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City releases agenda bill on Preservation Ordinance issues, asks council to determine if CEQA guidelines are binding

By BARBARA DIAMOND

The City has released the agenda bill that poses questions staff believes Council needs to answer if the logjam that has hobbled completion of the proposed Historic Preservation Ordinance is to be resolved. 

City staff and a group of property owners represented by attorney Larry Nokes are at loggerheads over the interpretation of a California Environmental Quality Act guideline that has stymied agreement on legal interpretations of state law. More than 20 meetings were held on the ordinance with no reconciliation of the differences. Some of the meetings were downright ugly.

Resolution of the differences was most recently put into the hands of a task force, which reached an impasse over the question of the City’s legal obligation for historic preservation under CEQA, and is now seeking Council direction. 

The City Attorney’s office has opined that the city would be required to follow CEQA guidelines if there is substantial evidence that a proposed project involves a structure that has the potential of being an historic resource. CEQA guidelines have been determined by the courts to be regulations. 

Nokes, who was not appointed to the task force, believes the city is under no obligation to consider a structure’s historical status during a discretionary action, such as design review.

CEQA is concerned with the potential impacts of a project on the physical environment. In 1992, CEQA was amended to include manmade structures as a part of the environment protected by the act. 

The intent behind the word “preclude” is at the heart of the debate

The amendment adds to a section of the state Public Resources Code a paragraph that reads: “The fact that a resource is not listed in, or determined to be eligible for listing in, the California Register of Historic Resources, not included in a local register of historic resources or not deemed significant pursuant to a compliant historic inventory shall not preclude a lead agency from determining whether the resource may be an historical resource for the purposes of this section.”

Nokes maintains that “precluding” is not the same thing as “compelling” a lead agency to determining whether the resource may be an historical resource. It should be up to the property owner, Nokes contends.

That is the crux of the current disagreement, according to the staff report. 

Staff has requested the Council provide direction to the Historic Preservation Task force regarding what the city’s obligation should be under CEQA, and in the absence of any applicable local regulations, when considering discretionary projects involving potential historic structures that are not on state or city historical registers, and not on a local historical inventory that meets all applicable state requirements.

Two options have been offered by the staff:

--Determine, as suggested by Nokes, that the City is not obligated and may choose not to consider a structure’s historic status during the reviews of a discretionary action;

--Determine, as suggested by the City Attorney’s Office, that the City would be required to follow CEQA guidelines if there is substantial evidence that a structure potentially would be historic. 

The staff report is on the City’s website. However, the staff report included a caveat that the agenda bill could be revised prior to a public meeting. Comments should be directed to City Clerk Lisette Chel Walker.