial alterations to them are regulated (25.45.006). That a coastal development permit is required for demolition is virtually meaningless in terms of protection, given that no history-related findings are required for approval and that the Design Review Board often hears a proposal for demolition only when it has the plans for the replacement project before it.
The property maintenance requirement is limited to structures on the register (25.45.026). Shouldn’t it be extended to any structure that has a preservation agreement?
The penalties for illegal demolition also exclude C-rated structures while including “an unrated structure more than 70 years” (25.45.028). This means that the only 70-year-old or older structures not subject to demolition penalties would be those identified as C-rated structures on the City’s current inventory. Surely this is an oversight?
3. The age criterion for historic significance
The choice of the cutoff date of 70 years or older hasn’t been justified and should be reconsidered. CEQA doesn’t require an age criterion, though 50 years, which is the criterion for the state and national registers, is used by many cities. It also needs to be made clear that a house that isn’t that old might still be historic under exceptional conditions.
4. Abandonment of the inventory
When the Planning Commission decided to downgrade the existing Historic Resources Inventory to a “resource document,” to be used for informational purposes only, and not to adopt Jan Ostashay’s revised version in its place, the City Attorney pointed out that this would throw all of the City’s potentially historic resources into a “no-man’s-land,” and this is apparent in the new draft of the ordinance. Removing a structure from the local inventory does not affect its status as a potential historic resource under CEQA. Structures that meet the state’s criteria must be regarded as of potential historic value unless an assessment has shown otherwise.
Section 24.45.006 says it all: Alterations to any house 70 years old and older that’s not on the historic register will be subject to examination as a possible historic resource by the director, the Heritage Committee, and/or the Design Review Board. The impact of all this not only on property owners—who will be left uncertain about what they can do with their houses until they get to the front counter with their proposals—but on the staff and the community that will be paying for its time is likely to be enormous.
The Commission may have been influenced in taking this approach by the notions that (a) the original inventory was casually and carelessly done and (b) the failure to update it regularly has made it invalid. Both these assumptions are incorrect. First, the inventory was prepared following federal and state guidelines by qualified professionals with the assistance of an advisory board of Laguna citizens. Second, as our attorney, Deborah Rosenthal has informed the commission (in her July 5 letter),
“The Historic Inventory was formally adopted by resolution of the City Council in 1982 as ‘the best representative examples of historically significant architecture’ in the City.
“PRC § 5020.1(k) defines a ‘local register of historical resources’ as a “list of properties officially designated or recognized as historically significant by a local government pursuant to a local ordinance or resolution.”
“Any list adopted by formal resolution qualifies under PRC §5020.1(k), even if it is called an inventory.
“There is no ‘5-year rule’ for lists adopted by formal resolution under PRC 5020.1(k).”
Abandoning the inventory may be an attempt to address the concerns of property owners who object to having their houses on it, but doing so would change their status only to make it more uncertain.
A better solution would be to create a truly updated inventory (including all of the City’s potentially historic resources—E’s, K’s, and C’s) and develop a historic preservation guide for it.
5. Violation of the General Plan and CEQA implications
Setting aside the question whether it’s even possible to undo the formal 1982 resolution adopting the inventory, it would certainly be a violation of the General Plan to downgrade the inventory and would require amendment of the Historic Resources and Land Use Elements of the Plan. Specifically:
Land Use Element Goal 2, Policy 2.2, Action 2.2.1, “Update the City’s Historic Resource Inventory”
Historic Resources Element Goal 1, Policy 1.1 “Create a historic preservation task force to review and update the Historic Resources List (Inventory)”
Historic Resources Element Goal 1, Policy 1.4, “Expand the Mills Act contract program to include ‘K’ and ‘C’- rated structures as ‘qualified structures’”
In addition, downgrading the inventory would require an environmental impact report, given the predictably significant cumulative impact of abandoning the presumption of historic value for 500+ older homes. Once again, Deborah Rosenthal has told the Commission that “the draft Historic Ordinance revisions are not categorically exempt from CEQA”:
“Revisions to the Historic Ordinance do not fall under the exemption for adoption of local coastal plans and programs under CEQA Guidelines § 15265.
“Removing protections from ‘C’ rated properties does not fall under the exemption for actions that ‘assure the maintenance, restoration, enhancement, or protection of the environment.’ Relaxation of standards is expressly excluded.”
We hope that you will consider all of these concerns before making your recommendation to the City Council.
Ann Christoph, Johanna Felder, Norm Grossman, Becky Jones,
Barbara Metzger, Greg O’Loughlin, and Verna Rollinger
Ann Christoph's Presentation at the June 26, 2017 Village Laguna General Meeting.
Village Laguna’s March 13, 2017, letter to the Planning Commission:
Village Laguna representatives have participated in the meetings on the Historic Preservation Ordinance for over two years. Generally we support the approach and provisions contained in the proposed draft ordinance. The ordinance addresses several key issues not addressed in our current ordinance:
Integration of CEQA into our historic preservation program.
Evaluation of properties not on the Inventory for historic resource status.
Improved incentive program.
City funding of key historical reports
Local standards for evaluation of improvements to historic properties
These improvements are intended to make the process clearer and more helpful for owners of historic properties, staff, and members of the public who are involved in implementation of the historic preservation program.
Historic preservation is a key component in maintaining the unique qualities of Laguna Beach, and preserving our village character largely depends on preservation of our historic resources—the small scale, natural materials, home-made appearance of construction, unusual responses to the topography and neighborhood features. Both innovative modern (Halliburton house--1938) and period design (water district, lumber yard) have a place in our historic preservation spectrum. We urge you to support the ordinance and review it with an eye for provisions that will be most effective, clear, and compatible with other city ordinances.
We are grateful that the staff has produced a Q and A document. This should go a long way to addressing the recurrent questions in the public testimony.
There are two concerns that we raised at the Design Review hearing that the Board supported. However, the wording and details conveyed to you in the Design Review memo are not specific.
Our concerns relate to the definition of demolition and the implementation of historic preservation during construction. In both matters we have seen problems that have resulted in loss of historic resources.
The definition of demolition needs to be tailored to preservation of integrity of the buildings. Right now the definition is “any act that removes all the existing exterior wall and roof framing.” By the time those removals take place it will be too late, the historic value/integrity of the structure will have been compromised.
We recommend the following wording:
“Demolition, for the purposes of this chapter, means any act or failure to act that destroys or removes wholly or in part a historical resource such that its historic or architectural character, character-defining features, and significance are materially altered. Demolition permits are subject to compliance with the provisions of the California Environmental Quality Act and Title 14 of this code.”
Monitoring during construction (Page 11 Item G) provides for a preconstruction meeting when starting work on a historic property, but a historical consultant is not included in this meeting. We request provisions that involve the historical consultant consistently during the construction process so that the intent of historic preservation will be properly carried out.
Johanna Felder, President, Village Laguna
Historic Preservation Ordinance Review
Village Laguna’s Letter to the Heritage Committee, Sept. 12, 2016:
Dear Heritage Committee Members,
We’re disappointed that there isn’t a revised draft of the historic preservation ordinance to be reviewed at this meeting. We assume that you’ll be continuing the discussion to a later time so that you can see the changes in language you requested last month before making a final decision. In the meantime, we have some comments on the way things are going.
We continue to be concerned about the treatment of C-rated properties in the August draft.
Item 19 on Tuesday’s City Council agenda is a good example of our future if the ordinance robs C-rated properties of their historical significance. The applicant is requesting removal of a C-rated house from the historic register in order to make modifications to it that the Heritage Committee and the Design Review Board have found inconsistent with its status. Staff’s argument against removal from the register is a very clear and convincing statement of the protection a C-rated house has under the existing ordinance:
“The applicant states in the application (pp. 5-55) that since the structure is listed as a ‘C’-rated structure on the Historic Register, by definition it is not individually historic, and therefore does not meet the criteria of a Historic Resource. Staff disagrees. The current Historic Preservation Ordinance (LBMC Section 25.45) provides that ‘C’-rated, Contributive structures are eligible for placement on the Historic Register, and that structures that are eligible for listing are considered Historic Resources.”
Under the proposed ordinance, the house at 337 Hawthorne Street would not have the protection of being a historic resource and could be altered out of all recognition. We don’t think this is what you want, and it’s certainly not what we would like to see.
Since we were last before you, we’ve consulted an attorney who specializes in historic preservation and CEQA, and the following are some of the things we’ve learned:
1. If a structure has historical value locally (e.g., by being listed on a local register of historical resources), it falls under CEQA (Section 21084.1). A structure that has once been declared a historical resource as part of a survey should be treated as a historical resource unless there is a preponderance of evidence that it has changed (“Understanding Identification of Historical Resources,” CEQA Case Studies, August 2015).
2. Applying CEQA procedures to C-rated structures need not be onerous. A C-rated structure does not have to meet all the Secretary of the Interior’s standards when undergoing alterations if local guidelines have been established to mitigate or avoid significant adverse changes (Section 15064.5(b)(4)).
3. An ordinance that significantly downgraded the status of C-rated structures by declaring them not historic resources would itself require an EIR, and it is difficult to see how the elimination of protection for and potential loss of some 400 structures that the City has long treated as historic resources could be mitigated to the level of insignificance.
From this it appears that we can provide both CEQA protection and appropriate flexibility for altering C-rated structures without creating excessive difficulties for homeowners and staff. We hope that you’ll adopt this approach, continue to recognize C-rated properties as historical resources under CEQA and develop a set of local guidelines for C-rated structures as you put the finishing touches on the new draft.
Johanna Felder, President, Village Laguna; Greg O’Loughlin, President, South Laguna Civic Association; Ann Christoph, Becky Jones, Barbara Metzger
Village Laguna’s Letter to the City Council, July 14, 2015:
We object to the formation of a Council subcommittee to work with the Heritage Committee and city staff on the Historic Preservation Ordinance for the following reasons:
The normal sequence of reviews and recommendations should occur, with the Heritage Committee review, followed by the Planning Commission review. After the Commission makes its recommendations, the Council will have ample opportunity to approve or change components of the ordinance. With the subcommittee approach two council members will have two opportunities to direct the content of the ordinance. This is not appropriate.
All meetings on the ordinance should be noticed public meetings. We are aware that a private meeting was held between staff, some members of the heritage committee, one councilmember, City attorneys and a private attorney who may be representing some property owners. This is not an appropriate way for the city to do business and solidifying this process by appointing the Council subcommittee would be in violation of the Brown Act, unless all meetings were in public.
“…if a legislative body designates less than a quorum of its members to meet with representatives of another legislative body to perform a task, such as the making of a recommendation, an advisory committee consisting of the representatives from both bodies would be created. Such a committee would be subject to the open meeting and notice provisions of the Act. (Joiner v. City of Sebastopol (1981) 125 Cal.App.3d 799, 805.)”
California Attorney General’sOffice, The Brown Act, Open Meetings for Local Legislative Bodies , 2003
In the past council subcommittees have met in private with staff and others to develop direction on future efforts. We object to this practice since it allows projects to go forward for long periods of time without the benefit of public input. The VillageEntrance parking garage is an example of a subcommittee coming forward with a plan that proved to be publicly unacceptable.
Please direct the Heritage Committee and Planning Commission to proceed with the ordinance in the normal course.
Sincerely, Johanna Felder, President, Village Laguna