Historical Resources Under CEQA. September 14, 2009

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1 Historical Resources Under CEQA September 14, 2009

2 Historical Resources are Defined by the CEQA Statute and Guidelines A resource listed in, or determined to be eligible by the State Historical Resources Commission, for listing in the California Register of Historical Resources. Guidelines ; See also CEQA A resource included in a local register of historical resources or identified as significant in an historical resource survey meeting the requirements of section (g) of the Public Resources Code, shall be presumed to be historically or culturally significant. Guidelines Public agencies must treat any such resource as significant unless the preponderance of evidence demonstrates that it is not historically or culturally significant. Guidelines The fact that a resource is not listed in, or determined to be eligible for listing in, the California Register of Historical Resources, not included in a local register of historical resources, or not deemed significant [in a survey] shall not preclude a lead agency from determining whether the resource may be an historical resource for purposes of this section. CEQA A lead agency may consider an historical resource that does not fall within category a. or b. above provided the lead agency's determination is supported by substantial evidence in light of the whole record. Guidelines

3 Courts Have Interpreted CEQA to Create Three Categories of Historical Resources 1. MANDATORY: [T]he mandatory provision of the statute specifies that buildings listed in, or determined to be eligible for listing in, the California Register of Historical Resources must in all cases be granted status as historical resources. League for Prot. of Oakland's Architectural and Historic Resources v. City of Oakland, 52 Cal. App. 4th 896, (1997) (emphasis added). 2. PRESUMPTIVE: Second, buildings listed on a local register or identified as significant in a survey meeting specified requirements are presumptively historical resources unless the preponderance of the evidence demonstrates otherwise. Id. 3. DISCRETIONARY: Third, buildings which do not fall within the mandatory or presumptive categories may still be deemed historical resources at the discretion of the lead agency. Id.

4 Case Law Explaining How the Three Historical Resources Categories Apply Mandatory: Presumptive: League for Prot. of Oakland's Etc. Historic Res. v. City of Oakland, 52 Cal. App. 4th 896 (1997) Discretionary:

5 Mandatory Historical Resources Background: Submission of a demolition permit for a1913 Craftsman apartment building; one of the W.P. Cutting Flats. Valley Advocates, 160 Cal. App. 4th at Historic Preservation Commission nominated the flats for listing on the local register. Fresno City Council voted 4-3 to deny the listing. Available at _ /Fresno-directed-toreconsider-whether.html. Based on the decision not to designate, the City Council of Fresno determined the proposed project was exempt from CEQA, and approved the project. Valley Advocates at Valley Advocates sued under CEQA. Id.

6 Mandatory Historical Resources Issue: Are the WP Cutting Flats mandatory historical resources under CEQA due to eligibility for listing on the California Register? Valley Advocates at Parties Arguments: Valley Advocates argued that the Flats were mandatory historical resources because substantial evidence demonstrated that the building was eligible to be included in the State Register. Id. The defendant argued that the Flats were not mandatory historical resources because only a State Historical Commission determination of eligibility for inclusion in the state Register triggers the mandatory historical resource provision under CEQA Guidelines section (a)(1). Id.

7 Mandatory Historical Resources Legal Analysis: The plain language of Guidelines section (a)(1) identifies the State Historical Resources Commission as the sole body whose determination of eligibility for listing on the California Register triggers the mandatory historical resources provision of CEQA. Valley Advocates at Facts: Court found no evidence that the State Historical Resources Commission listed the Flats or determined that the Flats were eligible for listing on the state register. Id. at Indeed, there was evidence to the contrary. City planning and development department staff testified at the City Council meeting that the subject building is not on a state register [and] has not been found to be eligible for a state register by the State Historic Preservation Commission. Id.

8 Mandatory Historical Resources Holding: The Flats were not mandatory historical resources because there was no evidence that the State Historical Resources Commission made a determination of eligibility for listing on the state Register. Valley Advocates at Door Open for Different Outcome in Future Case: [W]e do not reach the questions whether the interpretation of section 's mandatory historical resource provision set forth in Guidelines section , subdivision (a)(1) is inconsistent with the statute (i.e., is unauthorized) or is arbitrary, capricious, irrational or unreasonable (i.e., is clearly erroneous). Id. at We explicitly note these questions were not raised and are not decided so that this opinion is not mistaken as precedent on those points. Id.

9 Presumptive Historical Resources League for Protection of Oakland's Historic Res. v. City of Oakland, 52 Cal. App. 4th 896 (1997) Background: Montgomery Ward Building was a 1923 Arts and Crafts-Gothic utilitarian warehouse building, the largest industrial building in Oakland. League for Protection at 899. It fell into disrepair, and a joint redevelopment project was brought forward that involved its demolition. Id. at The building was not listed on a local register, but recognized as historically significant in City s General Plan and associated documents. Id. at 907.

10 Presumptive Historical Resources League for Protection of Oakland's Historic Res. v. City of Oakland, 52 Cal. App. 4th 896 (1997) Issue: Does the Montgomery Ward Building qualify as a presumptive historical resource under CEQA? If so, has the presumption been rebutted? Id. at 907. Legal Analysis: Section , subdivision (k), defines presumptively historic buildings in similarly disjunctive language by stating that a '[l]ocal register of historical resources' means a list of properties officially designated or recognized as historically significant by a local government pursuant to local ordinance or resolution. Id.

11 Presumptive Historical Resources League for Prot. of Oakland's Historic Res. v. City of Oakland, 52 Cal. App. 4th 896 (1997) Pertinent Facts: The City's internal documentation consistently recognized the historical significance of the Montgomery Ward Building. League for Protection at 908. Specifically: The official City historical survey for definitive classification of historical landmarks for the General Plan identified the building as eligible for National Register listing. Id. It was identified as "an historic property under Oakland's Historic Preservation Element" of the City's general plan and "eligible for City landmark designation." Id. The City Landmarks Preservation Advisory Board that the building appears "eligible for listing on the National Register," as did the State Historic Preservation Officer. Id. The Historic Preservation Element of the City's general plan stated that "for CEQA purposes" the building is "considered historic. Id.

12 Presumptive Historical Resources League for Prot. of Oakland's Historic Res. v. City of Oakland, 52 Cal. App. 4th 896 (1997) Holding: Despite the lack of formal inclusion on the local register, Under the particular circumstances, we regard the authoritative historic designation of the property in the City's general plan as equivalent to recognition of it as historically significant by local ordinance or resolution... League for Protection at 909. We accordingly conclude that the Montgomery Ward Building must be classified as a presumptively historical resource within the meaning of section We further conclude that the presumption of historic status has not been rebutted by any evidence in the record. Id.

13 Presumptive Historical Resources Court distinguishes facts from League of Protection in relation to presumptive historical resources! Legal Analysis: Court identifies three ways the presumption of historicity is created: A resource is designated on a local register; A resource is recognized as significant by local ordinance or resolution; or A resource is identified as significant in an historical resource survey that meets all four of the criteria in section (g) of the California Public Resources Code. Valley Advocates, 160 Cal. App. 4th at

14 Presumptive Historical Resources Facts: The Flats were located in an historic district, but the Flats were not mentioned in the General Plan. When nominated for designation, the City Council declined to designate. Valley Advocates at , fn.8. The Flats were listed in a survey, but the survey was over 5 years old and had not been updated. Id. at The Court distinguished the facts from League of Oakland explaining: First, City's own documentation has not consistently recognized the historical significance of the [Flats]. Valley Advocates, 160 Cal. App. 4th at Second, City's general plan does not state that the Flats are considered historic for purposes of CEQA. Id. Third, unlike the City of Oakland, City here expressly rejected an attempt to designate the buildings in question to the formal local register of historical resources." Id. There was no evidence that establishes or supports a reasonable inference that the Flats were identified as significant in a survey meeting all four of the statutory criteria. Id. at Holding: The Flats are not presumptively historic under any of the three presumptive categories.

15 Discretionary Historical Resources Issue: Did the City properly exercise its discretion to consider the Flats historical resources? Valley Advocates at Legal Analysis: Section creates the discretionary authority for the Lead Agency to deem something historically significant: The fact that a resource is not listed in, or determined to be eligible for listing in, the California Register of Historical Resources, not included in a local register of historical resources, or not deemed significant pursuant to criteria set forth in subdivision (g) of Section shall not preclude a lead agency from determining whether the resource may be an historical resource for purposes of this section. Id. at This language is ambiguous about: (1) what, if anything, a lead agency is required to do and (2) the extent of its discretionary authority. Id. The Guidelines do address some aspects of these ambiguities, but do not resolve them fully. Id.

16 Discretionary Historical Resources Legal Analysis Continued: [L]ead agencies have discretionary authority to determine that buildings that have been denied listing or simply have not been listed on a local register are nonetheless historical resources for purposes of CEQA. Valley Advocates at The Guidelines explain that the Lead Agency has discretion to treat an object or building as an historical resource for purposes of CEQA and limits that discretion to situations where substantial evidence supports the lead agency's determination of historical significance. Id. at Scope of discretion could be interpreted to mean that: [A] lead agency may elect, in an exercise of discretion, to either consider the question of a building's historicity for purposes of CEQA or avoid the question entirely. Id. at OR [A] lead agency has a legal duty to (1) consider the question of a building's historicity for purposes of CEQA and (2) apply the criteria in Guidelines section , subdivision (a)(3)(a) through (D) when making its determination [citation omitted]. Under this interpretation, so long as these two duties are fulfilled, the ultimate determination is committed to the lead agency's discretion. Id. Court left door open for future determination!

17 Discretionary Historical Resources Holding: [A]t a minimum, a lead agency has the discretion to address separately whether an object or building is an historical resource for purposes of CEQA's discretionary historical resources category. This discretion exists notwithstanding previous decisions not to list the object or building on the local register of historical resources. Valley Advocates at Because the City Council was misinformed when it was told that its prior denial of historical designation of the Flats left no discretionary authority under CEQA to treat the Flats as historical resources, there was a prejudicial abuse of discretion by the City Council s approval of the demolition. Id. at Relief granted: The City Council was directed to set aside the project approval, set aside the findings for the categorical exemption, and review the project application taking into consideration the discretionary authority relating to historical resources. Id. at 1064.

18 Conclusion There are three types of historical resources under CEQA: mandatory, presumptive, and discretionary. There are also three subcategories of presumptive historical resources: designated on local register, recognized by local ordinance or resolution, and identified as significant in a survey meeting all of the statutory criteria. Courts look to factual evidence on a case by case basis to determine if any of the categories apply to the resource. Courts have raised but not decided two important issues for future cases: (1) are the CEQA Guidelines unauthorized or clearly erroneous because they require the HRC to determine eligibility for listing on the CA Register? (2) what is the scope of Lead Agency discretion under the discretionary historical resources category?

19 Questions?