HomeMy WebLinkAboutAC Training Item #1City of San Luis Obispo, Community Development, 919 Palm Street, San Luis Obispo, CA, 93401-3218, 805.781.7170, slocity.org
Date: October 19, 2017
TO: Cultural Heritage Commission
FROM: Brian Leveille, Senior Planner
SUBJECT: Agenda Correspondence for October 23, 2017 Meeting –Training Item# 1
California Environmental Quality Act and Historic Resources.
Please see the attached background material prepared by Chair Papp for Training Item #1.
The worksheet provides background on regulatory authority and relevant case law that will
be discussed on Monday night. Please review the material and consider some points for
discussion and any questions.
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A PRESERVATION LAW PRIMER
CULTURAL HERITAGE COMMITTEE, CITY OF SAN LUIS OBISPO
INTRODUCTION
Historic preservation outcomes generally lie in the hands of local communities. The State of
California has established, through the California Environmental Quality Act, the process of
making decisions where projects may have an impact on historic resources. Like the Brown
Act, CEQA mandates a transparent process without mandating particular results beyond
the pursuit of mitigation or alternatives where there are significant adverse impacts.
At the national level, Secretary of the Interior Standards provide guidelines that are
referred to by CEQA or local regulations. In addition, the United States Supreme Court has
made a number of rulings over the past century that establish the constitutional validity
and limits of regulations regarding historic preservation.
IMPORTANT US SUPREME COURT RULINGS
These cases largely deal with “constitutional taking,” based on the Fifth Amendment’s
words “Nor shall private property be taken for public use, without just compensation.” A
taking can refer to government acquisition or destruction of private property (physical
taking) or impairment of its utility (regulatory taking).
In Village of Euclid v. Ambler Realty (1926), the Supreme Court ruled that zoning
ordinances were not arbitrary fiat but a reasonable extension of police power asserted for
the public welfare and hence were constitutional. Euclid also established that speculation
in absence of evidence is not a valid basis for a claim of taking (a precedent reflected in
Uphold Our Heritage v. Town of Woodside, a CEQA case decided in 2006 [below]).
Additionally, a due process challenge under the Fourteenth Amendment would have to
show that a zoning law is discriminatory and has no rational basis.
The Supreme Court ruled in Nectow v. City of Cambridge (1928) that zoning must be
related to the public health, public morals, public safety, or public welfare to not be
considered arbitrary or irrational. Hence historic preservation regulations tend to focus on
what is visible to the public and constitutes its exterior environment, known as facadism.
In Berman v. Parker (1954) the court established aesthetics and redevelopment as valid
public purposes for exercising the power of eminent domain.
Citizens to Preserve Overton Park, Inc. v. Volpe (1971) established the hard look
doctrine for environmental impact review. The hard look doctrine allows a court to
intervene if it determines that an administrative agency has not taken a hard look at salient
problems but has instead reached arbitrary or capricious decisions. Overton Park
mandated the pursuit of “feasible and prudent” alternatives and “all possible planning to
minimize harm.” Feasibility and prudence receive further reference in Woodside (below).
Penn Central v. New York City (1978) dealt with a proposal to build a skyscraper directly
over Grand Central Station, which was opposed by the city’s Landmarks Preservation
Commission and took a decade of court appeals to resolve. The Supreme Court concluded
that regulation that does not interfere with reasonable investment-backed expectations
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(e.g., traditional use) does not amount to a taking, even though the property may have a
potentially greater value with a different use.
To quote the ruling, “The New York City law does not interfere in any way with the present
uses of the Terminal. Its designation as a landmark not only permits but contemplates that
appellants may continue to use the property precisely as it has been used for the past 65
years: as a railroad terminal containing office space and concessions. So the law does not
interfere with what must be regarded as Penn Central's reasonable expectation concerning
the use of the parcel. More importantly, on this record, we must regard the New York City
law as permitting Penn Central not only to profit from the Terminal but also to obtain a
‘reasonable return’ on its investment.”
In Nollan v. California Coastal Commission (1987), the court ruled that conditions put on
development must be directly related to the public interest pursued, and in Dolan v. City
of Tigard (1994), the court required rough proportionality between the impact of the
development and the conditions imposed.
CALIFORNIA
CEQA
California’s historic preservation case law is focused on interpreting the 1970 California
Environmental Quality Act, which mandates the steps necessary by a local or state agency
to ascertain and mitigate environmental impact. The “lead agency” is the government entity
overseeing review of a project, in San Luis Obispo’s case almost invariably the Community
Development Department.
CEQA focuses on analysis and public disclosure. Successful legal challenges are virtually
never on bad decisions, only inadequate process (or “prejudicial abuse of discretion”) by a
lead agency. These abuses of discretion consist of (1) not following legal procedure or (2)
not supporting a determination with substantial evidence (that is, facts, reasonable
assumptions based on facts, and/or expert opinion based on facts). CEQA essentially lays
out what constitutes the “hard look” established in 1971’s US Supreme Court decision
Overton Park v. Volpe (above).
That said, CEQA explicitly mandates feasible mitigation of, or alternatives to, significant
adverse environmental impacts in a way that its model, the 1969 National Environmental
Policy Act (NEPA), does not. CEQA mandates that a public agency cannot approve a project
with significant adverse environmental impact—with the exception of projects that have a
specific economic, social, legal, technological, or other consideration that makes mitigations
or alternatives infeasible and specific economic, social, legal, technological, or other
benefits that outweigh the adverse environmental impact. Even impacts that are
substantially lessened by mitigation may remain significant under the law (Laurel Hills
Homeowners’ Association v. City Council of the City of Los Angeles [Court of Appeal,
Second District, Division 3, 1978).
In its first two years, CEQA applied to projects undertaken by state or local government. In
1972 the California Supreme Court concluded in Friends of Mammoth v. Board of
Supervisors of Mono County that CEQA also applied to private projects reviewed by
public agencies, declaring that “the Legislature intended [CEQA] to be interpreted in such
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manner as to afford the fullest possible protection to the environment within the
reasonable scope of the statutory language.” In No Oil, Inc. v. City of Los Angeles in 1974,
the Supreme Court declared the environmental impact report to be “the ‘heart’ of CEQA”
and purposefully set “a low threshold requirement for preparation of an EIR.”
Historic Preservation and Environmental Protection CEQA establishes that
historic fabric is part of the environment and impacts on it are measurable and can be
significant.
Categorical Exemptions from Environmental Review The process laid out in CEQA
establishes first whether a project is subject to environmental review or has one of 33
categorical exemptions (CatExes) from that review. The exemptions most common to
historic preservation are Classes
1 (minor alteration of existing structures)
2 (replacement or reconstruction of a structure in the same place for the same purpose)
3 (new construction or conversion of small structures)
31 (historical resource preservation, rehabilitation, restoration, or reconstruction to
Secretary of the Interior [SOI] Standards)
32 (in-fill development, i.e., development on a previously developed space)
Examples of relevant SOI standards for preservation include
• historic use or use that maximizes retention of historic features
• maintenance of historic character and intact or repairable historic materials
• visual compatibility but distinctiveness upon close inspection of nonhistoric work
• preservation of distinctive features, materials, and techniques and of changes that
have acquired historic significance
• protection and preservation of archaeological resources in place
for rehabilitation include the above plus
• historic features will be repaired rather than replaced; where replacements are
necessary, they will be substantiated by documentary and physical evidence and
match the old in design, color, texture, and materials
• new additions or alterations will not destroy historic materials, features, or spatial
relationship and will be compatible but differentiated and will leave the form and
integrity of the historic property unimpaired if removed (reversibility)
for restoration include the above plus
• designs that were never executed historically will not be constructed
for reconstruction include the above plus
• reconstruction will be used only where documentary and physical evidence allows
minimal conjecture
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• reconstruction of a resource in its original location will be preceded by a thorough
archaeological investigation to identify those features essential in an accurate
reconstruction
• a reconstruction will be clearly identifiable as a contemporary recreation
All of these standards depend on establishing a period of significance for the historic
resource in question.
Exceptions to the Exemptions There are six exceptions to the categorical
exemptions, including—as those most likely in the context of historic preservation—
projects that may
(a) be in an environmentally sensitive location
(b) add to cumulative impact
(c) have a significant effect on the environment due to unusual circumstances
(d) damage scenic resources (including historic buildings) on a designated state scenic
highway (in San Luis Obispo, Highway 1 from the 101)
(f) cause a substantial adverse change in the significance of a historic resource
Defining Unusual Circumstances In 2015 the California Supreme Court in Berkeley
Hillside Preservation v. City of Berkeley gave deference to the lead agency in deciding
that there was no unusual circumstances exception to a categorical exemption, ruling that
the agency had only to provide substantial evidence that the circumstances were not
unusual, and this evidence could not be challenged by a fair argument even with contrary
substantial evidence.
The court also ruled, however, that if the lead agency concludes that there are unusual
circumstances, but that those unusual circumstances do not present a reasonable
possibility of an adverse environmental impact, a fair argument may challenge the impact
determination. (The unusual circumstances argued by Berkeley Hillside Preservation were
in part the much larger size of the house and garage proposed compared to other
properties in the neighborhood.)
Defining Substantial Adverse Change There are two schools of thought and no
established legal precedent on whether “a substantial adverse change in the significance of
a historic resource” is a change that would cause the resource to be removed from
eligibility for historic listing. Under CEQA, lead agencies have the discretion to formulate
their own thresholds of significant impact, but these must be adopted by ordinance,
resolution, rule, or regulation; developed through a public review process; and supported
by substantial evidence.
Eligibility for historic listing depends on seven aspects of historical integrity established by
the US Department of the Interior, which are integrity of
• location
• design
• setting
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• materials
• workmanship
• feeling (evocation of an aesthetic or historic sense of the past)
• association (a direct link between the historic person or event and the site)
Generally a majority or at least several of these aspects are necessary for the historic listing
of a resource; listing can never be justified on feeling and association alone.
Initial Study Where a project is found to be not exempt, CEQA mandates an initial
study that determines whether there is a
• negative declaration or neg dec (no significant adverse environmental impact)
• a mitigated negative declaration or MND (the adverse environmental impact can be
mitigated with specific measures such that it is no longer significant)
• an environmental impact report or EIR, where mitigations or alternatives are
proposed to reduce or avoid significant adverse environmental impacts
In the case of a mitigated negative declaration, the mitigations must be enforceable and
understandable to a contractor, and there must be a clear record of approval by the
applicant of the mitigations before the document is released.
A lead agency can skip an initial study and go directly to an EIR where it is clear there will
be a significant impact or controversy.
Fair Argument A lead agency’s conclusion of a negative declaration or mitigated
negative declaration may be challenged by a “fair argument” that a project may cause
significant environmental impact. A fair argument is generally defined as being a
declaration by a relevant professional who has examined evidence in the specific case,
giving expert opinion or reasonable assumptions based on fact. It does not include
speculation, unsubstantiated opinion, or erroneous information.
In 2004, in Pocket Protectors v. City of Sacramento, the California Court of Appeal, Third
District ruled that a fair argument could be accepted from nonexperts but only in a
nonexpert area such as aesthetic impact. Historic preservation remains an area in which
the courts recognize professional qualifications, which are established under SOI
professional standards.
Courts have consistently held, based on the low threshold established by the California
Supreme Court in 1974’s No Oil v. City of Los Angeles, a fair argument requires an EIR.
Statement of Overriding Considerations According to CEQA, no public agency shall
approve a project for which an EIR has been certified that identifies a significant adverse
impact on the environment unless changes have been made that mitigate or avoid the
effects or a specific economic, social, legal, technological, or other consideration makes
mitigations or alternatives infeasible and specific economic, social, legal, technological, or
other benefits outweigh the adverse environmental impact (21081). The latter case
requires a detailed written statement of overriding considerations based on the EIR or
other substantial evidence. Such a statement of overriding considerations may be
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challenged in court, though the successful challenge will likely depend on process (e.g.,
absence of substantial evidence) rather than product.
Assembly Bill 52: Tribal Cultural Resources In 2014 AB 52 amended CEQA to define
a significant adverse change on a tribal cultural resource (TCR) as a significant effect on the
environment; mandate lead agency consultation with tribes traditionally and culturally
affiliated with the geographical area in which a project is proposed outside the boundaries
of current reservations; recognize tribal expertise regarding TCRs; and uphold preference
for preservation in place of TCRs where feasible.
Cultural Landscapes CEQA protects but does not define a cultural landscape. The
National Parks Service defines a cultural landscape as a geographic area, including both
cultural and natural resources and the wildlife or domestic animals therein, associated with
a historic event, activity, or person or exhibiting other cultural or aesthetic values. There
are four general types of cultural landscapes, not mutually exclusive: historic sites, historic
designed landscapes, historic vernacular landscapes, and ethnographic landscapes.
CEQA Deadlines CEQA mandates transparency but maintains a strict timeline for
public participation and challenge, to which the courts have been deferential. An exemption
from environmental review must be challenged in court within 35 days of a notice of
exemption (NOE) or 180 days of approval/commencement of a project if there is no NOE. A
legal challenge of a negative declaration, mitigated negative declaration, or adequacy of an
EIR must be filed within 30 days of a notice of determination (NOD) or 180 days of
approval/commencement of a project if there is no NOD.
CEQA CASE LAW
Below are the precedents of CEQA rulings on the application of CEQA, deference, historic
listing, fair argument, mitigation, feasibility, and demolition.
HOW CEQA IS APPLIED
In League for Protection v. City of Oakland (commonly referred to as “Montgomery
Ward”), the California Court of Appeal, First District, Division 1 ruled in 1997 that if a
project is not exempt, the two choices are a negative declaration or an environmental
impact report.
In Friends of Sierra Madre v. City of Sierra Madre, the California Supreme Court ruled in
2001 that “CEQA is also concerned with the preservation of historic resources.”
The California Supreme Court ruled in 2008 in Save Tara v. City of West Hollywood that
any action “that forecloses alternatives or mitigation measures that would ordinarily be
part of CEQA review of that public project” is disallowed. However, the court established no
bright line of what such a precommitment would be.
DEFERENCE
The California First District Court of Appeal also ruled in Montgomery Ward that normally
courts defer to a public agency. In CEQA, however, deference goes to reasonable evidence
an action will affect resources. After an EIR is completed, deference goes back to the public
agency. If there is significant conflict, the court defers to the EIR.
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HISTORIC LISTING
Again in Montgomery Ward the district court ruled that the fact that a building is not
listed is not dispositive or determinative (that is, does not dispose of or determine the
question). Thus buildings that are eligible for historic listing are considered equivalent to
those that have already been listed.
FAIR ARGUMENT
Montgomery Ward also established the “fair argument” standard for rejecting a mitigated
negative declaration and requiring an EIR. A fair argument is usually considered to be a
declaration by a professional who has examined evidence in the specific case that a project
may have a significant environmental impact.
In 2004, in Architectural Heritage Association v. County of Monterey (known as “Old
Monterey Jail”), the California Court of Appeal, Sixth District confirmed fair argument.
Experts in this case had made a fair argument that the Old Monterey Jail was historic.
However, the California Court of Appeal, Fifth District in 2008 ruled in Valley Advocates v.
City of Fresno that the Sixth District had confirmed fair argument in the case of Old
Monterey Jail only, because the circumstances were unusual, and that fair argument does
not always apply to whether a building is a historic resource. In 2014, in Citizens for the
Restoration of L Street v. City of Fresno, the Fifth District reaffirmed its 2008 ruling.
The California Court of Appeal, Sixth District in Friends of Willow Glen Trestle v. City of
San Jose also agreed with the Fifth District’s 2008 ruling, as applied to unlisted resources,
because CEQA “(g) of Section 5024.1 shall not preclude a lead agency from
determining whether the resource may be an historical resource for purposes of this
section,” and therefore deference is given to the lead agency. By refusing to hear the case,
the California Supreme Court let the decision in Willow Glen Trestle stand.
In other words, a public agency has discretion over whether a resource is deemed historic.
Once it is deemed historic, however, a fair argument can require an EIR by arguing
significant impact on its historicity. This ruling is analogous to Berkeley Hillside (2015),
where the lead agency was given deference in deciding whether there were unusual
circumstances, but if unusual circumstances were found to exist, a fair argument could
challenge a finding on their environmental impact.
In general, cultural resources do not have as clearly practiced a threshold of significant
impact as other environmental resources.
MITIGATION
Still another precedent from 1997’s Montgomery Ward case is that a historic plaque,
public display, and/or a HABS (Historic American Building Survey) is not considered
mitigation for demolition. “Documentation of the historical features of the building and
exhibition of a plaque do not reasonably begin to alleviate the impacts of its destruction. A
large historical structure, once demolished, normally cannot be adequately replaced by
reports and commemorative markers. Nor, we think, are the effects of the demolition
reduced to a level of insignificance by a proposed new building with unspecified design
elements which may incorporate features of the original architecture into an entirely
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different shopping center. This is so particularly where, as here, the plans for the substitute
building remain tentative and vague.”
In 2001’s Friends of Sierra Madre v. City of Sierra Madre, the State Supreme Court ruled
that CEQA requires adoption of mitigation or a preservation alternative in cases of
“overriding public benefit”
Old Monterey Jail in 2004 confirmed Montgomery Ward’s ruling that a plaque, public
display, or HABS is inadequate as mitigation with this dramatic language: “Drawing a chalk
mark around a dead body is not mitigation.”
In Lincoln Place Tenants v. City of Los Angeles in 2005, the California Court of Appeal,
Second District, Division 7 concluded that “Fundamental goals of environmental review
under CEQA are information, participation, mitigation, and accountability. … Mitigation
measures must be feasible and enforceable. … As part of the enforcement process,
mitigation measures are subject to monitoring and reporting to ensure the measures will
be implemented. … The adequacy of a mitigation monitoring program is evaluated with the
‘rule of reason,’ a rule that requires that the mitigation measures be ‘reasonably feasible.’”
The California Court of Appeal, Sixth District, found in Flanders Foundation v. City of
Carmel in 2012 reasonable suggestions for mitigation must be considered. “The purpose of
CEQA is to inform both the public and the decision-makers, before the decision is made, of
any reasonable means of mitigating the environmental impact of a proposed project.”
FEASIBILITY
In Preservation Action Council v. City of San Jose, the California Court of Appeal, Sixth
District ruled in 2006 an EIR did not adequately consider feasible alternatives to
demolition, adding that a developer not wanting to enact an alternative does not make it
infeasible. Feasible means capable of being accomplished in a reasonable amount of time.
The California Court of Appeal, First District, Division 3 in 2006 added in Uphold Our
Heritage v. Town of Woodside (concerning Steve Jobs’ proposed demolition of his house),
“The fact that an alternative may be more expensive or less profitable is not sufficient to
show that the alternative is financially infeasible. What is required is evidence that the
additional costs or lost profitability are sufficiently severe as to render it impractical to
proceed with the project.” The amount of the person’s wealth (in this case Steve Jobs) is not
taken into consideration: the law follows the “reasonable or prudent person” standard
The California Court of Appeal, Sixth District in 2012 ruled in Flanders Foundation v. City
of Carmel that an analysis of economic feasibility need not be in an EIR.
—James Papp, Chair, Cultural Heritage Committee, 23 October 2017
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