Opinion: Can a Local Organization Make Your Property a Historical Resource Without Permission? You Bet!

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By Daniel Rosenthal

While it’s pretty clear in the new Historic Preservation Ordinance that a property can’t be put on the Laguna Beach Historic Register without owner consent, not being on the local register does not mean your property can’t become a historical resource against your will.

The new ordinance says that “historic resources” are properties that are on the National or State registers or are eligible to be listed there, properties that are on the City’s Register, and properties where “the City is mandated by law to treat as a historic resource based on substantial evidence in light of the whole record.” This language mirrors state law (California Code of Regulations (14CCR, 15064.5). It’s this last part of the definition that can make your property a historical resource over your objections.

Suppose you own a cute cottage in the village that was built in the 1930s. Although altered over the years, it still retains a lot of street charm and classic beach cottage style. It was C rated on the 1982 Inventory but never placed on the Register.  You apply for a building permit to add a substantial addition to the back. Here’s what might easily happen:

  1. The way I understand it, the City will look at the file on the property and see all the background information, including when it was built and the fact that it is not on the Register but was on the now invalid inventory.
  2. Now here’s where things can go sideways. City staffers are supposed to then decide whether or not they should consider if the property might be a historical resource. 
  3. If the City decides that it should not consider this question, then the application continues through normal channels.
  4. Now let’s say that you put up the required story poles and one of your neighbors or someone just driving by happens to be part of a local group that is fervently dedicated to the preservation of all older structures in Laguna. At the required public hearing for your project, representatives from that group show up en masse to assert that the property is, in fact, a historical resource. The City stands by its decision and approves the project. The local preservation group sues to stop the project, claiming the City’s decision is wrong. You are now exposed to massive losses of time, energy, and money while the propriety of the City’s decision is litigated.
  5. If the court rules that the City erred in its decision not to consider historicity, it must then get a preliminary historical assessment from someone qualified by the State to do so. It must hold a public hearing to gather all the evidence about the historic aspects of the property. At that hearing, the property owner, the local preservation group and even preservation advocates from outside Laguna can present their cases on the public record. If, after reviewing all the evidence, the City decides that your property is, in fact, a historical resource then, according to California law, and our City’s new historic preservation ordinance, it will be treated as such going forward. Even if a homeowner believes the City has grossly erred in its final determination, as long as the process was properly followed, a court will not overturn the decision. Your property has now become a historical resource without your permission. Case closed.

Since the City Council is the ultimate determiner of whether or not a property can become a historical resource, homeowners in Laguna Beach should do everything we can to ensure that the people we elect to the Council reflect our views on property rights and historical resources as closely as possible.

Daniel is a member of the Laguna Beach Heritage Committee and former chair of the Laguna Beach Historic Preservation Ordinance Task Force.

Editor’s Note: The views expressed in this piece are solely those of the author and do not represent the views of the City of Laguna Beach or any of its committees.

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