In a recent Guest Editorial in the Union Democrat entitled “Historic buildings deserve protection,” a local activist claimed that four of five county supervisors ignored the California Environmental Quality Act (CEQA) in order to allow Tuolumne’s Speaker’s Garage to be demolished.
Not so, according to legal research conducted by Tuolumne County’s Deputy County Counsel Carlyn Drivdahl.
A group of citizens in Tuolumne has been working hard to improve their town over the last few years. Once a thriving community, Tuolumne fell on hard times after the closing of the West Side mill and most residents are anxious to see their community brought back to life while it retains the special and unique qualities they cherish.
They envision a revitalized downtown that will attract new businesses to help them rebuild. They are concerned about a handful of buildings (all over 50 years old) that would be difficult (and expensive) to rehabilitate, that contribute to the appearance of blight in their community, and that are safety hazards due to their rundown condition.
Tuolumne County is blessed with significant historic resources and the Board of Supervisors has provided for their potential preservation through its Cultural Resources Ordinance. If a building was built before 1958, this ordinance mandates that it can’t be torn down without a permit issued by the county, and then only after review by the three-member Demolition Review Committee (all members of the Historic Preservation Review Commission).
The ordinance has no provision to prohibit a building’s demolition, but the Committee can require certain conditions in exchange for a permit to demolish.
When the Committee considered and then approved the application for a demolition permit, they required some conditions of the property owners – among them photo documentation of Speaker’s Garage, a plan to be drawn up of its footprint, ongoing maintenance of the lot so it isn’t an eyesore, and others.
At least one condition was unacceptable to the property owner – a requirement to conduct a highly technical survey to National Park Service Historic American Buildings Survey (HABS) standards. This condition was in addition to photo and other documentation and would have cost $5,000- $10,000, depending on the level of documentation required.
Further, the property owners felt several of the conditions were ambiguous and they were concerned about possible onerous interpretations so they appealed the Committee’s conditions to the Board of Supervisors.
At the initial appeal hearing, supervisors did not take action, instead telling both parties to sit down together, clarify ambiguous conditions, and come to agreement on new reasonable conditions (minus the HABS survey). The Board did not want to over-rule the Committee – we wanted the Committee to be reasonable and we wanted both parties to agree.
When the appeal came back to the Board several weeks later, we were told that the property owners and the Committee had agreed upon reasonable terms and the HABS survey had been eliminated from the conditions. But there was just one small problem…
Between the time of agreement and our Board meeting, the Fifth District Court of Appeal held in Valley Advocates v. City of Fresno that Fresno had not reviewed a demolition permit properly in light of California Environmental Quality Act’s (CEQA) requirements to make a finding of the building’s historic significance.
The Court opined the demolition should have been evaluated under one of three types of historical resources:
• Mandatory: A lead agency must find a resource is a significant historical resource if it has been listed on or determined eligible for listing on the California Register of Historical Resources. The court explained that it is only an official determination by the State Historical Resources Commission that triggers this mandatory determination. Speaker’s Garage is neither listed on, nor eligible for listing.
• Presumptive: A lead agency must presume a resource is a significant historical resource if it has been listed on a local register or included in a local survey that meets specified criteria, unless the preponderance of evidence demonstrates otherwise. Several experts testified that Speaker’s Garage qualified under this category, however, County Counsel’s research determined that the local survey had to have been conducted or updated within the last five years. The Tuolumne survey was conducted over five years ago and had not been updated so Counsel advised that Speaker’s Garage did not fall under this category.
• Discretionary: A lead agency may determine that a resource is a significant historical resource if it does not fit within the mandatory or presumptive categories, as long as the determination is supported by substantial evidence in the record. When such a determination is made the criteria to be applied include the criteria for listing on the California Register of Historical Resources.
The discussion turned to whether Speaker’s Garage is historically significant to qualify as a discretionary historical resource. In order to be historically significant, the Board would need to make a finding that:
1. It is associated with events that have made a significant contribution to the broad patterns of local or regional history, or the cultural heritage of California or the United States; or
2. It is associated with the lives of persons important to local, California, or National history; or
3. It embodies the distinctive characteristics of a type, period, region, or method of construction, or represents the work of a master or possesses high artistic values; or
4. It has yielded, or has the potential to yield, information important to prehistory or history of the local area, California, or the nation.
A number of Tuolumne residents testified that Speaker’s Garage was an important part of their lives growing up, but that it no longer resembles the building they knew and they wanted it torn down.
But now I saw a problem. I couldn’t get past #2. I asked the daughter of the man who ran Speaker’s Garage for years if she thought it applied – she didn’t think it did. She asked the Board to go ahead and uphold the appeal… let the building be torn down.
I felt the right thing to do for the building, property owners, and the community was to uphold the appeal so the property owners could proceed, but I was concerned that #2 did apply.
It seemed punitive to require the property owners to go through a time-consuming and expensive CEQA process when the building would be torn down anyway, but I felt Speaker’s Garage was associated with someone who was important to residents of Tuolumne.
So I acknowledged the difficulty of my position and regrettably made a motion that the building was historically significant under #2 and that staff should proceed through CEQA review. Only Supervisor Thornton agreed with me. We were out-voted 3 to 2 and my original motion died.
At that point, both County Counsel and I thought the Board’s failure to pass the motion was a finding that CEQA did not apply. Since I thought the Board had ruled that Speaker’s Garage wasn’t historically significant, I quickly and happily made the next motion to uphold the property owners’ appeal. My second motion passed four to one (Thornton dissenting).
The Guest Editorial writer was correct – my first failed, second successful motion, and subsequent vote – took just about one minute.
Several days after that meeting, Supervisor Thornton and others insisted that the Board, in fact, had not made a finding and the item needed to be reconsidered.
Over the next week, I talked to many Tuolumne residents and asked them to poll others. Out of many responses I received from long time residents of Tuolumne, only two people wanted to save Speaker’s Garage. Overwhelmingly, residents said they wanted the blighted building torn down.
When the item came back before us, County Counsel had done additional research. When I asked her if in her legal opinion Speaker’s Garage met the conditions for a presumptive historical resource, she stated it did not.
Next, based on additional questions on typical court interpretations of historical significance, four of five supervisors found for the property owners that Speaker’s Garage did not qualify as a discretionary historical resource and did not require a CEQA review (again, Thornton dissenting).
What does this mean?
The Guest Editorial writer and Historic Preservation Review Commission members are seriously concerned that the Board has established a worrisome precedent. With additional buildings on the list for review for demolition, they fear what happened with Speaker’s Garage will embolden others to eradicate important historic and cultural resources by influencing the Board of Supervisors to ignore requirements for CEQA review.
Many Tuolumne residents are upset, as well. They are upset that others are trying to control their community and that they may be prohibited from removing blighted buildings that property owners can’t afford to rehabilitate.
The reality is that no communities are without any constraints on what they can and can’t do and the Board will uphold existing federal, state, and local laws, including CEQA. Where it is appropriate according to County Counsel, CEQA review will be required but where it is not, it won’t. And the Demolition Committee will continue to review applications for demolition of historic buildings and will continue to condition their approval. The focus should be on balance and what is reasonable.
Our past is an important part of our present and future that should be preserved. But not at any cost. Individuals shouldn’t be forced to bear the entire burden. If a building is too expensive to rehabilitate, but is important enough to save, advocates should be at the front of the pack helping raise funds to do so.