Advocacy – Legal Tools
Local Historic Preservation Laws
Preservation advocates should first determine if the local jurisdiction has a historic preservation ordinance and, if so, whether it authorizes the city or county to deny or merely delay demolition. To determine the applicability of CEQA, it will be important to know if the ordinance provides for discretionary review of projects involving historic resources. Local preservation commissions are typically granted some authority over demolition or major alteration of designated properties, and also new construction in designated historic areas. Although every local government in California has the authority to adopt a local ordinance applicable to historic properties, many jurisdictions currently lack historic preservation programs.
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.
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.
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
- 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)
Federal Projects – Section 106 Review
(National Historic Preservation Act)
Section 106 of the National Historic Preservation Act requires federal agencies to consider effects of proposed undertakings on properties listed or eligible for listing in the National Register of Historic Places. Federal agencies must provide the federal Advisory Council on Historic Preservation with an opportunity to comment on the project before implementation, often resulting in the adoption of mitigation measures intended to reduce or avoid impacts on historic resources. Section 106 encourages, but does not mandate, preservation. In addition to the Advisory Council, parties involved in the Section 106 consultation process include the federal lead agency responsible for initiating review, the State Office of Historic Preservation, federally recognized tribes or Tribal Historic Preservation Officers, and other individuals or organizations that can demonstrate an interest in the property.
For more information, see the Advisory Council’s guide to “Working with Section 106” at:http://www.achp.gov/work106.html