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A Dangerous Precedent that Threatens All Historic Resurces

We were notified of an alarming action that undermines the authority of the State Historic Preservation Officer (SHPO) to consult on the Capitol Annex Project. 

On June 26, 2022, amendments were slipped into SB 189, one of the many budget trailer bills, including one that amended the Capitol Annex Project Act. Language specified that the Joint Rules Committee, not DGS, was in charge of decisions over the project. The amendments also exempted the project from SHPO consultation.  The bill did that by adding SHPO consultation (PRC 5024 and 5024.5) to the Annex Act’s original list of statutory exemptions (Government Code Section 9112). The budget committee’s analysis of SB 189 did not mention or analyze the SHPO exemption. SB 189 amendments became law on June 30, 2022. 

If this approach is allowed to stand, what is to stop any City or County to exempt its own projects from SHPO review? Why not allow any developer to find a legislator, like Assemblymember Ken Cooley, to write a bill exempting any private donor’s project from SHPO review?

This single act sets a dangerous precedent to nullify laws meant to protect historic resources.

Take Action by Submitting a Letter
Summary Of Issues Leading To SB 189 Trailer Bill Language and Judge's Decision
  1. Save Our Capitol (SOC) filed a lawsuit on November 12, 2021, which argued that Joint Rules Committee (JRC) delegated to Department of General Services (DGS) authority to execute and implement the Capitol Annex Project (Project). SOC argued that Public Resources Code (PRC) Section 5024 and 5024.5 required DGS, as a state agency making decisions on the project, to take the Project to the State Historic Preservation Officer (SHPO) for review and comment on ways to minimize impacts to historic resources.  SOC also argued that this code section requires the Legislature to consult with the SHPO because it is an “authority of the State of California.”
  2. The Attorney General (AG, representing DGS and the Legislature) filed a demur, arguing that the Project did not require a SHPO consultation because the Legislature’s Joint Rules Committee is not a state agency and it was making the decisions, not DGS.
  3. Judge Krueger issued a tentative ruling on May 24, 2022, that, in part, agreed with SOC arguments.  Importantly, the Judge agreed that issues in the SOC complaint were not appropriately decided on a demur.  His tentative ruling said that he could not decide which side was correct without additional discovery. The judge conducted a hearing on May 25, 2022, and took comments under consideration; he did not issue a final ruling that day.
  4. On June 26, 2022, amendments were slipped into SB 189, one of the many budget trailer bills which amended the Capitol Annex Project Act. Language specified that the Joint Rules Committee, not DGS, was in charge of decisions over the project. The amendments also exempted the project from SHPO consultation.  The bill did that by adding SHPO consultation (PRC 5024 and 5024.5) to the Annex Act’s original list of statutory exemptions (Government Code Section 9112). The budget committee’s analysis of SB 189 did not mention or analyze the SHPO exemption. SB 189 amendments became law on June 30, 2022.
  5. On July 12, 2022, Judge Krueger issued his final ruling stating “…the Legislature has gutted the plaintiff’s suit like a fish.”  The Judge concluded “… there is no question that the Court must apply the version of the Government Code section 9112, as amended by SB 189….” He then sided with the Attorney General’s demur.  The result was to render the SOC suit unwinnable.
What is the Threat?
  1. The State Capitol Historic District, comprised of the historic 1870 Capitol, East Annex, and the State Historic Park, is a premier state historic resource. The Legislature’s project would demolish the nationally registered Capitol Annex, destroy or remove as many as 180 Capitol Park trees and disrupt the landmark protected front of the 1870 historic Capitol looking west toward Tower Bridge.  In the face of a lawsuit, the Legislature exempted the project from review by the State historic Preservation Officer.

    If this project can be exempted from State Historic Preservation Officer’s (SHPO) consultation, then any historic building in California could be likewise exempted through future legislation.  This action by a powerful entity making a last minute change creates a dangerous precedent. Such action could be taken on any and all historic preservation laws, such as reviews by the State Preservation Office through consultations, CEQA, historic tax credits, etc.

  1. The Courts are often the last resort for the preservation community to save historic resources. Influencing a Judge’s tentative decision before it becomes final undermines the judicial process. It undermines all future lawsuits, especially against powerful governmental and private sector entities. It threatens the separation of powers between the legislative and judicial branches and moves us toward a political judiciary.
  2. The Annex exemption sets a precedent for those seeking to destroy both private and public historic buildings by requesting a legislative exemption – any powerful person could seek relief by going to a Legislator…
What is the Action?
  1. Send a letter to the Legislature and condemn this trailer bill process because it weakens preservation laws. Eliminating the State Capitol from SHPO consultation sets a bad precedent which would allow future exemptions for any private or state historic project. 
  2. Call and meet with legislators to voice opposition to this process that weakens historic preservation laws. Ask your Board members to do the same.
  3. Submit opposition comments to the Governor.
  4. Ask your members to contact their State Assembly Members and Senators to:
    • Go on record opposing the exemption of the Capitol Annex Project from the State Historic Preservation Officer’s review.
    • Strengthen State Historic Preservation laws by blocking future exemptions for state or private projects.
    • Oppose amendments to Joint Rules Committee Chair Ken Cooley’s pending legislation (AB 2519, AB 2209, and AB 709) which, if amended, could again block pending lawsuits before the Court makes a decision on the arguments.
Sample Letter

Dear Legislator,

I was recently notified of an alarming action that undermines the authority of the State Historic Preservation Officer (SHPO) to consult on the Capitol Annex Project.

On June 26, 2022, amendments were slipped into SB 189, one of the many budget trailer bills which amended the Capitol Annex Project Act. Language specified that the Joint Rules Committee, not DGS, was in charge of decisions over the project. The amendments also exempted the project from SHPO consultation.  The bill did that by adding SHPO consultation (PRC 5024 and 5024.5) to the Annex Act’s original list of statutory exemptions (Government Code Section 9112). The budget committee’s analysis of SB 189 did not mention or analyze the SHPO exemption. SB 189 amendments became law on June 30, 2022. 

This single act sets a dangerous precedent to nullify laws meant to protect historic resources.

I request that you condemn this trailer bill process because it weakens preservation laws.  Eliminating the State Capitol from SHPO consultation sets a bad precedent which would allow future exemptions for any private or state historic project. 

Stewardship of California’s historic resources depends on the judicial process and adequate review from the SHPO. I request that you preserve the integrity of existing historic preservation laws by opposing future exemptions for state or private projects, including any amendments to Joint Rules Committee Chair Ken Cooley’s pending legislation (AB 2519, AB 2209, and AB 709) that would be used as leverage to block pending lawsuits before the Court makes a decision on the arguments.

Thank you for your consideration and support for historic preservation.

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