California

California Preservationists Sue To Overturn Law That Requires Property Owners Consent To Having Their Homes Landmarked

The lawsuit from three Orange County preservation groups argues that supposedly historic buildings should be afforded the same environmental protections as "air, water, and forests."

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A coalition of preservation groups in Orange County, California, is suing the coastal community of Laguna Beach in an effort to overturn a recent amendment to the city's historic preservation ordinance that requires property owners to voluntarily opt in to having their homes considered a historic resource and all the restrictions that come with that.

"It would be unthinkable for the City to require owner consent to review biological habitat or wetlands during the approval process," said Krista Nicholds, president of Preserve Orange County, in a press release. "State law recognizes that historic resources have comparable public benefit. Owner consent has nothing to do with objective standards of historic merit."

Last week, Preserve Orange County, alongside the Laguna Beach Historic Preservation Coalition and Village Laguna, filed a lawsuit in the Superior Court of California, County of Orange arguing that Laguna Beach failed to conduct sufficient environmental review—as required by the California Environmental Quality Act (CEQA)—when approving its new voluntary preservation law in August 2020.

Supporters of the voluntary preservation ordinance counter that Laguna Beach had for years been relying on an outdated "historic inventory" when determining which buildings were historic resources. Homeowners were often unaware of their properties' supposed status as a historic resource and thus were blindsided by the restrictions that come with that status when applying for permits to perform even basic alterations.

"They would make their planning applications and they'd just get ambushed by someone popping up and saying this is a historic resource," says Larry Nokes, a Laguna Beach attorney who was an advocate for amending the city's preservation ordinance.

Property owners "looking at a fairly simple window replacement or door replacement would be forced to get a historic assessment of the house at their expense and then find that they were limited at what they were able to do in their remodel," he says.

"In 2011, I was able to hire a contractor to install new clad windows, fireproof the house with Hardback siding and drywall the interior walls. However, when I went to the city to pull a permit, I was told I was on the historic inventory and would have to install all wood," wrote one Laguna Beach homeowner in a blog post published by Let Laguna Live, a group that supported the voluntary preservation ordinance. Not until October 2020, after the passage of the new preservation ordinance, was this homeowner able to obtain permits for these modest alterations, according to the post.

The conflict over what counts as a historic resource in Laguna Beach goes back to 1980 when the city created a Historic Resources Inventory of 852 pre-1940 homes.

In 1989, the city considered a historic preservation ordinance that would have automatically deemed anything on this inventory to be a historic resource. That idea, says Nokes, provoked huge opposition from homeowners at the time, so much so that the city council instructed city staff to amend this draft ordinance to make clear that it would "apply the historic preservation program on a voluntary basis only."

Under that ordinance, homeowners could volunteer to place their homes on the Laguna Beach Historic Register—a separate list of properties from the historic inventory—and receive incentives for doing so.

But beginning in the 2000s, says Nokes, "the way the city started to apply the matter was that if your house was on the inventory you were considered to be a historic resource and that you as a homeowner had to prove to the city that you the house was not a historic resource."

This presumption that properties on the inventory were historic buildings frustrated a growing number of homeowners looking to make changes to their property, says Nokes.

To remedy this problem, the new voluntary historic preservation ordinance passed by the city makes three main changes that protect the property rights of homeowners.

Firstly, it creates for the first time a comprehensive city-level definition of what counts as a historic resource. In order to qualify for that designation, a property has to be listed on the city's historic register or on a state and national historic register. Secondly, it requires that property owners consent to be placed on the city's historic register and provides them with incentives for applying to do so, including property tax breaks and relief from minimum parking requirements. Lastly, the new ordinance scrubs all references to the 1980 historic inventory from city regulations and policy documents.

The new law does not remove any properties from the city's historic register. The ordinance still goes too far for preservationist groups who candidly argue in their lawsuit that many homeowners can't voluntarily be trusted to maintain their properties as is.

"Property owners with plans to clear valuable coastal lots for new buildings are likely to oppose rather than consent to historic status despite the unique historic value of existing buildings," reads their complaint. "Owners will not be required to explore options for the feasible, cost-effective expansion and restoration of historic homes…Laguna's Historic Preservation Program will thereby facilitate needless, irreversible damage to [the city's] charming beachtown character and historic legacy."

CEQA requires that government agencies study "projects"—which include things like zoning or historic preservation ordinances—for significant environmental impacts before approving them. Should significant impacts be found, said agencies must mitigate them before approving a project. The law also empowers third parties to sue if they believe a project was approved without studying some environmental impact.

A 250-page study prepared for the city on its voluntary historic preservation program determined that it would not have any significant environmental impacts. Preservation groups argue that this conclusion was reached in error and that the city's new ordinance needs to be put aside until an even more thorough environmental impact report can be performed.

Specifically, they argue that CEQA "protects the historic 'built' environment to the same extent as the state's natural resources such as air, water, and forests" and that owner consent is wholly irrelevant to whether a property merits historic protection.

It's not unheard of for preservationists to try to landmark properties as historic over the consent of their owners. In 2019, Denver preservationists attempted to landmark the long-standing Tom's Diner in order to prevent the owner from selling the property to a developer as a means of funding his retirement, for instance.

The theory behind these efforts is seemingly that the value residents gain from looking at a historic building outweighs whatever plans the person who actually owns that building might have for their property. The lawsuit filed against Laguna Beach's preservation ordinance adds another wrinkle to this idea by arguing that buildings are every bit as pristine as nature itself and thus should be afforded the same level of protection.

Nokes argues that preserving truly historic buildings and property rights need not be an either-or proposition.

"People who are passionate about historic preservation are passionate about it. There are other people who have a piece of real property and they want to use that for their family," he tells Reason. "The ordinance does nothing to dampen the enthusiasm of the preservationists, but it also doesn't do anything to place the other owners in a state of real estate servitude where they have to maintain the property as a historic resource or be subject to criminal penalties."

NEXT: Some Local Governments Are Still Punishing People for Having a Few Chickens

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  1. I see alot of “fires” in orange county in the near future

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  2. “People who are passionate about historic preservation are passionate about it.”

    Then they should be passionate enough to raise the money to meet the homeowner’s “I don’t want to sell, but…” price.

    1. At the end of the day, if you are in Orange County, fighting the development of an old building, it really means you are trying to keep apartments out of your community. I live here, and I spend time on the local forums where this is regularly discussed.

      When you get to places like Irvine, Orange, Lake Forest, Mission Viejo, etc- typically you have a small main-street like area surrounded by miles of McMansions (which used to be farm land). There are notable exceptions, but when people talk about “preserving” Orange County, that is largely what they want to preserve. They like the old buildings in the town centers, but they also like having a block with 20 total families on it, adjacent to a small elementary and a park. They don’t want apartments increasing inventory (and pushing down prices). They don’t want people crowding their schools or parks. And they certainly don’t want the traffic.

      Mind you, these are the same people who bitched and moaned about how ridiculous the housing was back when they were buying. Or they are people who had the house transferred to them by their parents, thereby escaping the massive tax increase that comes with buying a market-value house here.

      1. The concept of historical preservation in SoCal recalls a princely one liner in a George Bernard Shaw play set in a royal Balkan court:

        “Some of our courtiers can trace their family trees back for thirty, or even forty years !”

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      3. Yeah, when I was in OC there were a lot of people who took pride in the fact that there weren’t many “sky scrapers”. The fact that lack meant housing was really expensive and there was a homeless camp of hundreds bedded down on the Santa Ana river bank by Angel’s stadium as a result, two things they complained about, didn’t connect.

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  3. If I lived in that county, I would look up the officers of the ‘preservationist’ groups (assuming they are corporations) and get every home they owned designated historic, and their cars. Then I would get the membership lists and do the same.
    All in the name of history, of course.

  4. If they want to preserve it, they should pay market value for the property and maintain it themselves. No one should be able to prevent a property owner from using his property.

    Also, the idea that ‘historic character’ is an environmental issue is laughable on-face. If CA courts aren’t a joke, this lawsuit will be dismissed day 1.

    1. The problem with setting the price at ‘market value’ is that it can be set artificially low. It often is a point of contention in eminent domain cases, for instance.

      Even if you set the sale price at something like ‘double market value’, it’s somewhat meaningless if the ‘market value’ number was lower than what you would have agreed to in the first place.

      And the government has several means to artificially lower your property value in any event. They could re-zone it. They could declare it blighted. They could condemn it. They could revoke your occupancy permit. The list goes on . . . I don’t trust the people who would attempt to forcibly register someone else’s property as historic over the objections of the owner to not use whatever means is available to them to achieve their desired outcome, no matter how shady it might be.

      No one should be forced by law to relinquish their property to any group or agency without their consent, for historic preservation purposes, at any price. There are many other options. It’s up to the group or agency that wants to preserve the property to come up with a deal that is beneficial enough for the owner that they decide to agree willingly.

      1. “The problem with setting the price at ‘market value’ is that it can be set artificially low. It often is a point of contention in eminent domain cases, for instance.”

        I think the point that Squirrelloid was making was “they should be willing to pay a price that will result in the owner selling it to them”.

        1. That’s probably true, regarding the point he was making. But I have seen too many instances of that sort of phrasing being codified and then abused.

          1. Market value means what the owner will sell at. Any differing use of the term is simply wrong as a matter of meaning.

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          2. Also, the government shouldn’t even have those other powers you refer to, especially on a discretionary basis. (Zones shouldn’t even exist, but if they do, reliance interests should prevent changing them *unless* the property owner requests the change. Blight and condemnation should be strictly limited and require a particularized showing of fact in an adversarial hearing before a court. And the hell is an ‘occupancy permit’? – that shouldn’t even be a thing.)

  5. Let us hope that Krista Nicholds home is on the historic register. What the fuck makes people think that they have the right to tell other people what they can and cannot do with their own property?

    1. Unfortunately, far too many people have delusional communalist ideas. They see things in the world around them that they want to control, and assume a mandate based on, well, that desire to control. For most of them issues like environmental protection, historical preservation, or social grievance are just a cover.

    2. In theory I totally agree with you. In practice, it does get complicated. A buddy of mine bought a house in a decent school district, and was your general laze faire home owner. Then someone tried to put a strip club one block away, and he became very actively involved in the local city zoning rules. While I would like to say I’d be open to people doing what they want with their property, I am not certain I’d live up to my principles in such a situation.

      It is one thing for me to say “I don’t care if you paint your house polka dotted” but it is a real test when you turn your house into a drug den or something like that.

      This is generally why I approve of covenant neighborhoods, because despite all the assholery that nosy neighbors get into, at least they are administering it in a small region rather than at the city level. At some point you need to have a way for people to form a compromise that might require an encumbrance/easement on what you can do.

      For example, a ranch in Colorado is currently subdividing and selling 200 acre plots. However, with that purchase is the agreement that you only get to develop 10 acres on that plot, and must leave open the rest for use of the ranch (essentially cattle).

      1. I, too, leave the libertarian reservation when it comes to strip clubs and the like in residential neighborhoods.

        I think that goes a bit further than simply remodeling your porch in a “nonhistorical” manner.

        1. Contrariwise, the fact that your house used to be “omg a piece of history squee!” isn’t really a reason to limit normal repairs and renovation on that house. Pay for any historical-based restrictions *if* the owner is agreeable – and raise the money not through taxes but through historical societies.

        2. I think that anything you do with your property that causes actual damages to your neighbors would be a valid point of contention in *Libertopia*

        3. Eh, objecting to strip clubs in residential neighborhoods is just our ridiculous cultural puritanism.

          But if you really object, you should get together privately with like-minded citizens, and buy the property from them.

          (It’s also not clear to me that strip clubs would want to be located in residential neighborhoods. In a culture of puritanism, no one wants their neighbors to see them actually going to a strip club, which is why they tend not to be in downtown business districts either).

    3. hello

  6. My home, in the north of the state, was built in 1867. It is not on the Historic Register or any official list because the woman who was born there in 1904 and sold us the home had refused to sign up.
    The county building permit office refused us permits because it was ‘on the list of homes that could be on the list,’ and should therefore be treated as if the seller had actually signed up.
    The hoops we had to jump through cost us. Initially we were told that we couldn’t replace original single pane windows with rotted munions with newer double-paned ones, but rather had to pay to have the 16 windows professionally restored at $1500 each. Since the same permit office required replacements be double-paned, we won that one.
    Why certain people claim ownership of things they clearly do not own and do not pay for is a mystery.

    1. The original (and eternal) form of human greed:
      1. I see it.
      2. I want it.
      3. I own it.

  7. “You didn’t own that!”

    1. “You didn’t build that, and you can’t rebuild that!”

  8. I’m an architect, and we work on historic preservation projects from time to time. There are several compelling reasons why an owner of a large commercial property might wish to voluntarily place their building on either a local or, more often, national historic register. Tax incentives and marketing value being primary among them. When you do make improvements to the property, the additional cost is offset by the historic agencies in charge through tax credits. You get to sell the building as especially unique to prospective residents or commercial tenants. There are additional hoops to jump through, but the benefits often outweigh the costs. Easy decision for them.

    There isn’t a similar benefit for a private homeowner or the owner of a small business, like Tom’s Diner. You give up the ability to modernize or improve your building for what – lower off-street parking requirements? Closer side-yard setbacks? Meanwhile your resale value instantly dropped 30% because if you want to add a dishwasher or replace your gutters, you’re going to be subjected to a ‘public review and comment’ meeting at the local council. No thank you. That shouldn’t be foisted upon anyone. It’s an illegal taking.

    If there is a compelling societal interest in preserving a residence – if something *actually* historic happened there, or it’s some sort of masterpiece of residential architecture, then the group or agency who decides it should be preserved ought to make arrangements with the homeowner. They could buy the property. They could enter into a continuing maintenance agreement. There are many other options besides forcing other people to do what you want, over their objections.

    1. Interesting, thanks.

      1. Not as interesting as having to submit plans to the National Park Service (among other state and local agencies) for renovations to a high-rise building in a downtown metropolitan area.

        We have a weird government.

  9. “objective standards of historic merit.”

    What a concept!

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  10. says Nokes, “the way the city started to apply the matter was that if your house was on the inventory you were considered to be a historic resource and that you as a homeowner had to prove to the city that you the house was not a historic resource.”

    Would someone *kindly* translate that quote into English?

    1. If homeowners don’t ‘voluntarily’ sign up to be on their list of historic homes, they list homeowners on the list anyway and then put the onus on the homeowners to prove they should not be on that list. Expenses for that are on the homeowner of course.

    2. By law, the ‘inventory’ was a list of residences that were eligible to be placed on the ‘registry’ with the homeowner’s consent. Two separate lists, with the registry being the shorter of the two. Only properties on the ‘registry’ were required to follow the additional rules. But, illegally, the city began to treat all of the properties on the ‘inventory’ as though they were on the ‘registry’, and subjecting them to the enhanced restrictions, without the consent or sometimes even the knowledge of the homeowner.

      1. That is what happened to me. They even had the gall to say that we should have researched the property better before buying. After they said that, I asked to see the list of places that could be on the Historic Register. They refused, saying it was confidential.
        Kafka, anyone?

        1. It’s your own damned fault for not finding out about the secret list that you’re not allowed to see. You should have known better.

          Legally, I don’t believe that the list could possibly be confidential. More likely, the government employee you were dealing with was an incompetent idiot. (I’ve never met one who would be considered competent in the private sector)

        2. “But the plans were on display…”
          “On display? I eventually had to go down to the cellar to find them.”
          “That’s the display department.”
          “With a flashlight.”
          “Ah, well, the lights had probably gone.”
          “So had the stairs.”
          “But look, you found the notice, didn’t you?”
          “Yes,” said Arthur, “yes I did. It was on display in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying ‘Beware of the Leopard.”

    3. Simple. Prove your innocence. Didn’t you know that’s how it works here?

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  12. So historic laws are in place and now can never be changed, updated or modified since the are the most important cultural heritage CA has. Really no more different than biology. And the laws belong to the people with no more property rights. No more referemdumbs. Fuck property rights and everything else.

  13. I see alot of “fires” in orange county in the near future…. MY JOB INFO

  14. “…The lawsuit from three Orange County preservation groups argues that supposedly historic buildings should be afforded the same environmental protections as “air, water, and forests.”…”

    And some people are confused when the rest of the world laughs at them.

  15. “You don’t own that”,

    – BHO (paraphrased)

  16. So historic laws are in place and now can never be changed, updated or modified since the are the most important cultural heritage CA has. Really no more different than biology. And the laws belong to the people with no more property rights. No more referemdumbs. Fuck property rights and everything else. freelicensekeys.com

  17. “Nor shall private property be taken for public use, without just compensation.” The public gains value in that history is preserved. The owner loses value in that he can’t alter “his” property without permission. The owner’s private property rights have been taken for public use without just compensation. Now we just need to put a value on reduced ability to modify one’s property, and increased bureaucratic needs in perpetuity.
    Is the Constitution on some banned reading list in California?

  18. As a township historical commissioner, I have to maintain eternal vigilance against those “preservationists” who want to force “historic property owners” to do things they may not wish to do. Lots of local historic commissions have openings to which you can get appointed.
    Look into it. Fight against eminent domain, against ordinances that require an owner to use certain materials, against ordinances that require access to the property or invade privacy.

  19. A place should not be a historical site unless four things are done.
    1. The owner wants it made into one
    2. Something historical importance has to have really happen their
    3. The place should at least be 100 to a 150 years old.
    4. It must also be a museum open to the public.

    Other wise you are not allowed to declare it a historical site at all.
    We are being threaten with this problem on our property right now over a barn that has stand a little over a hundred years now. They want the barn their, but they do not want to come up with the money to keep it standing. Much less fight with the rattle snakes that live in it.

    1. Are they at least historic snakes?

      1. And have they been registered to vote?

      2. Wait – I should have said,

        “Are they at least hiss-toric snakes?”

      3. One of them descends from the snake on the Gadsden flag.

        So yes to historic, but the wrong kind of historic so it’s actually mandatory to get rid of them.

    2. Just tear the barn down and tell them to go fuck themselves.

  20. OT – Democratic Unity Squads enforcing national reconciliation:

    https://twitter.com/breeadail/status/1352902964369883136

    1. I’m not usually a supporter of the Catholic Church, but if that congregation had decided to burn the snotty little punks who invaded their church at the stake, and they were charged for it, if I were on their jury, they’d walk.

      -jcr

      1. I was thinking more in terms of a few months in prison, but even that is probably an overestimate of what will happen to them.

    2. So, like Pussy Riot.

      1. I fear there will be no need to free these “demonstrators,” since I’m not even sure they’ll be going to prison, so there’s a distinction between them and Pussy Riot.

        1. A better comparison would be invading a courtroom while a trial is in session. Assume it’s traffic court. The demonstrators rush in with their signs (“I can’t drive 55”) and chant “no more hateful traffic tickets/let us tell you where to stick it.” Then when the bailiff grabs for them they pull away and tell the bailiff not to fucking touch them.

  21. I wonder if the preservationists would extend that logic to the historic dams they want to blow up?

    1. Or historic statues of early European settlers in California?

  22. This seems like it should be really easy. If the preservationists want to keep those properties in their historical condition, they should simply buy the properties themselves.

    This idea that every property created before 1940 is “historic” is just silly. Not everything old is historic. Sometimes, old trash is still just trash.

    1. Careful, saying such things about old trash, may get you a visit from the Secret Service.

  23. “It would be unthinkable for the City to require owner consent to review biological habitat or wetlands during the approval process,” said Krista Nicholds, president of Preserve Orange County, in a press release. “State law recognizes that historic resources have comparable public benefit. Owner consent has nothing to do with objective standards of historic merit.”

    Those other “resources” are natural. Historic resources exist only because somebody made them. That’s the difference.

    1. It’s almost like you have to point it out, obviously, write it on a giant plywood sign, and then pretend you didn’t knock her into the woodchipper when you discarded the sign.

      Almost.

    2. My Cousin inherited his parents property when they passed away. His parents neglected some of the upkeep on the property, especially a drain pipe that ran under the driveway. This resulted in about an acre being turned into a swamp from rain water. When he got the property he went for a permit to replace the drain pipe and was turned down because a Township Commissioner said that it was a wetland. When he went to tear down a barn, he was denied a permit because the barn was “historical” by the same Commissioner. He wanted to have some of the property logged, nope, environmental concerns no permit, same Commissioner. He entered into an agreement with the golf course that shared a property line, to subdivide and build houses. Permit denied. Finally he put the property up for sale after all of this diminished the value. Guess who bought it? The same Commissioner. All of the sudden the barn was torn down, the trees were logged, the driveway drainpipe was replaced and the houses are going up.

  24. Krista Nicholds is very, very stupid person. She is so stupid she said:

    “It would be unthinkable for the City to require owner consent to review biological habitat or wetlands during the approval process

    1. She’s also a classic middle-aged woman who thinks she knows more than she actually does.

  25. Anybody who thinks there is such a thing as private property and ownership is just fooling themselves. The government can take anything anytime.

  26. Krista Nicholds statement was indefensible, but this: “Owner consent has nothing to do with objective standards of historic merit.” is truly frightening!

    I live in Arlington County, Virginia; named after Robert E. Lee’s estate (which) is now a National Cemetery.The County Board has determined in their “objective standards of historic merit” that he must be excoriated from the History books and public buildings.

    I doubt their virtue signalling will go so far as to change the County’s name, or are “objective standards of historic merit” malleable?

  27. Having a property designed as historic is worse than any HOA you get stuck with…

  28. I believe it is called “Orange County” because of all the orange groves.

    Where were the preservationists when the orange groves were cut down?

    1. Applauding. How dare those orange growers make a profit from using our land and water. The same way Pecan farmers are being excoriated now.

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