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The California Preservation Foundation is located in the national register listed Agriculture Building at
101 The Embarcadero, Suite 120
San Francisco, CA 94105-1215

CPF offers multiple levels of membership, geared towards everyone from hobbyists to professionals. You can view all of our membership options, and join today, at californiapreservation.org/join.

The mission of the California Preservation Foundation is to ensure that the rich diversity of California’s historic resources are identified, protected and celebrated for their history and for their valuable role in California’s economy, environment and quality of life.

We keep an active and growing list of links to preservation organizations, blogs, and funding resources on our website here.

CPF does not catalog photos, but many newspapers, local historical societies or history museums do. Check with your local historical or preservation organization as well as the California Historical Society.

Federal projects, or projects with federal funding, licensing or permit approval, follow processes outlined in the National Environmental Policy Act (NEPA). NEPA includes cultural resources preservation within its general policy for environmental protection. It requires the preservation of important historic, cultural, and natural aspects of our national heritage

An Environmental Impact Report (EIR) describes the project and justifies its purpose and need. It then determines whether significant impacts will occur to protected resources affected by the project, and outlines efforts to avoid, reduce or mitigate impacts to below a level of significance. Alternatives are required and feasible alternatives must be adopted.

Transportation projects are also governed by Section 4(f) of the Transportation Act which forbids federal funding to be used on any project that adversely affects parklands, wetlands, cultural or historical resources and archaeological sites.

An EIS (Environmental Impact Statement) describes the historic resource, evaluates its importance, and provides various alternatives to demolition. If feasible alternatives exist, they must be adopted. Prior to demolition, a Statement of Overriding Considerations adopted by decision makers explains why benefits from the proposed project outweigh the intrinsic values of the resource. Mitigation to reduce the loss below a level of significance must be provided to compensate for loss.

State CEQA Guidelines Section 15064.5(b)(2) states that:

The significance of an historical resource is materially impaired when a project:

(A) Demolishes or materially alters in an adverse manner those physical characteristics of an historical resource that convey its historical significance and that justify its inclusion in, or eligibility for, inclusion in the California Register of Historical Resources; or

(B) Demolishes or materially alters in an adverse manner those physical characteristics that account for its inclusion in a local register of historical resources pursuant to section 5020.1(k) of the Public Resources Code or its identification in an historical resources survey meeting the requirements of section 5024.1(g) of the Public Resources Code, unless the public agency reviewing the effects of the project establishes by a preponderance of evidence that the resource is not historically or culturally significant; or

(C) Demolishes or materially alters in an adverse manner those physical characteristics of a historical resource that convey its historical significance and that justify its eligibility for inclusion in the California Register of Historical Resources as determined by a lead agency for purposes of CEQA.

The appropriate mitigation depends upon the specific historical resource being affected. Mitigation must be feasible and fully enforceable. It may include avoiding, minimizing, reducing, or rectifying the impact. The question of whether mitigation is feasible takes into account economic, environmental, legal, social, and technological limitations. (State CEQA Guidelines Section 15364).

State CEQA Guidelines Section 15064.5 states: “Generally, a project that follows the Secretary of the Interior’s Standards for the Treatment of Historic Properties with Guidelines for Preserving, Rehabilitating, Restoring, and Reconstructing Historic Buildings or the Secretary of the Interior’s Standards for Rehabilitation and Guidelines for Rehabilitating Historic Buildings (1995), Weeks and Grimmer, shall be considered as mitigated to a level of less than a significant impact on the historical resource.”

The State Office of Historic Preservation answers this question as follows:

Substantial adverse change includes demolition, destruction, relocation, or alteration such that the significance of an historical resource would be impaired (PRC Section 5020.1(q)).

While demolition and destruction are fairly obvious significant impacts, it is more difficult to assess when change, alteration, or relocation crosses the threshold of substantial adverse change. The State CEQA Guidelines provide that a project that demolishes or alters those physical characteristics of an historical resource that convey its historical significance (i.e., its character-defining features) can be considered to materially impair the resource’s significance. [State CEQA Guidelines Section 15064.5]

These are sometimes judgment calls. If you disagree with the conclusion reached by the agency, contact a professional or other expert on historical resources to review and comment on that conclusion. If there is litigation over the project, non-expert opinion or statements will not be considered substantial evidence to support an argument that the impact is significant.

The best way to comment on a CEQA document is in writing. This can be done during the public review period for the proposed Negative Declaration or draft EIR. Written comments can also be submitted at the hearing held on the project.

Local projects typically require a public hearing. The findings of the CEQA document will be one of the factors taken into consideration by the agency decision makers when deciding whether or not to approve the proposed project. Verbal and written comments can be submitted at the hearing. Written comments are best because they are more accurately entered into the record.

If there is litigation over the project, the scope of the litigation will be limited to information that is in the record. Further, unless an issue is raised during the CEQA process or at the public hearing it cannot be raised in litigation.

An EIR is a comprehensive analysis of the potential impacts of a project on multiple environmental resources. In most cases, the most economical method of review is to begin with the Executive Summary. It will include a description of the project and an overview of its potential impacts. After familiarizing yourself with the project, go to the chapter that reviews cultural resources. That will include the EIR’s evaluation of potential impacts on historical resources and identify mitigation measures to reduce or avoid significant adverse effects on historical resources. The analysis should include resources that are listed, either on the California, Federal, or a local register, and resources that are eligible for listing. Consult the bibliography to be sure that all known sources and repositories have been researched for inclusion in the findings, and that the preparers meet the Secretary of the Interior’s Standards for their discipline.

An EIR is prepared when there is a “fair argument” that a project may have significant environmental impacts despite imposition of mitigation measures, even if a different conclusion is well-supported. The EIR describes the project, objectives, environmental setting, analyzes potential impacts, and examines feasible alternatives and mitigation measures.

An agency prepares an initial study to describe a project’s potential impacts and determine what type of environmental review document should be adopted. A negative declaration is adopted when there is no substantial evidence (facts, reasonable assumptions and expert opinion based on facts) supporting a “fair argument” that a project may have a significant environmental impact. An MND is adopted when a project may have significant environmental impacts, but certain mitigation measures clearly reduce impacts below a level of significance.

The Resources Agency has developed a list of activities that are presumed to not have a significant impact on the environment. These categorical exemptions to CEQA are listed in the CEQA Guidelines. (14 CCR 15300.) If the lead agency determines that a categorical exemption applies, they file a notice of exemption.

CEQA applies to discretionary projects. A discretionary project is one that requires an agency to exercise judgment in approving or disapproving it. CEQA applies to the whole of the action when any part of a project is discretionary.

CEQA review is a process of investigation that is intended to disclose to decision makers and the public whether the project may have a substantial adverse effect on the environment. It neither denies nor approves a project; that’s the role of the public agency decision makers.

CEQA equates a substantial adverse effect on a historical resource with a significant effect on the environment. However, CEQA is a disclosure law, not a regulation. When an Environmental Impact Report (EIR) has been certified for a project, the decision makers may approve a project despite it having a significant, unavoidable impact on historical resources. Conversely, a project that may demolish or materially alter a historical resource cannot be approved on the basis of Negative Declaration or Mitigated Negative Declaration, an EIR must be prepared.

The California Environmental Quality Act requires agencies to consider the environmental impacts of a proposed project. It is intended to assist governmental decision makers in making informed decisions regarding those impacts, and to consider mitigation measures and alternatives.

We keep an active and growing list of links to preservation organizations, blogs, and funding resources on our website here.

For a list of many sources of preservation and restoration funding, select the “Find Funding” tab on our Preservation Links page.

CPF does not have grant money available for restoration projects. However, you can look into historic preservation tax credits and property tax incentives and limited grant funds available from the state or federal government or other non-profit organizations.

We keep an active and growing list of links to preservation organizations, blogs, and funding resources on our website here.

CEQA requires that historic properties be preserved whenever feasible. In most jurisdictions, demolition permits are discretionary actions that trigger CEQA review. Preparation of an Environmental Document should include alternatives to demolition. Engage in the environmental process, comment within statutory windows and build “the administrative record” to support preservation. If demolition continues to be the preferred alternative, hire an attorney to challenge the Environmental Document after document certification.

Among our members are the most qualified Preservation professionals in the State of California. You can search our directory at californiapreservation.org/directory.

Yes, anyone can prepare an application for historic designation at the federal, state or local level. Instructions for National Register applications are found on the National Parks Service website. Assistance with process, terminology, designation criteria, historic contexts and significance, property types, integrity, setting boundaries and counting contributors can be found in NPS Bulletin 15: How to Apply the National Register Criteria for Evaluation and Bulletin 16: How to Complete the National Register Registration Form.

Instruction for California Register applications are found on the Office of Historic Preservation’s website.

Consult your local jurisdiction for local nomination procedures.

This landmark report needs to be updated. Any new information or new contexts that have been developed since the initial report should be included. An updated description of its architecture, site boundaries and setting, augmented by new photographs, should be provided. Its current condition and any physical changes that have affected its integrity since the initial report should be evaluated. The new report should clearly note the designation criteria the property meets and its level of significance. A clear justification of its boundaries and period of significance should be provided, along with a list of character defining features that contribute to the property’s significance.

Properties included in a historical survey become part of an inventory of building stock that is used for planning purposes. Reconnaissance Surveys are information gathering exercises and do not regulate, designate or otherwise affect ownership status or property use. Inclusion in a Reconnaissance Survey may trigger a more intensive survey, as described below. Intensive Surveys evaluate specific properties for historical significance and may or may not result in a formal designation, a determination of eligibility for designation, or a determination of historical significance for purposes of CEQA.

A Context Statement is a study that explores a historical theme within a geographic place during a specific period of time. In focusing on property types instead of individual buildings, it ties the built environment to an area’s history. Examples of themes include: economic, political or social history; architectural styles and building types; or people and cultural groups. Geographical areas can be as small as a neighborhood or as large as the nation, while chronology can be any range of dates from pre-history to the present.

Historical significance is determined using codified designation criteria. Federal designation criteria for listing in the National Register were established as part of the National Historic Preservation Act and implementing regulations. California Register criteria were adopted and codified as Sec. 5024 of the California Public Resources Code. Local designation criteria are established through local ordinance. All levels tier off federal standards and include criteria associated with: significant historic events or patterns of events; important people, social and cultural groups; worthy architecture; innovative engineering, technology, use of materials and quality workmanship.

An Intensive Survey starts with the information acquired in a Reconnaissance Survey and adds a detailed architectural description, additional photographs and mapping, an integrity analysis, documentation of permitted and informal changes over time, a title search and site specific historical research on persons and events associated with the property. The documentation is evaluated against specific criteria to determine the property’s historical significance, often indicated by an OHP status code. This information can be part of a long-range planning exercise, result in compliance with environmental regulations, or further an interest in voluntary designation.

A Reconnaissance Survey provides a snapshot of potential historic resources in a particular location at a specific point in time. Often used for planning purposes, it can provide data on broad categories such as property types, architectural styles, basic integrity and overall condition, sorted by historical period, context, or geographic location. It is primarily a visual survey that does not evaluate resources for historical significance. But it can sort non-historic properties from potentially historic resources. Reconnaissance Survey results often become the basis for more intensive surveys. These provide detailed examination of ownership, physical changes, and property adaptations associated with social, cultural or economic patterns over time.

Historic Surveys inventory a community’s cultural resources (eg. buildings, structures, sites, districts and objects). They are both a process and a product to identify and document historic resources and to evaluate their significance. They are conducted within a geographic boundary, usually including properties that are at least 45 years of age and that have integrity. Properties are documented through mapping, photography, physical descriptions and condition assessments. They are evaluated using established local, state and/or federal designation criteria associated with historic contexts important in the community’s history.

The Certified Local Government Program of the State of California resulted from 1988 amendments to the National Historic Preservation Act that encouraged local governments to identify, evaluate, register, and preserve historic properties. It also integrates preservation interests and concerns into local planning and decision-making processes. To become a Certified Local Government (CLG), a local government needs to complete an application, meet CLG criteria, and be certified by the National Parks Service. A certification agreement is then formalized between the National Parks Service, the State Office of Historic Preservation and the local government. This enables the federal and state programs to delegate various preservation responsibilities to the local level. For more information, see: http://ohp.parks.ca.gov/pages/1072/files/CLG%20Manual%202010r2.pdf

Yes. The landscape within a historic property’s boundaries is considered its “setting” and is an important aspect of the property’s integrity. Landscapes are also important property types worthy of designation. They include designed landscapes, cultural landscapes, industrial landscapes, archaeological sites and traditional cultural properties.

Yes, historic interior spaces can be considered historic, depending upon the criteria of the registration program and the reason the space is significant. The National and California Registers protect interior public spaces if they are historically significant (e.g. are a location where a significant event occurred) or have a design (for example, a theater) or character defining features (a firehouse pole) that contribute to understanding of the resource. Many local registration programs only protect exteriors, unless the interior is specifically addressed in the designation application.

Historic designation is voluntary until, and unless, a discretionary project is proposed that may have a significant impact on the historic values of the resource. Under those circumstances, there is an obligation under federal, state and local laws to protect and preserve the resource to the greatest extent feasible, despite owner concerns.

Prepare a National Register Nomination using official forms available on the National Parks Service website or the California Office of Historic Preservation website.

Assistance with process, terminology, designation criteria, historic contexts and significance, property types, integrity, setting boundaries and counting contributors can be found in NPS Bulletin 15: How to Apply the National Register Criteria for Evaluation and Bulletin 16: How to Complete the National Register Registration Form.

Send the completed package to the California State Office of Historic Preservation for review. When completed, the nomination package will be scheduled for a hearing at one of the quarterly meetings of the State Historic Resources Commission. If accepted, the nomination will be forwarded to the Keeper of the National Register in Washington, DC for listing.

All registration programs recognize and protect historic properties. Each designation, however, has its own criteria for significance, integrity standards, processes, owner consent requirements, levels of protection and opportunities for funding

These terms are often confused, but each holds a different level of significance.

The National Register of Historic Places is the definitive list of all federally registered historic properties. It includes buildings, structures, sites, objects and districts. Individual structures are listed on the National Register, but entire neighborhoods or areas can also be designated as a National Historic District.

A National Historic District is a district important in American history at the national level of significance and is listed on the National Register. It can also be a historic district owned by the federal government, such as the Gettysburg Battlefield Historic District. To qualify, the area must retain architectural integrity and reflect an aspect of the area’s history. A historical overview of the entire district is needed. The purpose of the overview is to provide a basic background history of the area and to justify the significance of the district. Historic resources survey documentation is required for all proposed districts, which involves photographing and mapping all buildings in the district, recording their architectural characteristics, and assessing whether or not they contribute to the historic character of the district.

The highest level of designation is a National Historic Landmark. Landmarks are properties deemed significant to all Americans because of their exceptional values or qualities, which help illustrate or interpret the heritage of the United States. Designated by the Secretary of the Interior, National Historic Landmarks are a select group of National Register listed properties that rise to national importance due to their exceptional ability to illustrate or interpret American heritage.  If a property is named a National Historic Landmark, it is also listed on the National Register of Historic Places and able to obtain federal historic preservation funding, when available. Only three percent of properties on the National Register are also Landmarks and they are usually owned by private individuals or groups; others are owned by local, state, tribal or federal government agencies. Today, just over 2,500 historic places bear this national distinction. Twelve have been designated in California since 1999.

For more information, visit the National Park Service Website.

The California Register, adopted in 1992 as Section 5024.1 of the California Public Resources Code, follows the intent and purpose of the National Register for cultural resources important to California history. Administered by the State Office of Historic Preservation, the program enables state and local agencies, private groups and citizens to identify, evaluate, register and protect California’s historical resources. It also identifies historical resources for state and local planning purposes, determines eligibility for state historic preservation grant funding and affords certain protections under the California Environmental Quality Act.

The National Register is the official list of the Nation’s historic places worthy of preservation. Located in the National Parks Service in Washington DC, and administered by the Keeper, it is part of a national program to coordinate and support public and private efforts to identify, evaluate, and protect America’s historic and archeological resources.

The National Register includes buildings, structures, sites, districts and objects (either stationary or moveable) that are important in national, state or local history. They also need to have enough integrity to convey their significance and be at least 50 years old. Some types of properties, like commemorative monuments or reconstructions, are generally not included. It is not a complete listing, as the passage of time allows more recent properties to be added, or formerly overlooked properties to be reconsidered with new information.

Owners of historic buildings may qualify for property tax relief if they pledge to rehabilitate and maintain the historical and architectural character of their properties for at least a ten-year period. The Mills Act program is especially beneficial for recent buyers of historic properties and for current owners of historic buildings who have made major improvements to their properties.

If your local government participates in the Mills Act Program, contact them to find out what the local criteria are, and what the process is for applying.

Mills Act contracts are automatically renewed each year and are transferred to new owners when the property is sold.

A formal agreement, generally known as a Mills Act or Historical Property Contract, is executed between the local government and the property owner for a minimum ten-year term. Contracts are automatically renewed each year and are transferred to new owners when the property is sold. Property owners agree to restore, maintain, and protect the property in accordance with specific historic preservation standards and conditions identified in the contract. Periodic inspections by city or county officials ensure proper maintenance of the property. Local authorities may impose penalties for breach of contract or failure to protect the historic property. The contract is binding to all owners during the contract period.

Mills Act contracts are for 10 years initially with automatic yearly extensions and stay with the property when transferred. Subsequent owners are bound by the contract and have the same rights and obligations as the original owner who entered into the contract. Because the local government and the property owner negotiate other specific terms of the contract, you need to contact your local government to determine the rights and obligations a Mills Act contract creates.

First, find out if your local government participates in the program by using the Mills Act Contact List. If your local government participates in the Mills Act Program, contact them to find out what the local criteria are, and what the process is for applying.

Each local government establishes their own criteria and determines how many contracts they will allow in their jurisdiction. For answers to specific questions such as local eligibility criteria, application procedures, and contract terms, contact the city or county official for your jurisdiction. Per the State of California Office of Historic Preservation: Mills Act participants may realize substantial property tax savings of between 40% and 60% each year for newly improved or purchased older properties because valuations of Mills Act properties are determined by the Income Approach to Value rather than by the standard Market Approach to Value. The income approach, divided by a capitalization rate, determines the assessed value of the property. In general, the income of an owner-occupied property is based on comparable rents for similar properties in the area, while the income amount on a commercial property is based on actual rent received. Because rental values vary from area to area, actual property savings vary from county to county. In addition, as County Assessors are required to assess all properties annually, Mills Act properties may realize slight increases in property taxes each year

General information related to the statewide program can be found at: http://ohp.parks.ca.gov/?page_id=21412.

Each local government establishes their own criteria and determines how many contracts they will allow in their jurisdiction. For answers to specific questions such as local eligibility criteria, application procedures, and contract terms, contact the city or county official for your jurisdiction. To determine if your city or county participate, use the Mills Act Contact List published by the California Office of Historic Preservation.

Enacted in 1972, the Mills Act legislation grants participating local governments (cities and counties) the authority to enter into contracts with owners of qualified historic properties who actively participate in the restoration and maintenance of their historic properties while receiving property tax relief. Counties or Cities implementing the program must be Certified Local Governments. The program is a property tax reduction given in exchange for the rehabilitation of a property, with the rehabilitation outlined in a Work Plan.

Preservation tax incentives are financial tools that can be used to obtain property or income tax relief related to the rehabilitation and/or maintenance of a historic property. Some states have State Rehabilitation Tax Credits, California does not. There is the Federal Rehabilitation Tax Credit Program (https://www.nps.gov/tps/tax-incentives/taxdocs/about-tax-incentives-2012.pdf) that is administrated by the State Office of Historic Preservation in coordination with the National Park Service, and the locally administered Mills Act programs.

The parties typically continue consulting until a Memorandum of Agreement is reached that would reduce impacts to the resource(s). However, as long as the agency follows the required steps and consults with interested parties, they can still approve a project with impacts to a historic resource.

The approving agency, the State Historic Preservation Officer, Advisory Council on Historic Preservation and other interested parties. Members of the public with an interest in the project can request consulting party status.

Section 106 applies to projects where there is federal involvement. If such project could adversely impact historic resources, the agency is required to consult with SHPO and other interested parties in an attempt to reduce or eliminate the impacts.

Section 106 requires that “prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license” a federal agency must “take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register.”

The National Historic Preservation Act of 1966 (NHPA) was enacted due to public concern that so many of the nation’s historic resources were not receiving adequate attention as the government sponsored much-needed public works projects. The NHPA, strengthened and expanded by several subsequent amendments, is today the basis of America’s historic preservation policy. The Act outlined federal policies for protecting historic properties, established the National Register of Historic Places, state historic preservation programs, and tribal historic preservation programs, as well as the Advisory Council on Historic Preservation, an independent federal agency that assists the President, Congress and Federal Agencies on national preservation policies.

By Deborah Rosenthal, FAICP, Esq., CPF Trustee and Partner, Fitzgerald, Yap, Kreditor, LLP

Property owners often complain that landmark designation is an unconstitutional “taking” of their property. Formal designation recognizes the historic character of the landmarked property as important to preserving the aesthetic features and physical environment of the community, but it does not impose any obligations on the owners beyond normal maintenance. Therefore, designation alone is never a “taking” of private property because the owner retains both title to and use of the landmarked property. Far from eliminating ownership of private property, designation is solely intended to establish an administrative process for reviewing privately-proposed changes to historic properties for the benefit of the entire community in which the landmark is located.

Under the Fifth Amendment to the United States Constitution and Section I, Article 19 of the California Constitution, private property cannot be “taken” for a public purpose without just compensation. Cases decided by state and federal courts have declared that denial of all beneficial use of land constitutes is the definition of a regulatory taking. In 1978, the United States Supreme Court held that local landmark designation of Penn Central Terminal was not a taking because the property owner retained the same or greater beneficial economic use of the site as it had before designation. The Penn Central Transportation Company v. City of New York case has been cited hundreds of times for the proposition that zoning and landmarking are not “takings” so long as the owner retains reasonable use of the property. The burden is on the owner to show that the regulation denies all reasonable use of property.

The United States Supreme Court has also consistently held that administrative decisions causing even substantial reductions in property value are not a “taking.” For more than 100 years, the Court has ruled that mere diminution in value is not a “taking,” provided the property retains some economic use, even if the value of the property is reduced by up to 97 percent. So long as the owner retains title and some opportunity to use the property for a lawful purpose, the “highest and best use” of property may be prohibited by regulation without violating the United States and California Constitutions.

Landmark designation rarely affects the uses permitted on private property because the purpose of the regulation is to preserve character-defining features of the environment. Special permits are usually required to protect historic elements from adverse change, such as demolition or incompatible development. New development is often directed to less sensitive areas of the site, or required to reflect existing architectural design and land use patterns. Normal maintenance and repair does not require special permits, and no affirmative obligations are imposed on the owner. Historic preservation regulations are expressly authorized by State law.

Even under the United States and California Constitutions, landmark designation must be supported by substantial evidence that the property is historic and must allow reasonable use of the property. Many jurisdictions establish a procedure for property owners to demonstrate that designation would not only impact market value, but would deny all reasonable beneficial or economic use of the property. Typically, property owners are unable to show a denial of all use; in other cases, the public agency has authority to allow a reasonable amount of well-located new development to avoid a takings claim. California courts have never found landmark designation to be an unconstitutional “taking.”

Damage to historic properties from natural disasters like fires, floods, earthquakes and mudslides can be another avenue to demolition. During a State of Emergency, officials can “red tag” buildings that present an immediate threat to public safety and order demolition without additional review under.

Demolition by Neglect can occur through lack of maintenance that enables a historic property to deteriorate until it becomes a safety hazard. Many jurisdictions have ordinances that require all properties to be adequately maintained that can prevent this type of demolition. Contact your jurisdiction’s Code Compliance Inspectors for assistance. “Mothballing,” another strategy to prevent Demolition by Neglect, physically stabilizes and secures properties until they can be rehabilitated. All designated historic properties follow the State Historic Building Code for repair and rehabilitation, which is also Chapter 9 of the Universal Building Code.

Both CEQA and NEPA require historic properties to be protected to the greatest extent feasible. Assessing impacts is an iterative process that first examines the significance of the resource, its boundaries and character defining features, and then evaluates a project’s effects upon those characteristics. Impacts can be direct, indirect or cumulative. Direct impacts physically change character defining features and noticeably diminish the resource’s significance. Indirect impacts like noise, light and glare, do not physically alter the resource, but diminish its character. Cumulative impacts may not be individually significant, but collectively add up to great loss. After determining the type and extent of impact, determine how to avoid, minimize or mitigate the loss. Adequate mitigation lowers the impact to a “less than significant” level.

Yes. If a local jurisdiction grants demolition permits “by right” through a ministerial process, a historic property could be demolished. If demolition permits are discretionary, a historic property can still be demolished, but not without a formal process to determine alternatives to demolition, a Statement of Overriding Conditions and adequate compensatory mitigation. In California, the California Environmental Quality Act (CEQA) outlines the process to determine the fate of threatened historic properties.

Restoration and Rehabilitation are two treatments recognized by the Secretary of the Interior to conserve historic properties. Restoration re-creates missing features, based upon physical or documentary evidence, to return a property to its appearance at a specific point in time. Rehabilitation involves upgrading existing features and/or adding new features to accommodate a change in use. The intent is to provide economic or social benefit to keep a historic property in service.

Historic properties are formally designated resources with local, state or national significance that meets specific criteria. These normally include association with important historical events or patterns of events, or association with individual people, or groups of people. They may be significant for: artistic merit; as products of noted architects, landscape architects, craftspeople, designers or engineers; embody advances in technology or engineering; or, exemplify extraordinary workmanship or use of materials. They must display enough physical integrity to convey their significance. They have specific physical boundaries that are clearly mapped, distinguish contributing and non-contributing features, and are associated with historical contexts.

Historic preservation seeks to preserve and protect buildings, structures, objects, districts, natural and man-made landscapes, historic and archaeological sites and associated artifacts of historical significance for the use and enjoyment of future generations.

By Deborah Rosenthal, FAICP, Esq., CPF Trustee and Partner, Fitzgerald, Yap, Kreditor, LLP

Property owners often complain that landmark designation is an unconstitutional “taking” of their property. Formal designation recognizes the historic character of the landmarked property as important to preserving the aesthetic features and physical environment of the community, but it does not impose any obligations on the owners beyond normal maintenance. Therefore, designation alone is never a “taking” of private property because the owner retains both title to and use of the landmarked property. Far from eliminating ownership of private property, designation is solely intended to establish an administrative process for reviewing privately-proposed changes to historic properties for the benefit of the entire community in which the landmark is located.

Under the Fifth Amendment to the United States Constitution and Section I, Article 19 of the California Constitution, private property cannot be “taken” for a public purpose without just compensation. Cases decided by state and federal courts have declared that denial of all beneficial use of land constitutes is the definition of a regulatory taking. In 1978, the United States Supreme Court held that local landmark designation of Penn Central Terminal was not a taking because the property owner retained the same or greater beneficial economic use of the site as it had before designation. The Penn Central Transportation Company v. City of New York case has been cited hundreds of times for the proposition that zoning and landmarking are not “takings” so long as the owner retains reasonable use of the property. The burden is on the owner to show that the regulation denies all reasonable use of property.

The United States Supreme Court has also consistently held that administrative decisions causing even substantial reductions in property value are not a “taking.” For more than 100 years, the Court has ruled that mere diminution in value is not a “taking,” provided the property retains some economic use, even if the value of the property is reduced by up to 97 percent. So long as the owner retains title and some opportunity to use the property for a lawful purpose, the “highest and best use” of property may be prohibited by regulation without violating the United States and California Constitutions.

Landmark designation rarely affects the uses permitted on private property because the purpose of the regulation is to preserve character-defining features of the environment. Special permits are usually required to protect historic elements from adverse change, such as demolition or incompatible development. New development is often directed to less sensitive areas of the site, or required to reflect existing architectural design and land use patterns. Normal maintenance and repair does not require special permits, and no affirmative obligations are imposed on the owner. Historic preservation regulations are expressly authorized by State law.

Even under the United States and California Constitutions, landmark designation must be supported by substantial evidence that the property is historic and must allow reasonable use of the property. Many jurisdictions establish a procedure for property owners to demonstrate that designation would not only impact market value, but would deny all reasonable beneficial or economic use of the property. Typically, property owners are unable to show a denial of all use; in other cases, the public agency has authority to allow a reasonable amount of well-located new development to avoid a takings claim. California courts have never found landmark designation to be an unconstitutional “taking.”