Letter to City Councilmembers regarding proposed revisions to Laguna Beach Historic Preservation Ordinance

Preserve Orange County (POC) is the only citizens advocacy group dedicated solely to promoting conservation of Orange County’s architectural and cultural heritage. Formed in 2016, POC is in a unique position to comment on the impact of proposed revisions to Laguna Beach’s historic preservation ordinance. This letter supports the work of the Laguna Beach Historic Preservation Ordinance Task Force and the City Attorney in identifying criteria for historic designation and incentives for preservation. However, it also reflects POC’s serious concerns about the long-term negative consequences of proposed ordinance revisions on the City’s visual character and reputation for environmental leadership, as well as addressing the challenging legal obstacles the City will face.

Laguna Beach has been a jewel on the southern California coastline since it was founded in 1887. According to the City’s Historic Resources Element, “[a] defining feature of Laguna Beach is its variety and number of older homes and buildings.” Through the General Plan and Municipal Code, the City committed itself to the goal of “preserv[ing] and enhanc[ing] buildings and structures of historic significance.” The City’s Historic Preservation Ordinance confirms that protection of places reflecting the City’s heritage promotes “the public health, safety, and general welfare.” LBMC § 25.45.002. Historic preservation, therefore, is a core exercise of the City’s constitutional authority to protect the welfare of its residents. (See footnote at bottom of letter) 

The California Environmental Quality Act (CEQA) defines historic resources as physical resources listed in or determined eligible for the California Register, including national, state and locally significant resources. Pub.Res.Code §21084.1. The Register specifically considers local resources identified through surveys or local designation as part of the state’s historical resources. Govt. Code § 5024.1(d)(3)-(5); Cal.Code Regs. Tit. 14, Ch. 11.5. Inclusion on the Register indicates “what properties are to be protected, to the extent prudent and feasible, from substantial adverse change.” Id. §(a). State law recognizes that historic preservation, including protection of identified local resources, benefits the people of the State. 

The California Register establishes objective standards for recognition of an historical resource. An historical resource must be significant at the local, state, or national level under one or more of the following four criteria: 

“(1) It is associated with events that have made a significant contribution to the broad patterns of local or regional history, or the cultural heritage of California or the United States;
(2) It is associated with the lives of persons important to local, California, or national history; (3) It embodies the distinctive characteristics of a type, period, region, or method of construction, or represents the work of a master or possesses high artistic values; or
(4) It has yielded, or has the potential to yield, information important to the prehistory or history of the local area, California, or the nation.” Cal.Code Regs., Tit. 14, § 4852(b). 

The Task Force recommends using these same criteria, but adds Laguna Beach-specific criteria for rare examples and iconic views, locations or spaces. All of the listing criteria for the California Register or recommended by the Task Force depend on an objective evaluation of the physical characteristics of the potential historical resource, consistent with professional practices nationally. 

As voted on September 29, 2018, the City Council’s proposal to make historical identification entirely voluntary adds a totally subjective private criterion to listing. There are at least two problems with this approach: it makes the survival of undisputed historical resources dependent on individual whims, and it deliberately attempts to block CEQA from carrying out its fundamental purpose of protecting the environment. It also treats objectively historical resources as less important than any other type of environmental resource evaluated under CEQA. It delegates the City’s governmental duties to private individuals who are given unrestricted power to prevent the City from protecting the public welfare. It would be unthinkable for the City to require owner consent to review biological habitat, wetlands or view corridors in the approval process; there is no principled difference between these aspects of the environment and historical resources. The only basis for distinguishing between zoning for social and economic purposes, and zoning for landmark preservation, appears to be wholly political. 

The City Council’s instruction to staff that it need not investigate historic significance at the same time it researches every other environmental topic, which the City Attorney explicitly advised against, also runs afoul of long-term administrative interpretation under CEQA. As acknowledged by the City Council at its September meeting, the CEQA Guidelines clearly contemplate equal treatment of historic and other environmental resources, including evaluation of significance according to legitimate thresholds. The CEQA Guidelines are prepared by the Governor’s Office of Planning and Research and adopted by the Secretary for Resources under the authority of the State Legislature. The Guidelines are recognized as the authoritative interpretation of CEQA, based primarily on judicial development of the law. Each public agency is responsible for complying with the Guidelines. Cal.Code Regs., Tit. 14 §15020. It sets a terrible precedent for the City to deliberately fail to follow the clear mandate of the Guidelines. 

POC is also concerned that the City Council’s apparent determination to eliminate historic regulation will leave the citizens of Laguna, including property owners, in a much worse position than under the current, admittedly deficient Historic Preservation Ordinance. First, the City Attorney has already advised the Council that any change in the ordinance that reduces historical resource protections is a “project” under CEQA. Not only will the planned adoption of “owner consent” provisions require amendment of the General Plan and Zoning Ordinance, it will necessitate a full environmental impact report (EIR). There is no guarantee these changes will satisfy the law. Under CEQA, significant adverse impacts must be mitigated to below a level of significance, if feasible. In other words, the City does not have authority to eliminate historic protections because the current City Council no longer believes they are important. Unless the City can find that preservation is infeasible, protections for historic resources must be kept in place. 

The City Council is preparing to embark on a multi-year effort to remove all mandatory historic preservation requirement from the General Plan and Zoning Ordinance, including circulation of an EIR, and likely post-adoption litigation by concerned community groups. The legal outlook is uncertain, especially since the City directly challenges the CEQA Guidelines, in which the State Legislature has acquiesced for many years. In the interim, landowners must comply with both CEQA and the Historic Preservation Ordinance, at the City’s expense. As implemented by City Staff, individual projects with significant impacts on historical resources will require their own EIRs unless the applicants comply with the Secretary of the Interior’s Standards for Rehabilitation. If the City attempts to dismiss historic requirements at the request of landowners, individual projects will likely face time-consuming litigation. In other words, given CEQA and the clear importance of numerous historic resources in CEQA, there is no clear path going forward for the City if it continues to pursue “voluntary” preservation approaches. 

POC is especially disappointed because the Historic Preservation Ordinance Task Force has done so much good work in developing a strong incentives program for historic preservation. The Task Force has carefully tailored its recommended historic register criteria to the special history, character and topography of Laguna Beach. Its recommendation for a dedicated and knowledgeable historic preservation planner would avoid many of the current conflicts around historic preservation in the City. If the City were to couple the Task Force recommendations in these areas with streamlined designation and modification review, Laguna Beach could be a leader in Orange County preservation while providing a much better process for property owners. 

POC is available to work with the City to address the problems with the proposed Ordinance discussed above. We look forward to assisting the City in protecting the many historic assets that contribute to its unique community character for the benefit of all Orange County residents. 

(1. “Preservation of historic buildings and sites benefits the citizens in obvious ways by conserving aesthetically pleasing features of the urban landscape and by bolstering aspects of the local economy, such as tourism, that are dependent on the city’s distinctive character.” East Bay Asian Local Development Corp. v. State of California (2000) 24 Cal.4th 697, 753 (Werdergar, dissenting). 

Krista Nicholds, President, Board of Directors

Alan Hess, Chair, Board of Directors

Preserve Orange County