L.A. Made Your House Historic and Never Told You

When it comes to the debate over historic nominations, the prototypical story involves an old house destined for demolition and a person running into City Hall to stall the bulldozers by nominating the house as historic landmark.

That traditional story played out in 2016 with the "Walt Disney House," which was set for demolition until the director of planning for the city of Los Angeles filed an application to designate the house as a historic-cultural monument. That application provided the city's Cultural Heritage Commission (CHC) an opportunity to consider whether or not the house qualified as a "historic resource" (under the city's defined criteria for designating Historic-Cultural Monuments) before demolition could proceed. Ultimately, the CHC evaluated the nomination, provided advanced notice to the property owner, scheduled a public hearing at which members of the public as well as the owner had the opportunity to present testimony, and made a determination at the hearing about the house qualified to be designated a historic-cultural monument. In this case, the CHC voted in favor of the nomination, and on November 23, 2016 the Los Angeles City Council adopted the CHC's recommendation and approved the home's Historic-Cultural Monument status at its regularly scheduled council hearing.

In reality, however, these "typical" cases are only the tip of the iceberg of a much more sweeping, yet almost completely unpublicized, effort by the city to give historic status to tens-of-thousands of homes and properties across the city, without ever telling anyone about it. This effort, under a program called SurveyLA, is a massive effort, coordinated by the city's Office of Historic Resources, to produce a citywide survey of potentially "historic resources." This survey is being compiled by hired contractors, volunteers, and interns enlisted to "walk and drive every street in Los Angeles [to] record properties that meet criteria for listing" as historic. After performing these drive by "field surveys," and perhaps researching some permit records, the contractors then make a determination whether or not to list any given property in the survey. The property owner is never notified, and no hearing is ever held. Once listed in the survey, the property is historic for the purposes of the California Environmental Quality Act (CEQA); at least, that's what the city has decided.

As a land use lawyer by trade, I discovered this situation through my work with homeowners seeking to demolish or remodel older homes that had been listed in draft SurveyLA findings. These homeowners were consistently getting stuck in the planning review process, and were being told by the city that their existing home's listing in SurveyLA created a "presumption" that it is historic under CEQA. They objected in every way possible, but ultimately were not given any opportunity to appeal this determination to any agency or commission. Many considered, and continue to consider, the idea of bringing a lawsuit against the city so at least they would be given a day in court, but this path is obviously cost prohibitive for the average single-family homeowner. Most recently, on January 13, 2017, the Venice Neighborhood Council's Land Use and Planning Committee (LUPC) adopted a motion urging the city to change course on this policy [pdf], and to bring the city's policies into conformity with state law. The motion recommends as follows:

[T]hat LUPC and the VNC Board find that there has been and continues to be significant negative community impacts on Venice Stakeholders related to the City of Los Angeles' questionable interpretation of CEQA as it relates to the publishing of SurveyLA reports.  Negative impacts include but are not limited to, loss of property value, significant delays in the permitting process for single family homes of ordinary longtime residents and being required to hire onerously expensive land use consultants and attorneys.

As detailed in the LUPC motion, SurveyLA has been creating serious challenges for homeowners with listed properties, particularly in those in areas like Venice where remodels or new construction projects are subject to discretionary city review. For projects in these areas, homeowners are being forced to prove to the city one of two things: either 1) the remodels will preserve the home's "historic character" or 2) the property should never have been included in the survey in the first place. If you chose the first path, don't count on being able to get a demolition permit, because that's no longer in the cards for a potentially historic resource. If you are truly remodeling, then it is in city staff's sole discretion to determine whether or not those remodels harm or preserve your home's "historic character." You can argue with them, but the city has the final say. If staff doesn't approve of the remodel design, a permit will never be issued. If you chose the second path, you will have to hire an architectural historian to prepare a costly study in the hopes of proving to the city that your home is not historic. If you can't afford the study, or if your architectural historian concludes that your remodel will adversely affect the historic integrity of your house, you are out of luck. If your architectural historian concludes that your remodel will not adversely affect the historic integrity of the house, the city can still disagree and refuse to allow renovations to proceed. In practice, city staff has the power to determine whether or not your listed property is historic and whether or not you can get a permit to remodel your home, and neither the CHC or the City Council appear to have a say.

Hundreds, if not thousands, of property owners have been caught up in this mess. None of them received advanced notice that their property was being listed, and none of them have been granted a right to appeal the property's listing. Even more concerning, through a twisted interpretation of the legal standards under the CEQA, the city is simply presuming any listed property is historic, even though the survey has never been adopted and contains almost no evidence substantiating its findings. This is the problem people are running into with SurveyLA: it gives people no notice, no appeal, and is supported with almost no evidence.

No Notice

As it stands today, the surveys performed under SurveyLA, which designate thousands of properties historic under CEQA, are incomplete and have never been officially adopted by any city agency or body. The city has also yet to send a single official notice to any property owners affected by these surveys. Notwithstanding this, the city is still using SurveyLA as a basis to presume that any listed property is a historic resource. This seems in contrast to the city's apparent original intent when it adopted the SurveyLA program, illustrated by the City Council's clear intent that the survey be first approved by the CHC before it is given effect. In fact, a 2005 report from the city's Chief Legislative Analyst [pdf] that described the SurveyLA program for the City Council at its inception in 2005 stated that ultimately the "survey data would be passed to the CHC for final review and approval." Additionally, although the city's antiquated Historic Preservation Ordinance does not address the issue, in October of 2009, a draft revised ordinance confirmed that the CHC would be tasked with "[c]onduct[ing]… a City-wide Historic Resources Survey, and adopt[ing] the Survey's findings." [Emphasis not in the original.]

Not surprisingly, the fact that the Department of City Planning is treating the survey as a final and approved document, without ever having actually approved it, has come as a shock to many, including the City Council. In June of 2014 [pdf], councilmembers Bob Blumenfield and Jose Huizar attempted to correct this situation through a motion directing the city to notify the public of SurveyLA's findings. Their motion stated that "property owners [and] members of the public who may not know that a site is listed in Survey LA… should be properly advised to avoid making uninformed planning decisions or being surprised during the planning process." They moved and directed the Department of City Planning "to report in 30 days on its efforts to notify existing property owners by mail of sites that are currently listed on SurveyLA." Although the city has been making some efforts to notify developers and property owners that their properties are identified in SurveyLA early in the permitting and entitlement process, no official notices or announcement have been provided to the property owners listed and who may not be currently working with the city on permitting remodels or new construction.

No Appeal

Another serious issue with SurveyLA is that property owners are left without any method to petition the CHC or the City Council to dispute their property's inclusion on the survey. The city is treating a property's listing on the survey as presumptive evidence that the property is historic, even though the survey findings have never formally been adopted by the city or any other agency. Thus, although the survey is just a draft document, it is treated by the city as a final approved document without any of the due process protections or appeal procedures that would have otherwise been afforded had been adopted. This raises the obvious question: What is to stop the city from never adopting the survey and never providing notice to affected property owners if it can continue to treat these surveys with the same level of authority as would be accorded to a designation that had undergone a full public process? Clearly, nothing.

Even more concerning is that notwithstanding the complete lack of due process, in some instances SurveyLA appears to have even broader authority to find a property to be historic than even the CHC, which is specifically tasked with this job under the municipal code. When a property is nominated as historic, the CHC is provided the discretion to approve or deny the nomination after a noticed public hearing. One would presume that denying a nomination is conclusive evidence that the property is not historic, but not so, apparently, when it comes to SurveyLA. There are several cases where properties already denied listing as historic cultural landmarks by the CHC are nevertheless still listed in SurveyLA, and owners are still being required to prepare costly historic assessments to counter the properties listing in the survey. In effect, SurveyLA is operating as a super designation that supersedes even the city's own Cultural Heritage Ordinance, without any of the appeal or public hearing requirements.

No Substantial Evidence

Given that the survey has never been approved by any elected or appointed body, what gives the city the authority to rely on the draft survey findings at all? Well, to the best of my knowledge the city seems to believe that CEQA in fact requires them to enforce the findings. Which specific statute the city is relying on is unclear, but a cursory review of state law as well relevant court decisions suggests that the city may be severely mistaken in their interpretation of CEQA.

While CEQA does contain a provision requiring a property listed in a historic survey to be presumed historic, unless proven otherwise, there are very significant standards in the Public Resources Code that the survey must meet before it may be relied (see PRC Section 5024.1). The draft findings that constitute SurveyLA today most likely do not meet several of these criteria, including the requirements that the survey "has been or will be included in the State Historic Resources Inventory," and that each identified resource be "evaluated… on [a] DPR Form 523." A preliminary review shows that these draft findings most likely fail to meet even these basic requirements, and thus none of the findings may be relied on to presume historic significance of a property under CEQA (see Citizens for Responsible Development v. City of West Hollywood (1995) 39 CA4th 490). A resource identified in a survey "is considered historic only if [the survey] meets each of the four criteria enumerated [in PRC Section 5024.1"]

While a resource does not necessarily have to be listed in an official historic survey to allow a local agency to treat it as historic under CEQA, there is a requirement that the agency have "substantial evidence" supporting its decision should it decide to do so (see Willow Glen Trestle v. City of San Jose (2016) 205 Cal. Rptr. 3d 909). For many of the properties identified in the SurveyLA draft findings, the only evidence supporting a property's listing in the survey is limited to a single individual's opinion, unsupported by any detailed analysis or evidence. This does not constitute substantial evidence under any standard. So while the city continues to suggest that it is only following CEQA when it presumes that property listed in the survey is historic, it may in fact be violating it.

Conclusion

As it is currently being applied, SurveyLA may be one of the most aggressive anti-development and anti-property rights policies ever implemented in the city. Older homes and communities across the city are being locked into development stasis, making even modest single-family home remodels nearly impossible to approve. Many homeowners, who once had planned on remodeling or updating their old homes, or possibly even tearing them down to build a new dream home, are stuck without any path forward at this point in time, all because an intern drove by their house and checked a box on a survey. While I do not question the city's good intentions in trying to preserve historic resources, it's worth questioning whether the process of doing so is fair to those most significantly impacted.

Daniel Freedman is a land use attorney and environmental advocate focused on regional planning issues and sustainable development.