Opinion: The History of Laguna’s Historic Preservation Ordinance

By Larry Nokes

July 14 is the hearing date for the new Historic Preservation Ordinance (HPO). On balance, it is a sensible law. The history of how we got to this point is worth sharing.

The inventory and Historic Resources Element of the General Plan emerged in 1981. Minutes of the Aug. 4, 1981 City Council meeting record the event: “…there were 13 members of the committee and they had prepared a proposed historic element for the General Plan.” The matter was referred to the Planning Commission for public hearing held Sept. 9, 1981.

On Oct. 6, 1981, the matter returned to the City Council. The public hearing and council comments suggest that owners could “…seek low cost loans to help them keep their homes up and prevent problems of deterioration.” A councilmember stated that the ordinance would “ease the way for owners to obtain help in maintaining their property.” The Historic Resources Element was adopted by the Council.

On Dec. 21, 1982, the Laguna Beach City Council adopted Resolution No. 82.111 recognizing the Historic Resources Inventory. The justification provided for adoption of the resolution was the City’s “pending application to the County for $148,000 in Housing and Community Development Block Grant funds for an historic preservation/housing rehabilitation program. For “… the funding proposal to be acceptable to the County, there must be an officially recognized roster of historically and architecturally significant buildings.” It is not clear whether any low interest loan was ever made available to any owner of an inventory house from these funds. The Council did however clearly state that: “Inclusion on the inventory will not, in itself, impose any special obligations or requirements upon the property owner, …”. 745 properties were identified to be listed on the inventory, and were given designations as “E”, “K” or “C” depending on the condition of the structure (“E” being best). The inventory was intended only as a gateway to listing the home on the historic register. Listing on the register was voluntary and required an application by the owner. Once approved, the owner could apply for benefits, including property tax reduction through the Mills Act, and the ability to keep existing non-conformities. As a condition, the property was to be maintained according to preservation standards.
Seven years later, in a dramatic overreach in light of the record, a local group proposed a draft Historic Preservation Ordinance to the City Council seeking a sweeping edict that: “All structures listed on the Historic Inventory shall be considered to be historically significant and shall be subject to the provisions of this Chapter.” Public hearing for the proposed new ordinance was scheduled for May 2, 1989 with the declaration that: “Your property is listed on the City’s Historic Inventory and is therefore eligible for preservation incentives and is subject to the provisions of the ordinance.” In other words, the voluntary program would no longer be voluntary. This effort met with open rebellion, with 200 people appearing at the May 2, 1989 Council meeting to object and protest. Through that protest, the inventory owners were reassured by the Council that the historic preservation program was entirely voluntary, and that these homes would not be so restricted without the voluntary and knowing consent of the owner. Newspaper headlines trumpeted: “Council Gives Historic Homeowners a Win”, with Mayor Gentry referring the matter to the Planning Commission “… with the instructions that any private property placed on the list is done at the pleasure of the property owner, and not the city.” Gentry also said “…it was never the City’s intention to force the residents to join the historic house list against their wishes. Why force someone to join a historic house list if they don’t want to? It was never our intent that this would be anything but voluntary.”

The declaration by Mayor Gentry should have ended the issue. But it came roaring back in the early 2000s, when the City again started playing hardball with the owners of inventory houses. Applications for even the most minor remodel were met with incandescent resistance. The City began treating changes to inventory homes as modifications of “historic resources,” applying an entirely new level of scrutiny and restriction. As the restrictions gained a foothold with the planning staff, even homes that were not listed on the inventory but were merely “old” received a date with the heritage committee. Even after applicants went through the entire pre DRB zoning process, with no concerns raised, their applications could be hijacked from ordinary DRB consideration if a member of the public or a DRB member suggested the house might be “historic,” with no proof other than a bare allegation. The applicant was forced to retain an historian and consultants who would assess the house at a cost to them of thousands of dollars, and those consultants would often decree the house to be an “historic resource.” This all took place without the owner being accorded a public hearing on the issue of historicity. This put even the most modest remodel effort for an older home out of reach. We had arrived at the point of severe administrative abuse.

None of this activity even remotely complied with the law. Under CEQA, a historian cannot deem a private structure to be a “historical resource.” That is a government function, because this type of property restriction cannot be imposed without due process. Moreover, with regard to the inventory, despite the assurances of the original drafters in 1982 and the Mayor in 1989, there was no way off and no way out. Somehow the inventory, or even age alone, was deemed by the City to create a presumption that the property was historic. This was contrary to law. First, age alone creates no presumption. Second, a person urging a finding that a property is historic bears the burden of proving that premise. There is no burden on the homeowner to prove the property is not historic, unless a legal presumption applies. Third, under CEQA, a presumption of historicity attaches to properties listed on a valid local register. No presumption attaches to an inventory which has not been maintained in accordance with the law. Laguna’s inventory had not been maintained as required by California law, and therefor created no presumption at all. Nonetheless, the restrictions were imposed by the City until homeowners fought back.

The new Historic Preservation Ordinance solves these problems and rights these wrongs. It will make clear that the 1981 inventory, which has been abused, and has caused confusion and financial hardship, does not and shall not be interpreted to create any inference of historicity. The burden of proving that a property is a historic resource is on shoulders of the person advocating that position.

It is critical that the consent of the owner of the property be obtained as a condition of historic resource designation. This was promised in the beginning of development of the historic program, was reiterated in 1989 by Mayor Gentry and is consistent with the law.

It has been a difficult road bringing this issue to this point. It required countless hours in public meetings, public communications, and discussion with city staff. It required bringing this to the attention of the public. We have arrived at a point where this problem can be corrected in a way that respects and encourages those who wish to participate in historic preservation, as well as those who do not. All Laguna Beach residents should support the new Historic Preservation Ordinance.

Larry is a Laguna Beach resident and attorney.