Advocacy - Legal Tools

CEQA

The California Environmental Quality Act or CEQA
is the primary legal tool used in California to protect historic resources threatened by a proposed development project. Projects that adversely impact an historic resource - including demolition, partial demolition, alteration, relocation - typically require preparation of an Environmental Impact Report (EIR) to analyze and evaluate a range of alternatives that would avoid or reduce such impacts.

CEQA requires that historic resources be recognized and considered by development projects which could destroy or impact them. Environmental assessments are done through documents called negative declarations, mitigated negative declarations, or environmental impact reports. In the first two, any negative impacts are addressed and mitigated. For significant environmental impacts that cannot be mitigated, an EIR is prepared.


When an historic resource is threatened, CEQA review is required only if there is a discretionary action needed for project approval. When a developer proposes to demolish an historic building, is the demolition permit an automatic "pay-your-fees, get your over-the-counter" approval? If yes, CEQA is not available as a tool to require consideration of alternatives. However, most cities and counties in California have enacted ordinances giving them discretionary permitting authority over a project contemplating demolition of a historic building.


To automatically qualify as a "historical resource" under CEQA, triggering the requirement for an EIR, the property must be listed or determined eligible for the National Register or California Register; listed in a local register; or identified as significant in a local survey. However, the fact that a resource is not listed in or determined eligible for any register, or included in a survey, does not preclude the lead agency from finding that the building is a "historical resource" and requiring preparation of an EIR. Although local governments have an obligation to determine whether a resource is listed, or if it may be eligible for listing, local preservation advocates should submit documentation, photos and expert testimony at every stage of the administrative review process to establish the historic significance of the resource.

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Environmental Impact Report -
    Evaluating Alternatives to Demolition

The EIR is considered "the heart" of CEQA, providing decision makers with an in-depth review of a project's significant environmental impacts and alternatives that would reduce those impacts. Based on objective analyses found in the EIR, agencies must mitigate or avoid the significant effects on the environment - including demolition of historic resources - whenever it is feasible to do so. The EIR process is the best opportunity for preservationists to promote alternatives to demolition, both before decision makers and in the public discourse.

Once the requirement for an EIR has been triggered, the key challenge facing preservationists is to come up with an alternative that achieves most of the developer's objectives and saves the historic resource. From a practical standpoint, preservation efforts are rarely successful if they stubbornly oppose demolition without offering a viable alternative that recognizes the developer's rights and interests. A purely anti-demolition stance is too easily dismissed as extreme and inflexible. It's much easier to garner broad support for an alternative that provides a "win-win" solution.

If the developer claims a historic resource cannot be incorporated into the project because of its location, prohibitive rehab costs, or failure to meet current building codes, it will be important to enlist a preservation-savvy architect, engineer and/or planner to present an alternative scheme and alternative costs. The California Historical Building Code allows local jurisdictions to work with owners of historic buildings to develop cost-saving, performance-based alternatives to meet the intent of a building code without meeting the more prescriptive, specific code requirements.

An EIR will not necessarily save a building, but by studying alternatives to demolition, the project may be changed to reduce its impacts on historic resources. It provides specific information about alternatives, project costs, preservation incentives, allowing the public to make arguments to promote preservation. If there are blatant violations in the CEQA process, you may need to hire a lawyer. Contact CPF for a list of attorneys who specialize in environmental and historic preservation law.

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Taking Action -
    Building the Administrative Record

In order to take full advantage of legal protections under CEQA, it is essential to establish the significance of the resource being threatened and the feasibility of alternatives to demolition. In order to successfully challenge a public agency's approval of a project that would demolish a historic structure, certain evidence must be presented to decision makers during the environmental review process. With few exceptions, the administrative record is established in its entirety before the lead agency takes final action on the project. Documents supporting a party's position, either for or against a project should be submitted to the lead agency sufficiently in advance of the final decision to allow time for careful consideration and deliberation. Such documents may include:

• Expert reports and studies regarding environmental aspects of the project (examples include traffic studies, noise analysis, archeological studies, water or air quality analysis, etc.)
• Photos and video
• Expert information relating to the feasibility of alternatives (examples might include letters from historic preservation architects or engineers)
• Examples of successful preservation projects around the state or nation (citing success stories of similar projects helps establish of preservation alternatives and helps elected officials visualize the end result)
• Newspaper or newsletter articles

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CEQA Links:

• CERES CEQA Website
  The California Environmental Resources Evaluation System, or CERES, is an information system developed by the California Resources Agency to facilitate access to a variety of electronic data describing California's rich and diverse environments.
• California Office of Historic Preservation, Technical Bulletin
• Everyday Heroes: Thirty-Five Years of the California Environmental Quality Act (Planning and Conservation League Foundation)

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Preventing Impacts to Historic Resources

Download the Preventing Impacts to Historic Resources document in PDF form.

Coalition Building

Although CEQA is a strong tool for protecting the state's historic resources, preservationists cannot rely exclusively on legal remedies if they hope to succeed. Preservation battles cannot be waged in a legal vacuum, ignoring public opinion, community needs, and political realities. Successful advocacy efforts invariably employ multiple strategi - legal, political, PR - to build a broad constituency of supporters.

Effective grassroots organizing is critical to any successful preservation advocacy effort. It is important to rally supporters to attend hearings and testify, write their elected officials, and submit letters to the editor. Preservationists can achieve greater recognition through coalition-building and co-sponsoring events. Smart growth advocates, arts organizations, land trusts, museums, neighborhood associations, and historical societies are just a few potential partners. Partner organizations can help disseminate information through websites, list-serves and newsletters. They can also write letters, testify at hearings, and participate in any public rallies. By strategically aligning with related interest groups, the preservation community can simultaneously broaden support and gain credibility.

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Working With Elected Officials

Traditionally regarded as a non-partisan issue, historic preservation can serve almost any political agenda, whether itÕs affordable housing, tourism, smart growth, or economic development. The key is to identify overlapping political priorities and determine how preservation can help meet mutual objectives. When an elected official plays a role in a successful preservation project, let them take the credit and recognize their contribution with public kudos and awards. If appropriate, nominate these projects for state or national recognition to inspire more good deeds. Cultivate relationships by inviting local politicians to speak at events or seeking their assistance to mediate disputes. It is also important to network with those who can provide indirect access to elected officials, such as business and community leaders.

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Media Outreach

Favorable press coverage is essential to swaying public opinion and persuading elected officials. Preservation advocates need to cultivate relationships with the local media by hosting press events, issuing press releases, submitting letters to the editor, and meeting with editorial boards. Talking points should be prepared to articulate why anyone should care about the building - as a rare example of the architect's work, a beloved neighborhood icon, etc. - and make a compelling argument for alternatives to demolition. An easy way to lend credibility to a fledgling preservation effort is to submit articles on the issue to allied organizations (such as CPF) for publication in their newsletters.

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