Agenda packet — Colton City Council, June 18, 2024 (part 1 of 3)

1 CITY OF COLTON
City Hall, Council Chambers
650 N. La Cadena Drive
Colton, CA 92324
Website: www.coltonca.gov

Mayor Frank J. Navarro
Council Members:

David J. Toro – District 1
Kelly J. Chastain – District 2
Dr. Luis S. Gonzalez – District 3
John R. Echevarria – District 4

City Treasurer Aurelio De La Torre

City Manager William R. Smith
City Attorney Carlos Campos
Deputy City Clerk Stephanie M. Vargas

AGENDA

CITY COUNCIL,

COLTON UTILITY AUTHORITY, COLTON PUBLIC FINANCING AUTHORITY,

COLTON HOUSING AUTHORITY

REGULAR MEETING
TUESDAY, JUNE 18, 2024 – 5:00 P.M.

CITY HALL, COUNCIL CHAMBERS
CLOSED SESSION - 5:00 p.m.

CLOSED SESSION CALLED TO ORDER

ROLL CALL
PUBLIC COMMENT - Closed Session
This is the portion of the meeting specifically set aside to invite your comments regarding Closed Session items and other general comments about matters not on the agenda; however, any matter that requires action will be referred to staff for investigation and report at a subsequent Council meeting. The Council is prohibited by law from discussing or taking immediate action on items during this public comment period.

Persons desiring to submit paperwork to the City Council Members shall provide copy of any paperwork to the City Clerk for the Official Record.

Speakers will be limited to 3 minutes; provided, however, that the presiding officer shall have certain discretion to extend or limit time as provided for in the City Council Manual of Procedure.

Please state your name and your City of Residence before providing your comment.

2 A. CONFERENCE WITH LEGAL COUNSEL - ANTICIPATED LITIGATION Significant Exposure to Litigation
Pursuant to Government Code Section 54956.9(d)(2)/(e)(1) Two (2) Potential Cases

CITY ATTORNEY ORAL REPORT ON CLOSED SESSION ACTIONS

RULES OF DECORUM

To help conduct the business of the City Council in an orderly fashion, the City Council has adopted rules pertaining to decorum and order, as provided for in the City Council Manual of Procedure. The City Council will strictly enforce these rules in order to allow full expression of ideas and opinions by councilmembers, staff and the public. Generally, the City's rules of decorum prohibit comments or actions which willfully disrupt the meeting. All remarks and questions shall be addressed to the Council as a whole and not to any particular member. No individual Councilmember or member of the City staff shall be questioned without first obtaining permission from the Presiding Officer. The City Council asks that all persons - including councilmembers, staff and the public - act and speak respectfully.

OPEN SESSION
6:00 P.M.

OPEN SESSION CALLED TO ORDER
INVOCATION Pastor Jeff Keneaster - Centerpoint Church FLAG SALUTE Veterans of Foreign Wars (VFW) Commander Bernie Moyeda

ROLL CALL

CEREMONIAL MATTERS
Presentations, Awards, Proclamations
 Proclamation - Fire Chief
 Proclamation - Parks and Recreation Month
 Recognition - SCE Scholarship Award to Colton High Student

MAYOR AND COUNCIL ITEMS

GIFT DISCLOSURES
Prior to rendering a decision in any proceeding involving a license, permit, contract or other entitlement pending before the City Council, any Council Member who has received been promised a gift or gifts aggregating $50.00 or more in value within the preceding twelve months from a party or participant in the proceeding shall disclose that fact either orally or in writing during open session. This disclosure shall be made part of the official public record of the proceeding, either as part of the minutes of the meeting or as a separate writing filed with the city. (CMC Section 2.04.030)

3 AB 1234 ORAL REPORTS
Members of the City Council shall provide brief reports on meetings attended at the expense of the city. (GC Section 53232.3(d))

APPOINTMENTS

MAYOR AND COUNCIL DISCUSSION ITEMS

PUBLIC HEARINGS

To speak on public hearing items, it is requested that you obtain a card from the City Clerk and complete it by noting the agenda item number, as well as whether you are in favor, opposition or neither, and give it to the City Clerk. The applicant will be allowed 5 minutes to address the Council and all other persons will be allowed 3 minutes; provided, however, that the presiding officer shall have certain discretion to extend or limit time as provided for in the City Council Manual of Procedure. (1) Adoption of Water and Wastewater Rates - THIS IS THE TIME AND PLACE FIXED TO CONSIDER A PUBLIC

HEARING ITEM TO WAIVE FULL READING, READ BY TITLE ONLY AND PASS FIRST READING OF AN ORDINANCE FOR THE ADOPTION OF WATER AND WASTEWATER RATES, ORDINANCE NO. O-06-24 & O-07-

24. [Staff Person: Brian Dickinson]
Mayor announces the Public Hearing Open.

City Clerk submits the Affidavit of Publication and reports on protests or objections thereto.

Staff Presentation.

Public Comment.

After hearing public comment , on motion by Councilmember __________, seconded by Councilmember _________, the Public Hearing is terminated.

MOTION __________ SECOND __________

(2) Colton General Plan Cultural Resources Update 2024 - DAP-001-767 - THIS IS THE TIME AND PLACE FIXED

TO CONSIDER A PUBLIC HEARING TO APPROVE AND ADOPT A RESOLUTION OF THE CITY COUNCIL OF THE

CITY OF COLTON TO APPROVE A GENERAL PLAN AMENDMENT FOR A CULTURAL RESOURCES ELEMENT UPDATE OF THE GENERAL PLAN (FILE INDEX NUMBER DAP-001-767), RESOLUTION NO. R-51-24. [Staff Person: Heidi Duron]
Mayor announces the Public Hearing Open.

City Clerk submits the Affidavit of Publication and reports on protests or objections thereto.

Staff Presentation.

Public Comment.

After hearing public comment, on motion by Counci lmember __________, seconded by Councilmember _________, the Public Hearing is terminated.

MOTION __________ SECOND __________

4 BUSINESS ITEMS
There are no business items.

PUBLIC COMMENT Limit 3 Minutes
This is the portion of the meeting specifically set aside to invite your comments regarding Consent Calendar items and other general comments about matters not on the agenda; however, any matter that requires action will be referred to staff for investigation and report at a subsequent Council meeting. T he Council is prohibited by law from discussing or taking immediate action on items during this public comment period.

Persons desiring to submit paperwork to the City Council Members shall provide copy of any paperwork to the City Clerk for the Official Record.

Speakers will be limited to 3 minutes; provided, however, that the presiding officer shall have certain discretion to extend or limit time as provided for in the City Council Manual of Procedure.

Please state your name and your City of Residence before providing your comment.

CONSENT CALENDAR
All matters listed under the Consent Calendar are considered by the City Council to be routine and will all be enacted by one motion. There will be no separate discussion of these items prior to the time the City Council votes on the motion, unless councilmembers, staff or the public request that specific items be discussed and/or removed for separate discussions or action.

(3) Minutes - Approval of Minutes for the City Council Regular Meeting Held on May 21, 2024 and June 4, 2024, on File in the Office of the City Clerk.
[Staff Person: Stephanie M. Vargas]
(4) Warrants - Approve US Bank voucher dated 05/07/2024 and totaling $57,018.84; replacement checks 212467 & 212468 dated 05/14/2024 and totaling $10,035.28; voucher numbers 212469 to 212558 dated 05/16/2024 and totaling $913,379.98; voucher numbers 212560 to 212735 dated 05/23/2024 and totaling $1,555,856.65 and a payroll disbursement listing dated 04/27/2024 to 05/10/2024 totaling $1,130,698.39. [Staff Person: Stacey Dabbs]
(5) Affirm Emergency Condition at Agua Mansa Power Plant - Affirm Emergency Conditions at Agua Mansa Power Plant.
[Staff Person: Charles Berry]
(6) Contract Amendment - EES Consulting - Approve Contract Amendment with EES Consulting to Complete Electric Utility Cost of Service Analysis.
[Staff Person: Charles Berry]
(7) Contract Award - AME Roofing - Approve Contract Award with AME Roofing for the Citywide Roof Tile Replacement Project.
[Staff Person: Brian Dickinson]
(8) Contract Award - Dewberry Architects Inc. - Approve and Adopt a Resolution to Award Contract to Dewberry Architects, Inc. for the City Hall and Police Department Feasibility Study, RESOLUTION NO. R-52-

24. [Staff Person: Anthony Vega]

5 (9) Contract Award - EcoTierra - Approve and Adopt a Contract for Environmental Services with EcoTierra Consulting, and Corresponding Reimbursement Agreement with Applicant. [Staff Person: Heidi Duron]
(10) Purchase - Flock Cameras - Approve the Purchase of Four (4) Additional Flock Cameras. [Staff Person: Anthony Vega]
(11) Set Public Hearing - LLMD I - Set Public Hearing Date of July 16, 2024 to Approve and Adopt the Following Resolutions to Initiate Proceedings for the Annual Levy of Assessments for Landscape Lighting and Maintenance District I for Fiscal Year 2024/2025, RESOLUTION NO. R-53-24, R-54-24, & R-55-24. [Staff Person: Brian Dickinson]
(12) Set Public Hearing - LLMD II - Set Public Hearing Date of July 16, 2024 to Approve and Adopt the Following Resolutions to Initiate Proceedings for the Annual Levy of Assessments for Landscape Lighting and Maintenance District II for Fiscal Year 2024/2025, RESOLUTION NO. R-56-24, R-57-24, & R-58-24. [Staff Person: Brian Dickinson]
(13) Set Public Hearing - Stormwater Fee - Set the Public Hearing Date of July 16, 2024 for the Basic Fee for Storm Water Services and Stormwater Management User Fee. [Staff Person: Brian Dickinson]

MAYOR AND COUNCIL ORAL REPORTS AND COMMENTS
Comments from Mayor and Council on various issues and activities throughout the community. Comments shall be limited to 5 Minutes per speaker.

CITY MANAGER'S REPORTS

ADJOURNMENT

6 I, Stephanie Vargas, the Deputy City Clerk, hereby certify that a true and correct, accurate copy of the foregoing agenda was posted , at least seventy-two (72) hours prior to the meeting per Government Code 54954(a), at the following locations:

City of Colton City Hall 650 N. La Cadena Drive
City of Colton Website, www.coltonca.gov <http://www.coltonca.gov>

PROCEDURES FOR ADDRESSING CITY COUNCIL

For the Official Record, it is requested that you obtain a card from the Deputy City Clerk and complete it by noting a specific item number on the Agenda, if applicable, or you can identify the subject that you wish to address under the Public C omment portion of the Agenda. The City Council encourages public input on all City issues within the Rules of Decorum. Speakers will be limited to the time periods provided on the Agenda; provided, however, that the presiding officer shall have certain di scretion to extend or limit time as provided for in the City Council Manual of Procedure.

RULES OF DECORUM

To help conduct the business of the City Council in an orderly fashion, the City Council has adopted rules pertaining to decorum and order, as prov ided for in the City Council Manual of Procedure. The City Council will strictly enforce these rules in order to allow full expression of ideas and opinions by councilmembers, staff and the public. Generally, the City's rules of decorum prohibit comments or actions which willfully disrupt the meeting. All remarks and questions shall be addressed to the Council as a whole and not to any particular member. No individual Councilmember or member of the City staff shall be questioned without first obtaining permission from the Presiding Officer. The City Council asks that all persons - including councilmembers, staff and the public - act and speak respectfully.

NOTICE TO PUBLIC

Staff reports or other written documentation relating to each item referred to , on the Agenda, are available for public inspection at the following locations: Office of the City Clerk, 650 N. La Cadena Drive, Colton, CA; City of Colton Public Library, 656 9 th St., Colton, CA; or the City of Colton Internet Website, www.coltonca.gov. Any person having questions concerning any item on the Agenda may call the City Clerk at 370 -5191 to make inquiry concerning the nature of the item described on the Agenda. The City Clerk shall direct inquiries to the appropriate office.

All matters listed under the Consent Calendar are considered by the City Council to be routine and will all be enacted by one motion. There will be no separate discussion of these items prior to the time the City Council votes on t he motion, unless councilmembers, staff or the public request that specific items be discussed and/or removed for separate discussions or action.

7 In compliance with the American with Disabilities Act, if you need special assistance to participate in a City Meeting, please contact the City Clerk’s Office at 909-370-5001. Notification 48 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to this meeting.

LEGAL CHALLENGES

If you challenge in court any d iscussion or action taken concerning an item on this Agenda, you may be limited to raising only those issues you or someone else raised during the meeting or in written correspondence delivered to the City at or prior to the City's consideration of the ite m at the meeting.

MANUAL OF PROCEDURE

The City Council adopted its Manual of Procedure pursuant to Resolution No. R-41-18. Copies are available in the Office of the City Clerk.

ITEM NO. 1

STAFF REPORT

DATE: JUNE 18, 2024
TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
FROM: BILL SMITH, CITY MANAGER
PREPARED BY: BRIAN DICKINSON, PUBLIC WORKS DIRECTOR
SUBJECT: WAIVE FULL READING, READ BY TITLE ONLY AND PASS FIRST

READING OF AN ORDINANCE FOR THE ADOPTION OF WATER
AND WASTEWATER RATES, ORDINANCE NO O-06-24 & O-07-24.

RECOMMENDED ACTION

Staff recommends that the City Council take the following action:

Approve Ordinance O-06-24 establishing the Water Rates for FY 2024/2025 through 2028/2029, with an effective date of January 1, 2025. Approve Ordinance O-07-24 establishing Wastewater Rates for FY 2024/25 through 2028/2029 with an effective date of September 1, 2024.

BACKGROUND

The City of Colton Public Works and Utility Service s Department operates and maintains the water and wastewater systems. The Water system consists of approximately 158 miles of pipelines ranging in size from 2 inches to 30 inches in diameter, within four distinct pressure zones. Water supply consists of 100% groundwater produced from 8 active wells, 3 booster pump stations, and 5 storage reservoirs with 11.3 million gallons capacity, to meet max day and peak hour demands and fire flows. The Wastewater system consists of approximately 170 miles of gravity flow pipelines up to 30 inches diameter, of which approximately 126 miles are City of Colton, and approximately 41 miles are the City of Grand Terrace, which Colton operates and maintains under agreement. The City also operates and maintains 9 pumping li ft stations, a Wastewater Treatment Facility and also is a participant with the City of San Bernardino in the RIX facility.

The City and Colton Utility Authority’s (CUA) water rates pay for all operating expenses as well as fund, on a pay -as-you go basis, capital projects and debt services (annual principal + interest

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Staff Report to the Mayor and City Council
Adoption of Water and Wastewater Rates
June 18, 2024

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payments on outstanding debt and any future debt obligations). When the City and CUA issued bonds in the past to fund significant capital projects, the City and CUA guaranteed, and committed in these agreements, to establish and maintain water rates at levels sufficient to cover or pay for all debt service payments. The City and CUA are committed to replacing aging water infrastructure and securing an adequate water supply to meet current and future demands.

The study concluded that the current revenues from the City’s water rates are and will be insufficient to cover (1) Current and projected operations and maintenance costs for the water system - in particular energy, chemical supplies, wa ter treatment costs, and debt service obligations; and (2) The capital infrastructure improvements needed to maintain, repair and update the City’s aging water system. Accordingly, the study determined that rate increases are necessary to avoid operationa l deficits, further depletion of reserves, and an inability to address infrastructure and water quality improvements.

Water Rates were last adjusted in Fiscal Year 2015/16 through 2019/20.

Wastewater Rates were last adjusted in Fiscal Year 2014/15 through 2017/18.

ISSUES/ANALYSIS

On April 5, 2022, the City Council and CUA approved the Professional Services Agreement with NBS, Inc. in the amount of $88,160 for the Water and Wastewater Cost of Service Rate Studies.

NBS determined an updated Rate structur e that would meet the fiscal needs of the City and CUA. Key components of the rate structure to be proposed are: (1) conformity with current state laws, (2) fair and objective rates (3) establish a methodology to retire debt in a reasonable time frame (4) accountable and stable (5) easy to administer and explain to customers (6) meet revenue requirements of existing bond and any future bond sales.

At the January 16, 2024 City Council meeting , staff and the Consultant made a presentation on the Water and W astewater Rates study. Staff was directed to bring back for a Workshop, and include the full study, including Capital Improvement Projects list. Staff was also requested to provide a timeline of previous rate studies. Following are timelines of the Water and Wastewater rate studies and rate implementation:

Water

 September 13, 2013, City Council awarded contract to NBS to conduct a Water Rate Study. Study was delayed due to newly implemented State requirements for conservation.
 May 15, 2015, City Coun cil awarded amended contract to include water conservation analysis.

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Staff Report to the Mayor and City Council
Adoption of Water and Wastewater Rates
June 18, 2024

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 Water Rate Study was presented to Utilities Commission on July 13, 2015, at which it was requested that Water Rate Study and Financial Plan be brought back to meeting of August 10, 2015.
 At the August 10, 2015, Utilities Commission meeting, commissioners made additional recommendations and requested one last review and recommendations at the September 14, 2015 meeting. Commissioners made recommendation to proceed with Option 2 of the presented options.
 At the October 6, 2015, City Council meeting a Rate Study was presented and Public Hearing was set for December 1, 2015.
 The City Council conducted a Public Hearing at the April 5, 2016, City Council meeting.  At the April 19, 2016, City Coun cil meeting, Water rates were adopted effective July 1, 2016.
 Rates were implemented for FY 2016/17 through 2019/20.  At the April 5, 2022, City Council meeting the City Council approved a contract with NBS to Conduct the current Water and Wastewater Rate studies.

Wastewater

 December 17, 2013, City Council awarded contract to NBS to conduct Wastewater Rate Study.
 At the June 13, 2014, City Council meeting, City Council had a presentation of Wastewater rates with proposed Ordinance O-07-14. Rates were not Adopted.  At the July 1, 2014, City Council meeting Ordinance O-07-14 was approved, adopting new Wastewater rates effective July 1, 2014 through June 30, 2018.  At the April 5, 2022, City Council meeting, the City Council approved a contract wi th NBS to Conduct the current Water and Wastewater Rate studies.

At the February 26, 2024 Special City Council Workshop, staff and the Consultant made a presentation on the Water and Wastewater Rates study , incorporating comments from the January 16, 2024 City Council meeting and providing a Water and Wastewater Rate Study report, which included the full Capital Improvement Projects (CIP) list. Through discussion by City Council members, staff was directed to bring back additional options whereby, cash funding would be reduced and Debt financing would be increased.

At the April 15, 2024 , City Council Workshop, staff and the Consultant made a presentation incorporating the request for an additional option whereby Debt financing would be increased on the Water and Wastewater CIP projects. This was the third meeting and presentation discussing the Water & Wastewater Cost of Service Rate studies. Through discussion by the City Council, it was motioned and seconded to move forward with the Recommended Optio n 1 for both Water and Wastewater Rates and to set the Public Hearing for adoption of rates at the June 18, 2024 , regular City Council meeting.

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Staff Report to the Mayor and City Council
Adoption of Water and Wastewater Rates
June 18, 2024

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Staff Report to the Mayor and City Council
Adoption of Water and Wastewater Rates
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FISCAL IMPACTS

Rate increases will provide the following: 1) Increase d revenues to cover increasing op erations and maintenance costs ; and, 2) Coverage for bond financing to construct and properly invest in major Capital Improvement Projects necessary to operate and maintain the enterprises effectively and efficiently (i.e., reservoir construction, new well s, transmission and distribution water lines, water efficiency and water quality improvements). The adopted FY2024 -25 budget includes revenue estimates for implementation of the proposed rates.

ALTERNATIVES

Provide alternative direction to staff.

ATTACHMENT

1. Colton - Ordinance - O-06-24 Adopting Water Rate Increases - 2024-c1

2. Colton - Ordinance - O-07-24 Adopting Sewer Rate Increases - 2024-c1

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23152.06040\42313601.1

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ORDINANCE NO. O- 06 -24

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF COLTON,

CALIFORNIA ADOPTING RATE INCREASES TO CITY OF COLTON

WATER SERVICE FEES AND TAKING OTHER ACTIONS RELATED

THERETO

WHEREAS, the City of Colton (the “City”) operates a municipa l water system located within the City and certain unincorporated areas of the County; and

WHEREAS, the City undertook an evaluation of the capital infrastructure needs, water conservation program needs, and operations and maintenance costs of its water system; and

WHEREAS, b ased on th is evaluation, the City Council has determined t o increase the rates for its water service charges effective January 1, 2025; and

WHEREAS, future rate increases, beginning each July 1 thereafter, through and including July 1, 2028, will be necessary for all of the City’s water customers to enable the City to recover projected costs of providing water services and to ensure that it can safely treat and deliver water, maintain the operational and financial stability of the u tility, and avoid op erational deficits and depletion of reserves; and

WHEREAS, the rates for the water service fees are comprised of two components – a fixed service charge (the “Service Charge”) and a variable commodity charge based upon actual water usage (the “Commodity Charge”); and

WHEREAS, the Service Charge is a fixed charge established on the basis of the size of the meter serving the property and is calculated to recover a portion of the City’s fixed costs of operating, maintaining, and delive ring water. The Comm odity Charge is a consumption charge calculated on the basis of recovering the costs of providing water to property owners and customers. The Commodity Charge for all customer classes is based on a uniform rate per hundred cubic feet of water (“HCF”), or 748 gallons of water; and

WHEREAS, the City also imposes a fixed monthly fore meter service charge on certain commercial properties as a condition of extending or initiating water service by (1) the installation of a private fire suppression system, and (2) upon the request of the property owner or utility customer for the delivery of water to the property for the purpose of private fire service protection. The rates for the monthly commercial fire meter charge are established on the basis of the size of the meter serving the property and are calculated to recover the costs of providing water to such properties for private fire service protection; and

WHEREAS, the rates are calculated to proportionately allocate the costs of providin g water service amon g the customer classes and to customers within each class on a parcel basis, including the costs to recover the capital replacement, operations, maintenance, treatment, transmission, and delivery to each customer class; and

WHEREAS, i n accordance with the provisions of Article XIII D, section 6 of the California Constitution, the City mailed out notices of the proposed water rate increases and such

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Attachment: Colton - Ordinance - O-06-24 Adopting Water Rate Increases - 2024-c1 (4511 : Adoption of Water and Wastewater Rates) 23152.06040\42313601.1

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notices were provided to all property owners and tenants directly liable for water service fees within the City not less than 45 days prior to the public hearing on the proposed establishment of rates and fees as set forth herein; and

WHEREAS, the City Council conducted a public hearing on June 18, 2024, in order to receive oral and written testimony regarding this Ordinance and the proposed rate increases. Said public hearing date and time was not less than 45 days after the mailing of the notice; and

WHEREAS, at the conclusion of the public hearing, written protests against the proposed rate increases were not presented by a majority of the record owners of parcels upon which the water service fees are imposed and tenants directly responsible for the payment of water service fees; and

WHEREAS, it is deemed to be in the best interests of the City to adopt the rate increases due to the fiscal impacts referenced above.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF COLTON, CALIFORNIA DOES ORDAIN AS FOLLOWS:

Section 1. All of the foregoing Recitals are true and correct and the City Cou ncil so finds and determines. The Recitals set forth above are incorporated herein, are made findings and determinations of the City Council, and are made an operative part of this Ordinance.

Section 2. The City Council hereby finds and determines that written protests against the proposed rate increases were not presented by a majority of the record owners of parcels upon which water service fees are imposed and tenants directly responsible for the payment of water service fees. T he City Council there fore finds and determines that a majority protest does not exist and it is authorized to impose the rate increases as set forth herein.

Section 3. The City Council has evaluated and hereby approves the rates for water service fees in the amounts and on the effective dates set forth in the tables below.

MONTHLY FIXED SERVICE CHARGE ($/METER SIZE)

Meter Size
Rates and Effective Dates
1/1/25 7/1/25 7/1/26 7/1/27 7/1/28
5/8-inch meter $30.37 $33.41 $36.75 $38.95 $41.29
3/4-inch meter $30.37 $33.41 $36.75 $38.95 $41.29
1-inch meter $48.12 $52.93 $58.23 $61.72 $65.42

1.5-inch meter $92.49 $101.74 $111.92 $118.63 $125.75
2-inch meter $145.74 $160.31 $176.34 $186.93 $198.14
3-inch meter $287.73 $316.50 $348.15 $369.04 $391.19
4-inch meter $447.47 $492.22 $541.44 $573.93 $608.36
6-inch meter $891.19 $980.31 $1,078.35 $1,143.05 $1,211.63 8-inch meter $1,601.15 $1,761.27 $1,937.39 $2,053.64 $2,176.86 10-inch meter $2,133.62 $2,346.98 $2,581.68 $2,736.58 $2,900.78 Commercial Fire Meters – Fixed Service Charge
4-inch meter $89.53 $98.48 $108.33 $114.83 $121.72
6-inch meter $200.05 $220.06 $242.07 $256.59 $271.98

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Attachment: Colton - Ordinance - O-06-24 Adopting Water Rate Increases - 2024-c1 (4511 : Adoption of Water and Wastewater Rates) 23152.06040\42313601.1

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8-inch meter $347.42 $382.16 $420.38 $445.60 $472.33
10-inch meter $543.90 $598.29 $658.12 $697.61 $739.47

MONTHLY COMMODITY CHARGE ($/HCF)
All Customer Classes
Rates and Effective Dates
1/1/25 7/1/25 7/1/26 7/1/27 7/1/28
Rate per HCF of Water
Consumed $2.39 $2.63 $2.89 $3.06 $3.25

Section 4. The City Council finds that the revenues derived from the water service charges established by this Ordinance: (1) do not exceed the funds required to provide water service; (2) shall not be used for any other purpose than that for which the rates and charges are imposed; (3) do not exceed the proportional cost of the service attributable to each customer; (4) provide services which are immediately available to the customer; and (5) are not levied for general governmental purposes.

Section 5. The City Council further finds and determines that the administration, operation, maintenance and improvements of the City water system, which are to be funded by the increased water service rates set forth herein, are necessary to maintain service within the City’s existing service area and are not in excess of the reasonable costs of providing the water services.

Section 6. The City Manager is authorized and directed to take all actions necessary to implement the authorized rates as set forth herein.

Section 7. In accordance with the California Environmental Quality Act (CEQA) a nd the CEQA Guideli nes, City staff has determined that the increases in water service charges are not a project subject to CEQA pursuant to Section 15378(b)(4) because the charges constitute the creation of a funding mechanism or other governmental fiscal activity which does not involve any commitment to any specific project which may result in a potentially significant physical impact on the environment. In addition, even if the action is considered a “project” subject to CEQA, it is exempt under Section 15273 of the CEQA Gu idelines and Public Resources Code section 21080(b)(8) because the increased charges are for the purpose of meeting operational and maintenance expenses of the aforementioned services. The documents and materials that constitute the record of proceedings on which these findings have been based are located at 650 N La Cadena Drive, Colton, CA 92324. The custodian for these records is the City Clerk.

Section 8. All ordinances, resolutions, or administrative actions by the City Council, or parts thereof, that are inconsistent with any provision of this Ordinance are hereby superseded only to the extent of such inconsistency.

Section 9. Within 15 days after adoption of this Ordinance, a summary of the Ordinance shall be published with the names of those members of the City Council voting for and against this Ordinance and a certified copy of the full text of this Ordinance, along with the names of those City Council members voting for and against this Ordinance, shall be posted in the office of the City Clerk.

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Attachment: Colton - Ordinance - O-06-24 Adopting Water Rate Increases - 2024-c1 (4511 : Adoption of Water and Wastewater Rates) 23152.06040\42313601.1

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Section 10. If an y section, subsection, clause or phrase in this Ordinance is for any reason held invalid, the validity of the remainder of this Ordinance shall not be affected thereby.

The City Council hereby declares that it would have passed this O rdinance and each section, subsection, sentence, clause, or phrase thereof, irrespective of the fact that one or more sections, subsections, sentences, clauses or phrases or the application thereof be held invalid.

Section 11. This Ordinance shall take effect thirty (30) days after its final passage.

PASSED, APPROVED, AND ADOPTED this ___day of ________, 2024.

_____________________________
Frank J. Navarro, Mayor

ATTEST:

_________________________________
Stephanie Vargas, Deputy City Clerk

APPROVED AS TO FORM:

_____________________________________
Best Best & Krieger LLP
City Attorney

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Attachment: Colton - Ordinance - O-06-24 Adopting Water Rate Increases - 2024-c1 (4511 : Adoption of Water and Wastewater Rates) 23152.06040\42313605.1

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ORDINANCE NO. O-07-24

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF COLTON,

CALIFORNIA ADOPTING RATE INCREASES TO CITY OF COLTON

SEWER SERVICE FEES AND TAKING OTHER ACTIONS RELATED

THERETO

WHEREAS, the City of Colton (the “City”) operates a municipal sewer system and sewer treatment plant, and treats and disposes of the wastewater from properties located within the City and certain unincorporated areas of the County; and

WHEREAS, the City undertook an evaluation of the capital infrastructure needs, programs, and operations and maintenance costs of its sewer system; and

WHEREAS, b ased on th is evaluation, the City Council has determined t o increase the rates for its sewer service charges effective September 1, 2024; and

WHEREAS, future rate increases , beginning each July 1 thereafter, through and including July 1, 2028 , will be necessary for all of the City’s sewer customers to enable the City to recover projected costs of providing sewer services and to ensure that it can safely treat and dispose of sewage, maintain the operational and financial stability of the utility, and avoid operational deficits and depletion of reserves; and

WHEREAS, the rates for the sewer service fees are comprised of four customer classes ─ (1) residential (which includes single-family residences, mobile homes, and churches); (2) multi- family (which includes apartment units and condominiums); (3) schools; and (4) commercial and industrial; and

WHEREAS, the rates for the monthly sewer service fees for residential and mult i-family properties are determined on an equivalent dwelling unit (EDU) basis; and

WHEREAS, the rates for schools are determined on the basis of the estimated sewer flow generated at an identified school in terms of the number of students attending (in hundreds); and

WHEREAS, the rates for commercial and industrial customers are determined on the basis of the estimated sewer flow a property contributes to the sewer system (using monthly metered water use data) and the loads that a customer’s sewage disc harges put on the system (based on biochemical oxygen demand and total suspended solids); and

WHEREAS, the rates are calculated to proportionately allocate capital replacement, operations, maintenance, treatment, and disposal costs to each customer class; and

WHEREAS, in accordance with the provisions of Article XIII D, section 6 of the California Constitution, the City mailed out notices of the proposed sewer rate increases and such notices were provided to all property owners and tenants directly liab le for sewer service fees within the City not less than 45 days prior to the public hearing on the proposed establishment of rates and fees as set forth herein; and

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WHEREAS, at the conclusion of the public hearing, written protests ag ainst the proposed rate increases were not presented by a majority of the record owners of parcels upon which the sewer service fees are imposed and tenants directly responsible for the payment of sewer service fees; and

WHEREAS, it is deemed to be in t he best interests of the City to adopt the rate increases due to the fiscal impacts referenced above.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF COLTON, CALIFORNIA DOES ORDAIN AS FOLLOWS:

Section 1. All of the foregoing Recitals are true and correc t and the City Council so finds and determines. The Recitals set forth above are incorporated herein, are made findings and determinations of the City Council, and are made an operative part of this Ordinance.

Section 2. The City Council hereby finds a nd determines that written protests against the proposed rate increases were not presented by a majority of the record owners of parcels upon which sewer service fees are imposed and tenants directly responsible for the payment of sewer service fees. T he City Council therefore finds and determines that a majority protest does not exist and it is authorized to impose the rate increases as set forth herein.

Section 3. The City Council has evaluated and hereby approves the rates for sewer service fees in the amounts and on the effective dates set forth in the tables below.

RESIDENTIAL AND MULTI-FAMILY CUSTOMERS
MONTHLY SEWER RATES ($/EDU)

Customer Class
Rates and Effective Dates
7/1/24 7/1/25 7/1/26 7/1/27 7/1/28
Residential1 $45.38 $54.46 $59.90 $64.70 $69.87
Multi-Family2 $38.98 $46.78 $51.45 $55.57 $60.02

1. Includes single-family residences, homes/mobile homes, and churches.

2. Includes apartment units and condominiums.

SCHOOLS
MONTHLY SEWER RATES ($/100 Students)

Customer Class
Rates and Effective Dates
7/1/24 7/1/25 7/1/26 7/1/27 7/1/28
Schools $101.40 $121.68 $133.84 $144.55 $156.12

COMMERCIAL/INDUSTRIAL CUSTOMERS
MONTHLY SEWER RATES ($/HCF)1

Customer Class
Rates and Effective Dates
7/1/24 7/1/25 7/1/26 7/1/27 7/1/28
Commercial/Industrial

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Low Strength $2.36 $2.83 $3.11 $3.36 $3.63
Medium Strength $2.79 $3.34 $3.68 $3.97 $4.29
High Strength $6.09 $7.30 $8.04 $8.68 $9.37
Municipal Moved to Commercial (Med)

SIGNIFICANT COMMERCIAL/INDUSTRIAL CUSTOMERS
MONTHLY SEWER RATES ($/HCF)1
Customer Class Rates and Effective Dates
Special Commercial 7/1/24 7/1/25 7/1/26 7/1/27 7/1/28
Emerald Moved to Commercial (Med)
Special Med Consumption
A-Z Bus Sales Moved to Commercial (Low)
Inland Logistics, LLC Moved to Commercial (Low)
Nichols Egg Ranch Moved to Commercial (Low)
Rancho Coin Laundry Moved to Commercial (Low)
Wood Springs Hotel Moved to Commercial (Low)
Special High Consumption
Rise Baking Moved to Commercial (High)
Arrowhead Regional Med Moved to Commercial (Med)
C.R. England, Inc Moved to Commercial (High)

1. HCF means one hundred cubic feet.

Section 4. The City Council finds that the revenues derived from the sewer service charges established by thi s Ordinance: (1) do not exceed the funds required to provide sewer service; (2) shall not be used for any other purpose than that for which the rates and charges are imposed; (3) do not exceed the proportional cost of the service attributable to each custo mer; (4) provide services which are immediately available to the customer; and (5) are not levied for general governmental purposes.

Section 5. The City Council further finds and determines that the administration, operation, maintenance and improvements of the City sewer system, which are to be funded by the increased sewer service rates set forth herein, are necessary to maintain service within the City’s existing service area and are not in excess of the reasonable costs of providing the sewer services.

Section 6. The City Manager is authorized and directed to take all actions necessary to implement the authorized rates as set forth herein.

Section 7. In accordance with the California Environmental Quality Act (CEQA) a nd the CEQA Guidelines, City staff has determined that the increases in sewer service charges are not a project subject to CEQA pursuant to Section 15378(b)(4) because the charges constitute the creation of a funding mechanism or other governmental fiscal activity which does not involve any commitment to any specific project which may result in a potentially significant physical impact on the environment. In addition, even if the action is considered a “project” subject to CEQA, it is exempt under Section 15273 of the CEQA Guidelines and Public Resources Code section 21080(b)(8) because the increased charges are for the purpose of meeting operational and maintenance expenses of the aforementioned services. The documents and materials that

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constitute the record of proceedings on which these findings have been based are located at 650 N La Cadena Drive, Colton, CA 92324. The custodian for these records is the City Clerk.

Section 8. All ordinances, resolutions, or administrative actions by the City Council, or parts thereof, that are inconsis tent with any provision of this Ordinance are hereby superseded only to the extent of such inconsistency.

Section 10. If any section, subsection, clause or phrase in this Ordinance is for any reason held invalid, the validity of the remainder of this Ordinance shall not be affected thereby.

The City Council hereby declares that it would have passed this Ordinance and e ach section, subsection, sentence, clause, or phrase thereof, irrespective of the fact that one or more sections, subsections, sentences, clauses or phrases or the application thereof be held invalid.

Section 11. This Ordinance shall take effect thirty (30) days after its final passage.

PASSED, APPROVED, AND ADOPTED this ___day of ________, 2024.

_____________________________
Frank J. Navarro, Mayor

ATTEST:

_________________________________
Stephanie Vargas, Deputy City Clerk

APPROVED AS TO FORM:

_____________________________________
Best Best & Krieger LLP
City Attorney

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Attachment: Colton - Ordinance - O-07-24 Adopting Sewer Rate Increases - 2024-c1 [Revision 2] (4511 : Adoption of Water and Wastewater

ITEM NO. 2

STAFF REPORT

DATE: JUNE 18, 2024
TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
FROM: BILL SMITH, CITY MANAGER
PREPARED BY: HEIDI DURON, DEVELOPMENT SERVICES DIRECTOR SUBJECT: THIS IS THE TIME AND PLACE FIXED TO CONSIDER A PUBLIC

HEARING TO APPROVE AND ADOPT A RESOLUTION OF THE

CITY COUNCIL OF THE CITY OF COLTON TO APPROVE A

GENERAL PLAN AMENDMENT FOR A CULTURAL RESOURCES
ELEMENT UPDATE OF THE GENERAL PLAN. (FILE INDEX
NUMBER DAP-001-767), RESOLUTION NO. R-51-24.

RECOMMENDED ACTION

Staff recommends that the City Council take the following action:

Approve and adopt a Resolution Number R-51-24 of the City Council of the City of Colton to approve a General Plan Amendment for a Comprehensive Update to the Safety Element of the General Plan (File Index No. DAP-001-767).

BACKGROUND

To manage and preserve City cultural resources, Colton has a specialized General Plan chapter focused on cultural resources, called a “Cultural Resources Element.” This element supplements those requirements already included in Colton’s General Plan and zoning code and includes best practices and regulations governing the protection of local cultural resources codified in state and federal laws. The current Cultural Resources Element was adopted on September 5, 20 00, and the Final Administrative Draft for a Comprehensive Update to the General Plan Cultural Resources Element has been completed for the City Council to consider for approval.

Before reviewing the final draft, Staff completed the following public outre ach and meetings with the Planning Commission and General Public:

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Staff Report to the Mayor and City Council
Colton General Plan Cultural Resources Update 2024
June 18, 2024

Page 2 ends

 On Wednesday, December 7, 2022, at City’s Hutton Center, Planning held a Community Workshop from 6:00 pm to 8:00 pm.
 On Tuesday, February 14, 2023, a Community/Study Session was held with the PC, SWCA Environmental Consultants presented an abbreviated workshop to solicit input, feedback, and questions from the Planning Commission and public in attendance to get a broader overview and vision for the Cultural Resources Element Update.  A summary of each meeting is provided in Appendix A and B of the Final Administrative Draft.
 On Tuesday, March 12, 2024, another Community/Study Session was held with the presentation of the Draft Colton General Plan Cultural Resources Element Update. The basis of the meeting was to also provide copies of the draft document with Native American Tribes that provided comment on the Cultural Resources Element Update. The City received positive comments from each of the Tribes with no further comments or were provided educational material for staff to file related to historical information about Southern California Native Americans. The information received and filed by staff.  On May 28, 2024, at a noticed public hearing, the Planning Commission voted 3 -0-2 approving Planning Commission Resolution No. R -08-24 recommending to City Council approval of a General Plan Amendment for a Comprehensive Update to the Cultural Resources Element of the General Plan. (Attachment 1)

ISSUES/ANALYSIS

The City of Colton General Plan presently consists of the following elements:
 Land Use Element
 2021-2029 Housing Element
 Mobility Element
 Noise Element
 Open Space and Conservation Element
 Safety Element
 Model Air Quality Element
 Cultural Resources Element
A full comprehensive review and update of the General Plan is being prepared by staff .

However, the Development Services staff is focusing on two areas: 1. Completion of the Cultural Resources Element Update and 2. Completion of Housing El ement Update to obtain final HCD Certification.

Final Administrative Draft:

The Final Administrative Draft Colton General Plan Cultural Resources Element Update includes updates to the Ethnography of three Native American Groups: the Kizh, Serrano, and Cahuilla Tribes. Extensive ethnographic research was not conducted in the Colton Cultural

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Staff Report to the Mayor and City Council
Colton General Plan Cultural Resources Update 2024
June 18, 2024

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Resources Element Update, but some ethnographic information was recorded that became available through the review of documents and information provided by the commenting tribes.

The Final Administrative Draft has been proof-read and reviewed for final print. A hard copy of the document is provided for each of the Mayor and City Council Members. An electronic copy is also available on Colton’s Cultural Resources upd ate website, which includes the latest happenings and information on upcoming meetings - https://www.ci.colton.ca.us/1042/Cultural- Resources-Element-Update

Staff presents the Final Administrative Draft for final review and approval to the City Council.

Included in the attachments are the final responses to the three commenting Tribes: the Kizh Nation, Agua Caliente Band of Cahuilla Indians, and Yuhaaviatam of San Manuel Natio n (Attachments 2 through 4).

SWCA Review of Colton’s Historic Preservation Ordinance:

The final attachment is a memorandum from SWCA Consulting that includes a review of the City of Colton Historic Preservation Ordinance with recommendations for updates and additions (Attachment 5). Staff will be seeking grant funding to update the City’s Historic Preservation Ordinance to include many if not all the recommendations made by SWCA. A more detailed review of the ordinance will take place once staff finds funding to move forward with SWCA’s recommendations for updates and additions to the existing Colton Historic Preservation Ordinance.

Final Administrative Draft Colton General Plan Cultural Resources Element Update resolution and Cultural Resources Element is in Attachment 6 and Exhibit A.

FISCAL IMPACTS

None.

ALTERNATIVES

Provide staff alternative direction.

ATTACHMENT

1. Attachment 1_PC Reso No. R-08-24_GPA_Final

2. Attachment 2_2024_03_Updated_Ethnography_Kizh_Nation_section_edits

3. Attachment 3_2024_04_Comment_Matrix_AguaCaliente (002)

4. Attachment 4_2024_04_Comment_Matrix_YSMN_Section

5. Attachment 5_SWCA Historic Preservation Ordinance Review and Recommendations

6. Attachment 6_DAP-001-767_CC Reso R-51-24_Cultural Resources Element Update

7. Exhibit-A of CC Reso No. R-51-24_GPA Cultural Resources Element_Final

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RESOLUTION NO. R-08-24

A RESOLUTION OF THE OF THE CITY OF COLTO N PLANNING

COMMISSION RECOMMENDING TO THE CITY COUNCIL THE

APPROVAL OF A GENERAL PLAN AMENDME NT FOR A

COMPERHENSIVE UPDATE TO THE CULTURAL RESOURCES
ELEMENT OF THE GENERAL PLAN (FILE INDEX NO: DAP-001-767).

WHEREAS, local governments are authorized by Government Code section 65350 et seq. to prepare, adopt and amend general plans; and

WHEREAS, an update to the Cultural Resources Element of the General Plan has been initiated and prepared by the City of Colton; and

WHEREAS, the proposed Cultural Resources Element Update leaves the General Plan internally consistent; and

WHEREAS, the staff report accompanying this resolution is found to be true, adopted as Findings and incorporated in this resolution; and

WHEREAS, the Cultural Resources Element Update was reviewed, studied, and found to comply with the California Environmental Quality Act (“CEQA”), as more fully described below; and

WHEREAS, on December 7, 2022, the City held Community Meeting at the City’s Hutton Community Center with completion of a public notice to stakeholders at which time presentation about the project was made and public comment solicited and recorded.

WHEREAS, the Planning Commission held study sessions and community meetings on February 14, 2023 and March 12, 2024 with completion of public notice to stakeholders and Native American Tribes at which time all perso ns wishing to testify in connection with the application were heard and the application was fully examined.

WHEREAS, Pursuant to the California Environmental Quality Act (“CEQA”), the project is categorically exempt under Article 19, Section 1530 8 (Actions by Regulatory Agencies for Protection of the Environment), Class 8 of the State CEQA Guidelines. Projects characterized as an action by City of Colton for protection of the Environment and General Rule Exemption (or Common-Sense Exemption) of the CEQA Guidelines Section 15061(b)(3).

NOW, THEREFORE, BE IT RESOLVED BY THE PLANNING COMMISSION OF THE CITY OF COLTON:

SECTION 1. Based on the entire record before the Planning Commission of the City of Colton, all written and oral evidence presented has been considered and reviewed , and the Commission finds that the Cultural Resources Element Update is consistent with State l aw, will promote the public health, safety and welfare, and will leave the General Plan an integrated and

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Colton Planning Commission Resolution No. R-08-24
DAP-001-767 General Plan Amendment – Cultural Resources Element Update 2023/24 May 28, 2024 – Page 2 of 2

internally consistent statement of policies.

SECTION 2 . The Planning Commission of the City of Colton in accordance with the California Environmental Quality Act (“CEQA”), has found that the project will not have a significant impact on the environment and is categorically exempt under Article 19, Section 15308 (Actions by Regulatory Agencies for Protection of the Environment), Class 8 of the State CEQA Guidelines. Projects characterized as an action by City of Colton for protection of the Environment and General Rule Exemption (or Common -Sense Exemption) of the CEQA Guidelines Section 15061(b)(3).

SECTION 3. Based upon the findings set forth in Sections 1 and 2 of this Resolution, the Planning Commission hereby recommends approval to the City Council of the Cultural Resources Element Update, as presented to the Commission.

SECTION 4. The Secretary shall certify the adoption of this Resolution.

PASSED, APPROVED, AND ADOPTED this 28th day of May, 2024.

Richard Prieto
Planning Commission Chairperson

ATTEST:

Heidi Duron
Planning Commission Secretary

I hereby certify that the foregoing is a true copy of a Resolution adopted by the Planning Commission of the City of Colton at a meeting held on May 28, 2024, by the following vote of the Planning Commission:

AYES: Peters, Prieto, Escarcega
NOES: None
ABSENT: Grossich, Baden
ABSTAIN: None

___________________________
Heidi Duron
Planning Commission Secretary

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Attachment: Attachment 1_PC Reso No. R-08-24_GPA_Final (4556 : Colton General Plan Cultural Resources Update 2024) Ethnography
Colton was a well-inhabited area at the time of Spanish colonization and is considered to be is an ethnographic transition zone between three Native American groups: the Kizh, Serrano, and Cahuilla. All three groups are speakers of Takic languages, which are part of the Uto -Aztecan linguistic stock. The lifeways of all three groups were deeply affected by the California mission system and subsequent immigration and development of the area. Forced removal, disease and other factors greatly reduced the indigenous population in the region after contact with Europeans.

Extensive ethnographic research was not conducted for this Element; however, it is likely that some ethnohistoric sites exist within the City. For example, according to the memoirs of G. Hazen Shinn and as remembered by the Kizh, the Serrano told Shinn that prior to Spanish contact the Kizh Village of Homhoa existed at a spot between the present Colton Avenue and the Southern Pacific Railroad tracks east of the Santa Ana River on the lands where San Gabriel Mission fathers held mass outside under ramadas circa 1810-1830 (Shinn ND; Johnston 1962:16). Other areas sensitive for pre -contact resources such as the Santa Ana River and La Loma Hills may also have potential for the presence of ethnographic resources, as well as properties and neighborhoods associated with Native Americans living in the City post-contact. Additional study and consultation with descendant communities would identify those areas with the highest potential for resources associated with the indigenous and ethnographic groups described in this section.

Kizh- Gabrieleño -Tongva
The names “Kizh” (also spelled Kisianos or Kij), “Gabrieleño” (also spelled Gabrielino), and “Tongva” are used to designate aboriginal inhabitants and lineal descendants of the Southern Channel Islands, Los Angeles Basin, San Fernando Valley, San Gabrie l Valley, Western San Bernardino County, Western Riverside County, and Western Orange County people (Bean and Smith 1978; Johnston 1962; McCawley 1996; Strong 1929). The furthest ancestral territory of the Kizh/Gabrieleño/Tongva is documented through the oral history of the informants and tribal elders of the Serrano and the Cahuilla. They clearly state the areas into Redlands, Yucaipa and Crafton are their ancestral lands (Strong 1929). Once the Spanish colonized the Kizh/Tongva Ancestral Territory, the Spanish began using the term “Gabrieleño” as a reference to the California Native Americans who were associated with Mission San Gabriel, which many times included members of surrounding groups such as the Kitanemuk, Serrano, and Cahuilla.

Some ethnographers have stated that the Gabrieleño people did not have an overall name for their cultural group; however, others indicate they did have a clear name for themselves (Dakin 1978:22; Strong 1929: 7 -8, 112; McCawley 1952:10). According to one informant, people living near San Gabriel identified themselves as Kichireños, which is a blend of indigenous self -identification (Kizh) and Spanish suffix (eño, meaning “belonging to ”) (Johnston 1962:15; Bean and Smith 1978:548). In the local tongue, indigenous people would also have identified themselves as belonging to a specific community with locational suffixes, much as someone from New York is called a New

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Attachment: Attachment 2_2024_03_Updated_Ethnography_Kizh_Nation_section_edits (4556 : Colton General Plan Cultural Resources Update Yorker (Johnston 1962:10). Today the aboriginal and lineal descendants in this territory of Southern California use the terms Kizh Nation -Gabrieleño Band of Mission Indians, Gabrielino-Tongva Indians of California Tribal Council, the Gabrielino -Tongva Indian Tribe, the Gabrielino/Tongva Nation, and the Gabrielino/Tongva San Gabriel Band of Mission Indians to designate their tribal groups.

Prior to Spanish contact, the basis of Kizh/Gabrieleño/Tongva religious life consisted of the Chinigchinich religious belief system. The Chinigchinich was born in the village of Povuungna and the religion spread out to the surrounding tribes. The Chinigchinich was known by three distinct names: Saor, Quaguar and Tobet with each one possessing a particular significance, diversity and difference in time. The foundation of the Chinigchinich religion taught the laws, institutions and songs of the “toloache cult” and the annual mourning ceremony. Elaborate mourning ceremonies included a variety of offerings that varied with gender and status, including seeds, stone grinding tools, crystals, otter skins, baskets, wood tools, bone awls, strings of Olivella shell disk beads, ocean pendants and ornaments, projectile points and knives (Dakin 1978; Johnston 1962:52–54; McCawley 1996:155 –165). Many of these goods were also luxury items that signaled wealth and prosperity to surrounding inland tribes and also functioned as social and physical currency.

Stretching from the coastal islands to the interior mountains, the Kizh/Gabrieleño/Tongva inhabited a variety of environmental and biotic zones rich in natural resources that allowed them to support a large territory with numerous villages and inhabitants. They were considered one of the most wealthywealthiest tribal groups in Southern California at time of Spanish contact (Bean and Smith 1987). The Kizh/Gabrieleño/Tongva used a variety of tools and implements in their everyday practices as complex hunter-gatherers, including the bow and arrow, traps, nets, blinds, throwing sticks and slings, spears, harpoons, and hooks. Food was processed with a variety of t ools such as mortars and pestles, manos and metates, strainers, leaching baskets, bowls, knives, bone saws. Stone tools such as hammer stones, anvils, and spear points were made of obsidian, chert, quarts and various other cryptocrystalline, while raw materials like juncas, deergrass and asphaltum were used to create cooking baskets, water bottles, burden baskets, and many more ingenious tools. Some materials from Pimungna (Santa Catalina Island) were brought to the mainland and traded extensively throughout the region. The Pimungna steatite was a favorite Kizh traded good used as cooking bowls and flat comales (griddle-like surfaces).

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Matrix for Comments from Agua Caliente Band of Cahuilla Indians

Location Highlighted Text Comment Response
Historical Resources, Goal #1,
Policy 1.A, Action Item 1.4 (page
52)
Add to ordinance provisions
requiring Historic Resource
Evaluations for of-age properties
slated for demolition
I’m surprised this was not already
a requirement, glad to see this
being implemented.

Thank you for the comment; this
Action Item is a recommended
action—the HP Ordinance still
would need to be updated to
incorporate this provision.

Historical Resources, Goal #1,
Policy 1.A, Action Item 1.5 (page
52)
Create Inventory of Historical
Resources and integrate in
planning process
What role will this play in the
planning process (i.e. how will
this information be used)?
Depending on updates to the HP
Ordinance, the Inventory of
Historical Resources would serve
to flag potential demolition or
major alterations of properties
that are qualifying historical
resources pursuant to CEQA.

Integration of such an Inventory
into the planning process can
take many forms at the level of
the zoning code and
administrative policy. Typically,
an Inventory that’s actively
managed and maintained by a
City flags eligible (but not yet
designated) historical resources
and might subject those
properties to additional layers of
project review through the
entitlements process (such as,
through the issuance of a
Certificate of Appropriateness for
certain project types).

Historical Resources, Goal #3,
Policy 3.A (page 56)
Encourage retention of historical
resources
This whole policy sounds great! Thank you for the comment and the feedback—we appreciate the
positive response.

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Attachment: Attachment 3_2024_04_Comment_Matrix_AguaCaliente (002) (4556 : Colton General Plan

Historical Resources, Goal #3,
Policy 3.A, Action Item 3.19 (page
59)
Commission a survey of City-
owned properties to identify
historical resources (See also
Action Item 1.3)

Will the same firm be hired to
conduct the surveys city wide or
will multiple companies be
contracted? And how will surveys
be prioritized?
Thank you for the comment. The
same company would not
necessarily be hired—that would
depend on the proposal and
selection process,
competitiveness of bids, etc.

Establishing this Action Item does
not guarantee this will happen,
nor does it establish the specific
guidelines for how such a survey
would be completed.

Historical Resources, Goal #3,
Policy 3.G, Action Item 3.25 (page
60)
Design training modules for staff
and Planning Commission on
Historic Preservation Ordinance,
triggers for evaluation and
project review, and CEQA’s
provisions for historical resources

Great idea! Thank you for the comment.

Archaeological Resources, Goal
#1, Policy 1.A, Action Item 1.3
(page 65)
Commission the preparation of
archaeological sensitivity maps
(prehistoric and historic)
indicating the likelihood or the
discovery of archaeological
resources
Would this be for internal
personnel use only or accessible
to outside entities?
These would be for internal use,
limited to authorized users and
stored on secure servers to
maintain confidentiality.

Archaeological Resources, Goal
#1, Policy 1.A, Action Item 1.3
(page 65)
Survey City-owned, undeveloped
public space and/or sensitive
locations identified in the
literature for the
presence/absence of
archaeological resources
Same question from above, one
firm or multiple?
Thank you for the comment. The
same company would not
necessarily be hired—that would
depend on the proposal and
selection process,
competitiveness of bids, etc.

Establishing this Action Item does
not guarantee this will happen,
nor does it establish the specific
guidelines for how such a survey

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would be completed.

Archaeological Resources, Goal
#2, Policy 2.A, Action Item 2.2
(page 67)
Take steps to ensure
confidentiality of sensitive
cultural resource information
through restricted access, where
appropriate
What is the current protocol for
who can and how this sensitive
information is accessed?

Archaeological Resources, Goal
#2, Policy 2.B, Action Item 2.4
(page 67)
Maintain a list of local/regional
repositories where scholars and
the general public can access
information about Colton’s
archaeological resources
This list should be approved in
collaboration with consulting
Tribes.

Agreed. The location and nature
of Tribal Cultural Resources and
Native American sites will be
kept confidential in accordance
with state and federal regulations
and in consultation with
interested tribal groups.

Archaeological Resources, Goal
#2, Policy 2.B, Action Item 2.4
(page 67)
Engage local/regional high
schools, community colleges,
universities, libraries, museums
and other community
organizations in research projects
and information sharing where
appropriate
Tribal communities should have a
say in what can be researched
and by who.

The City will engage with local
Tribal communities where pre-
contact or Tribal Cultural
Resources are being considered
for research and information
sharing.

Archaeological Resources, Goal
#3 Policy 3.A, Action Item 3.3
(page 68)
Develop standard mitigation
measures for projects in
archaeologically sensitive areas
as part of the administrative
procedures and/or Historic
Preservation Ordinance
Treatment plans &
Archaeological and Tribal
Monitors should be included in
standard mm for sensitive areas.

Thank you for the
recommendation. The City will
consider this as they update the
historic preservation ordinance
and other policy documents.

Archaeological Resources, Goal
#4 Policy 4.B, Action Item 4.3
(page 70)
Encourage curation, exhibition,
and interpretation of cultural
resources recovered in the City
for public education and
awareness
If these are Tribal Cultural
Resources then reburial should
always be the first option, then
repatriation, then consent to
exhibit from consulting tribes.

Thank you for the
recommendation. The City will
consider this as they update the
historic preservation ordinance
and other policy documents.

Action item rephrased to clarify
that Tribal Cultural Resources
may require alternative
Commented [SC1]: Mario: Can you please comment
on how the City currently stores and provides access to confidential cultural resource information (e.g. technical studies, CHRIS records search results, etc.)

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consideration:

Encourage curation, exhibition,
and interpretation of cultural
resources recovered in the City
for public education and
awareness. Consult with tribal
communities regarding the
disposition of archaeological
resources with tribal affiliation.

Archaeological Resources, Goal
#4 Policy 4.B, Action Item 4.4
(page 70)
Partner with local schools,
colleges, historical societies,
libraries and other stakeholders
to develop educational materials
about Colton’s cultural heritage
and archaeological resources
Tribal communities should also
be partnered with.

Noted. Action Item revised to
include reference to Tribal
communities:

Partner with local schools,
colleges, historical societies,
libraries, Tribal communities and
other stakeholders to develop
educational materials about
Colton’s cultural heritage and
archaeological resources
Archaeological Resources, Goal
#5 Policy 5.A, Action Item 5.1
(page 71)
Develop a plan for celebrating
Archaeology Month each
October, with content published
on the City Website and social
media channels
Just out of curiosity, why
October?
Archaeology Month is a national
program to promote the
preservation of the country’s
heritage and is celebrated in
different months across the
United States. California
Archaeology Month is observed
in October to align with
California’s K-12 curriculum on
Native American and California
history.

Tribal Cultural Resources, Goal #1
Policy 1.A, Action Item 1.1 (page
Supplement and strengthen AB52
consultation by proactively
SB18 consultation should also be
encouraged as Tribal
Noted. Action Item revised to
include reference to SB18:

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73) maintaining up-to-date contact
information for tribal
representatives for consultation,
including for non-federally
recognized tribal entities and
individuals
communities may provide insight
into the effects of land use.

Supplement and strengthen AB52
and SB18 consultation by
proactively maintaining up-to-
date contact information for
tribal representatives for
consultation, including for non-
federally recognized tribal
entities and individuals
Tribal Cultural Resources, Goal #2
Policy 2.A, Action Item 2.4 (page
74)
Use oral history to capture the
experiences of the local Native
American community
How will these experiences be
“captured” (e.g. recordings,
writings, exhibits, etc.).

Methods for gathering oral
histories vary and could include
recordings, transcripts or other
methods deemed appropriate by
the parties involved. Specific
methods and dissemination of
the information would be
considered on a case-by-case
basis.

Tribal Cultural Resources, Goal #3
Policy 3.B, Action Item 3.4 (page
76)
Encourage and facilitate the
creation of easements or deed
restrictions for owners of
properties containing Tribal
Cultural Resources
This would be a big WIN! Thank you for the comment and
the feedback—we appreciate the
positive response.

Tribal Cultural Resources, Goal #3
Policy 3.B, Action Item 3.5 (page
76)
Train City staff and decision-
makers in City’s Tribal Cultural
Resources management program
and policies
Collaborate with Tribal
communities on a training guide
Thank you for the
recommendation. The City will
consider this as they update
training materials and policy
documents.

Tribal Cultural Resources, Goal #3
Policy 3.C, Action Item 3.7 (page
76)
Establish procedures to provide
access to specific identified Tribal
Cultural Resources within the City
for local Native American groups
Amazing. Thank you for the comment.

Please note that the feasibility of
implementing this Action Item
may vary depending on a variety
of factors such as property
ownership, etc.

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Tribal Cultural Resources, Goal #4
Policy 4.A (page 77)
Build public understanding of and
support for Colton’s Tribal
Cultural Resource policies and
code requirements
I’m concerned with how much
the public needs to be involved in
this section. Many tribes believe
traditional knowledge and
resources should not be shared
with everyone.

The intention of this policy is to
build public support for the
concept of Tribal Cultural
Resources and their preservation,
not to publicly share specific
tribal knowledge or resource
information. The associated
Action Items are geared towards
building awareness that policies
and procedures for protecting
Tribal Cultural Resources exist.

The City respects the desire for
privacy and confidentiality
regarding the details of Tribal
Cultural resources.

Tribal Cultural Resources, Goal #4
Policy 4.A, Action Item 4.3 (page
77)
Create and share public
documentation and management
protocols for discovery of Tribal
Cultural Resources and the
treatment, preservation, and
repatriation of such resources
Educating the public on
management protocols is a great
idea though.

Thank you for the comment and
the feedback—we appreciate the
positive response.

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Matrix for Comments from Yuhaaviatam of San Manuel Nation

Location Highlighted Text Comment Recommended Response
Ethnography (page 20) Vanyumé Vanyumé are Desert Serrano, inhabiting the high desert area
between the San Gabriel and San
Bernardino Mountains to the
Tehachapi and Tiefort
Mountains, and it is unlikely that
they traveled into the San
Bernardino Valley.

Serrano is sufficient.

Change accepted
Ethnography (page 21) One lineage tended to be more
dominant than the other.

This is too reductionist for the
complex social structure of the
Serrano people.

Replaced with:

Both lineages served important
functions during religious
ceremonies and in day-to-day
activities
Change accepted
Ethnography (page 21) Inserted new text N/A Change accepted with minor modifications. Some of the
inserted text has been moved to
the introduction to the
ethnographic section to be
consistent with the narrative
regarding other ethnographic
locations within the City. See
suggested edits.

Archaeological Resources, Goal
#2, Policy 2.A, Action Item 2.1
(page 67)
Amend Historic Preservation
Ordinance to establish consistent
standards and triggers for
What is the current Historic
Preservation Ordinance of
Colton? Or is this to update the
The City’s current Historic
Preservation Ordinance is
available at the following link

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archaeological resource
documentation

policy to current federal and
state standards?
and/or upon request: Chapter

15.40 - HISTORIC PRESERVATION
| Code of Ordinances | Colton,
CA | Municode Library.

This Action Item is intended to
update the policy to provide
more clarity regarding standards
for documentation of
archaeological resources in
Colton. Standards will be tied to
current federal and state
guidance and regulations.

Would these repositories exclude
sensitive Tribal Cultural
Resources and Native American
sites?
Yes, the location and nature of
Tribal Cultural Resources and
Native American sites will be
kept confidential in accordance
with state and federal regulations
and in consultation with
interested tribal groups.

Archaeological Resources, Goal
#3, Policy 3.B, Action Item 3.4
(page 69)
Require that a qualified
archaeologist is retained in the
earliest stages of project planning to
review development plans
involving identified archaeological
resources and/or within areas
identified as having high sensitivity
for archaeological resources

This should state a Secretary of
the Interior (SOI) qualified
archaeologist with at least 3
years of regional experience in
archaeology.

Additional definitions regarding
qualifications and other
requirements will be outlined in
the City’s historic preservation
ordinance and other policy
documents.

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Revised Ethnography Section:

Ethnography
Colton was a well-inhabited area at the time of Spanish colonization and is an ethnographic transition zone between three Native American groups: the Kizh, Serrano, and Cahuilla. All three groups are speakers of Takic languages, which are part of the Uto-Aztecan linguistic stock. The lifeways of all three groups were deeply affected by the California mission system and subsequent immigration and development of the area. Forced removal, disease and other factors greatly reduced the indigenous population in the region after contact with Europeans.

Extensive ethnographic research was not conducted for this Element; however, it is likely that some ethnohistoric sites exist within the City. For example, according to the memoirs of G. Hazen Shinn and as remembered by the Kizh, the Serrano told Shinn that prior to Spanish contact the Kizh Village of Homhoa existed at a spot between the present Colton Avenue and the Southern Pacific Railroad tracks east of the Santa Ana River on the lands where San Gabriel Mission fathers held mass outside under ramadas circa 1810-1830 (Shinn ND; Johnston 1962:16). The Yuhaaviatam clan of Serrano people— known as the Yuhaaviatam of San Manuel Nation today—fled into the San Bernardino Valley to escape deadly conflict with a San Bernardino militia. Led by their leader, Santos Manuel, the Yuhaaviatam clan ventured through the valley along Warm Creek before settling near the confluence of Warm Creek and the Santa Ana River, near the borders of the City of San Bernardino and the City of Colton.

Other areas sensitive for pre-contact resources such as La Loma Hills may also have potential for the presence of ethnographic resources, as well as properties and neighborhoods associated with Native Americans living in the City post-contact. Additional study and consultation with descendant communities would identify those areas with the highest potential for resources associated with the indigenous and ethnographic groups described in this section.

Serrano (Vanyume)
The Serrano occupied an area of the San Bernardino Mountains between approximately 1,500–11,000 feet above mean sea level. Their territory extended west into the Cajon Pass, east to Twentynine Palms, north past Victorville, and south to the Yucaipa Valley. Year-round habitation tended to be on the desert floor, the base of the mountains, and in the foothills; all habitation areas required year-round water sources (Kroeber 1908; Bean and Smith 1978). Most Serrano lived in small villages near water sources (Bean and Smith 1978:571). Many of the villages had a ceremonial house used as a religious center and the residence of the lineage leaders. A village was usually composed of at least two lineages, referred to as a lineage set. Both lineages served important functions during religious ceremonies and in day-to-day activities. One lineage tended to be more dominant than the other. The Serrano were loosely organized along patrilineal lines and associated themselves with one of two moieties or “clans”—the Wahiyam (coyote) or the Tukum (wildcat) moiety.

The subsistence economy of the Serrano was one of hunting and collecting plant goods, supplemented with occasional fishing. Trade was an important aspect of the Serrano economy, and the tribe’s territory was a trade nexus between inland and coastal tribes. Those living in the lower elevation, desert floor

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villages traded foodstuffs with people living in the foothill villages who had access to different resources.

In addition to intervillage trade, ritualized communal food procurement events, such as rabbit and deer hunts and nut- gathering events, integrated the economy and helped distribute resources available in different ecozones. Ethnohistory also suggests the Serrano played a role in the trade of horses from the southwest to the California coast.

Today the Serrano people are actively maintaining their cultural heritage and legacy through different tribal organizations, including the Yuhaaviatam of San Manuel Nation (formerly the San Manuel Band of Mission Indians).

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MEMORANDUM
To: Mario Suarez, AICP, Planning Manager
Heidi Duron, AICP, Development Services Director
City of Colton, Development Services Department, Planning Division From: Debi Howell-Ardila, MHP, Senior Architectural Historian and Preservation Planner Date: April 18, 2024
Re: City of Colton Historic Preservation Ordinance, Recommendations for Updates and Additions
This memorandum was prepared by SWCA Environmental Consultants (SWCA) for the City of Colton Development Services Department, Planning Division (City) to provide recommendations for potential updates and additions to the City’s Historic Preservation Ordinance. These recommendations represent a starting point for the City as it considers possible refinements and updates to the Historic Preservation Ordinance. As with all chapters of the City’s zoning code, no one set of provisions fits for all cities; it is important that ordinances be tailored to the needs and existing conditions of the City. Therefore, these recommendations represent a general guide and point-of-departure (rather than an exhaustive list) for an updated ordinance.

Serving as author of this memorandum was SWCA Senior Architectural Historian and Preservation Planner Debi Howell-Ardila, MHP. Ms. Howell-Ardila draws on 18 years of experience in historic preservation policy and compliance; during this time, she has developed a specialized practice in ordinance preparation and agency-side assistance in historic preservation planning and environmental compliance. Ms. Howell-Ardila served as a primary author for the historic resource provisions of the City of Colton Cultural Resources Element, which is in review as of April 2024. She also served as the primary author for the historic resource provisions of the City of San Gabriel Historic Preservation and Cultural Resources Ordinance, which won preservation awards from the California Preservation Foundation and Los Angeles Conservancy in 2018.

The City of San Gabriel Historic Preservation and Cultural Resources Ordinance follows this memo as Appendix A, as an example of an ordinance with user-friendly language as well as provisions for the identification, management, and protection of historical, archaeological, and Tribal Cultural Resources.

Rounding out this memo, Appendix B provides the California Office of Historic Preservation, Department of Parks & Recreation, Technical Assistance Series 14, “Drafting Effective Historic Preservation Ordinances.”
Colton’s present Historic Preservation Ordinance consists of three separate phases of code adoption and amendment. In 1987, the City adopted Ordinance No. 0-11-87, the “Historic and Scenic Preservation Ordinance.” This iteration of the ordinance established the standards and regulations for the identification, designation, and protection of historic and scenic properties. This law gave the City the ability to set its

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2 own tailor-made standards for which properties to designate, and how. Through this ordinance, the Historic and Scenic Preservation Commission was also established. In 1996 and 1999, the code was again updated, through Ordinance No. 0-11-96, which expanded on standards and regulations for the designation and preservation of historic, scenic, and cultural properties, and through Ordinance No. 0- 02-99, which created a provision for the identification and designation of historic districts in the City. The 1996 amendment also signaled a name change for the code chapter, which became the “Historic Preservation Ordinance of the City of Colton.”
SWCA has reviewed these code provisions in order to identify potential gaps and areas for expansion. As noted above, the recommendations presented in this memo are intended as options for the City to consider, rather than prescriptive, one-size-fits-all measures.

General Recommendations for Changes and Additions

1. Consider renaming the ordinance to the “Historic Preservation and Cultural Resources Ordinance” to capture and include archaeological and Tribal Cultural Resources

2. Combine all ordinances related to historic preservation in one unified ordinance, including the Mills Act program, application timing and schedule, steps for review and approvals

3. Update the ordinance to bring it into closer alignment with current best practice in terms of both terminology and approach; some terminology throughout the ordinance, for example, while not wholly incorrect, departs from common usage; in addition, certain sections would benefit from additional nuance or detail, in particular as regards building a sound nexus with the California Environmental Quality Act (CEQA)

4. In the Demolition Permits section, include a requirement for a Historical Resources Evaluation for properties 45 years of age and older slated for demolition that (1) are not presently designated, (2) are not included in the City’s list of potential historical resources, and (3) have not been subject to a due-diligence Historical Resources Evaluation meeting the requirements of the ordinance in the last five years
a. Include specific procedures for the content of Historical Resources Evaluations, the professional qualifications for preparers, the review process for evaluations, and the timing and waiting periods in the processing of demolition permits b. Consider adding a required waiting period for major alterations and/or demolition to known historical resources while a landmark designation is under review and consideration

5. Expand ordinance’s scope to include the management, identification, and protection of archaeological and Tribal Cultural Resources (see City of San Gabriel Historic Preservation and Cultural Resources Ordinance for one example)
a. Once the Colton Cultural Resources Element has been approved, add all items related to ordinance updates to the list for future consideration

6. Consider adding a provision for the identification of “Preservation Overlay Zones” for those areas that do not qualify as historic districts but that retain a shared construction history and qualify for special consideration in local planning (California Historical Resources Status Code 6L)

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Attachment: Attachment 5_SWCA Historic Preservation Ordinance Review and Recommendations (4556 : Colton General Plan Cultural City of Colton Historic Preservation Ordinance, Recommendations for Updates and Additions 3 7. Add an “Enabling Authority” section between Sections 15.40.010 (Title) and 15.40.020 (Purpose and intent) and a “Severability Clause” at the conclusion; see Appendix B for more information on the need and contents of both sections
Purpose and Intent

1. Begin this section with a one- to two-paragraph summary of Colton’s rich history and cultural heritage (information can be drawn from the Cultural Resources Element), setting the stage for the origins and significance of the ordinance for the City

2. Include more precise “intentions” in this section, which at present mostly includes a statement of existing conditions and the need for the ordinance
a. Such intentions might include the goal to “preserve, maintain, and safeguard” cultural resources; “foster awareness and stewardship” of cultural resources; “encourage public knowledge and appreciation” of cultural resources; integrate the conservation of cultural resources in the public and private development process; implement the Goals, Policies, and Action Items of the Cultural Resources Element; facilitate the City’s compliance with CEQA; “encourage the use” of historic preservation incentives; etc.

3. Include a reference to the 2024 Colton General Plan Cultural Resources Element and its role in the City’s overall cultural resources management program

4. Consider mentioning the City’s status as a Certified Local Government (CLG) with the State Office of Historic Preservation and state that the City intends to continue meeting CLG requirements and participating in the CLG program

5. Consider forming a stand-alone Historic Preservation and Cultural Resources Commission consisting of professionals and/or parties with a demonstrated interest or background in architectural history; archaeology; Tribal Cultural Resources; social history; the history of Colton a. Having a stand-alone Historic Preservation Commission is the preference of the State Office of Historic Preservation for CLGs
Definitions

1. “Alteration”: it is recommended that this definition be updated with a detailed, tiered system for project reviews; in this change, additional detail would be provided for “Minor Alterations” (which might include interior remodels, like-for-like changes or small additions on rear elevations, paint, re-roofing not affecting a character-defining features, and/or landscaping not involving character-defining features) and “Major Alterations” (which would include the removal, replacement, or obstruction of character-defining features or a partial demolition of a substantial portion of the property), as well as “Ordinary Maintenance and Repair” a. The ordinance does include “minor” and “major” alterations, but this needs more specific project-level detail to facilitate its consistent application

2. “Archaeology”: update the definition and include “Archaeological Resource,” “Tribal Cultural Resource,” “Historical Resource,” and explain the umbrella for all three, “Cultural Resources”

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4 3. “Certificate of Appropriateness”: refine the definitions and distinctions between Minor and Major Alterations; define which projects can go through Administrative Review (rather than Commission Review) in more detail

4. Add definition for California Environmental Quality Act

5. Add definition for California Historical Building Code (Part 8, Title 24 of the State Building Standards Code)

6. Add definition for “Character-Defining Feature”

7. Add definition for “Conservation Easement”

8. Add definition for “Contributing Resource” / “Contributor” and “Noncontributing Resource / Noncontributor” to clarify the status of properties within eligible and designated historic districts

9. Add definition for “Cultural Landscape” and include it among those built environment features that could qualify as eligible landmarks or historical resources

10. “Historic District”: amend the requirement that a historic district must possess all seven aspects of integrity (this is a prohibitively high bar and typically reserved for National Register of Historic Places historic districts)
a. Typically, a historic district can possess “several, if not all” of the seven aspects of integrity and still be eligible

11. Add definition for “Historic Integrity” (and explain seven aspects of integrity)

12. Add CEQA’s term of art, “Historical Resource” to the definitions (i.e., resources eligible for designation or already designated at the local, state, or federal level, either individually or as a contributor to a historic district)

13. Add definition for “Historical Resource Evaluation” and “Historic Resource Survey”

14. Add definition for “Mills Act Historic Property Contract”

15. Section 15.40.060(D)(1), "Potential Historic Resource": update this definition to omit the following text in bold:
“‘Potential Historic Resource’ is any Improvement, natural feature, Structure, place, site, Fence, Gate, Wall, work of art or other object constituting a physical feature of Real Property that is fifty Years old or older that May have significant historic, architectural, or cultural value, but which has not been Designated a Historic Resource pursuant to this chapter either because it is in the process of being Designated or it otherwise qualifies for Designation except that the Property Owner(s) do not consent to its formal Designation.”
This text should be omitted because a “potential historic resource” includes resources that have been found eligible through an evaluation or survey, with no need for consultation or approval by property owners; distinguishing more clearly between the City’s “Register” (of designated properties) and “Inventory” (of properties eligible for designation but not yet formally designated) might help clarify this point and the need for this update.

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5 16. Add definitions for “Qualified Professionals” (including, for example, for Archaeologist, Architectural Historian, Historian, Historic Architect, Native American Monitor, and Structural Engineer)

17. Add Secretary’s Standards for the Treatment of Historic Properties (Secretary’s Standards) to definitions and ensure that compliance with the Secretary’s Standards is used as one of the required thresholds for issuance of Certificates of Appropriateness

15.40.050 Commission—Delegated Powers and duties.

1. Consider adding language regarding the preferred qualifications/background for at least 2 of the Planning Commission members in history, architectural history, Tribal Cultural Heritage, cultural resources, and/or heritage conservation

2. Add a cross-reference to the City ordinance that established the Planning Commission in order to clarify the length of commissioner terms and procedures and qualifications for appointing Planning Commissioners responsible for implementing the Historic Preservation Ordinance

3. Add that the Commission in concert with the City staff will provide annual updates to the State Office of Historic Preservation to report on preservation activities and trainings through the year, to meet the CLG requirement for annual reports

4. Add that the Commission will also, in concert with the City, identify potential CLG grant opportunities each year and participate in the preparation of CLG grant applications, to secure state funding for important preservation projects and studies

15.40.060 Nomination and Designation of Historic Resources and Historic Districts

1. Add a provision to Section 15.40.060(D)(1) that permits any citizen to submit a landmark designation (rather than just property owners and Commission or City Council)

2. Amend Section 15.40.060(C) to streamline Criteria for Designation to mirror those of the California Register of Historical Resources (CRHR) and NRHP

3. Add a provision requiring compliance with the Secretary of the Interior’s Standards for the Treatment of Historic Properties for issuance of a Certificate of Appropriateness

4. In any mention of the “survey” process or determinations of eligibility, define what evidence/sections will be required for due-diligence Historical Resources Evaluations a. In addition, define what the process for evaluation reviews, as well as qualifications standards for preparers of the reports (i.e., meeting Secretary of the Interior’s Professional Qualifications Standards in either history or architectural history)

5. In any mention of the survey or designation process for historic districts, include more detail on what should be documented and included; include, for example, a boundary of the historic district, along with a list of “contributors” (i.e., eligible properties) and “noncontributors” (i.e., ineligible properties) within the district boundaries

6. Add separate, more tailored sections on the criteria considerations for landmarks versus historic districts to help City staff and decisionmakers in determinations regarding historic districts (i.e.,

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6 state that historic districts are an identifiable, distinct entity with an obvious boundary and a cohesive collection of related properties)

7. Provide the specific materials required in landmark applications, along with a process for confirming the eligibility finding (whether through staff or consultant peer review)

8. At present, Section 15.40.060A combines properties that have been designated as landmarks in Colton and those properties that have been found eligible *for designation* through a survey a. This might create confusion for City staff implementing these provisions and for citizens b. In some places, as well, references to the “Register” include those properties that have merely been found eligible *for* designation (which is typically referred to as an “Inventory” rather than a Register)
i. I recommend separating these two different categories of resources in their own sections, with their own names and provisions

1. First, clearly articulate what the “Register” is, what it includes, and what project reviews should be for Register-designated properties

2. Second, include the other category of properties (i.e., that have been found *eligible* for landmark designation through survey and evaluations but not yet formally designated) in an “Inventory of Historical Resources”
a. Establishing an Inventory provides more transparency and helps facilitate compliance with CEQA
b. Provisions might include what to do when a demolition permit comes forward for a property that is on the “Inventory” (i.e., it is eligible for formal designation) and slated for whole or partial demolition; the ordinance update can provide procedural steps for how to manage those applications

15.40.070 Amendment or rescission of Designation of Historic Resources and Historic Districts

1. Section 15.40.070(A)(2)(c): “Failure to approve the requested amendment or rescission would cause immediate and substantial Hardship to the Property Owner(s) which was not reasonably foreseeable at the time the resource or District was Designated.” a. Provide an exact definition of what “immediate and substantial hardship” entails and specific requirements for what will be required for property owners wishing to provide this, along with a schedule for reviews of such Certificates of Economic Hardship

15.40.80 Application to Commission for Certificate of Appropriateness and certificate of Hardship.

1. Re-examine the sections for “Moving” and “Demolition” of designated historic resources to ensure that the provisions are in step with current best practice and provide a sound nexus with CEQA’s provisions for historical resources

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APPENDIX A:
“City of San Gabriel Historic Preservation and
Cultural Resources Ordinance,” SWCA, 2017

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HISTORIC PRESERVATION AND CULTURAL RESOURCES
§ 153.600
TITLE.

This subchapter shall be known as the “Historic Preservation and Cultural Resource Ordinance” of the City of San Gabriel. (Ord. 636-C.S., passed 8-15-17)
§ 153.601
ENABLING AUTHORITY.

Cal. Gov’t Code §§ 65850 and 37361 enable municipal legislative bodies to “provide for places, buildings, structures, works of art, and other objects, having a special character or special historical or aesthetic interest or value, special conditions or regulations for their protection, enhancement, perpetuation or use, which may include appropriate and reasonable control of the use or appearance of neighboring private property within public view, or both.” (Ord. 636-C.S., passed 8-15-17)
§ 153.602
PURPOSE.
(A) The City of San Gabriel, as the birthplace of the Los Angeles metropolitan region, is home to a wide range of significant cultural resources that reflect our shared heritage and history. Cultural resources in the city encompass a range of resource types. These include paleontological resources, archaeological and Native American resources, buildings, structures, objects, historic districts, sites, public art and parks, cultural landscapes, and natural features. The retention and stewardship of cultural resources is of vital importance to retain and protect our heritage. The City Council also recognizes the right of private property owners to the use of their property and seeks to balance historic preservation important to the community as a whole with the rights of the property owner. (B) The purpose of this subchapter is to promote the public health, safety, and general welfare by providing for the identification, designation, protection, enhancement, and ongoing use of cultural resources that represent the city’s cultural, architectural, social, historical, economic, and political heritage.

It is the intent and purpose of the San Gabriel City Council in passing this subchapter to:
(1) Preserve, maintain, and safeguard the city’s heritage and character, for the enjoyment of present and future generations, by providing for the protection and thoughtful management of cultural resources as defined in this subchapter; (2) Foster awareness, recognition, and stewardship of the city’s archaeological and Native American cultural resources; (3) Encourage public knowledge and appreciation of the city’s heritage and foster civic and neighborhood pride and sense of identity through the recognition of cultural resources; (4) Encourage the maintenance and preservation of cultural landscapes that contribute to the historic character of our neighborhoods and built environment;
(5) Recognize the city’s cultural resources as economic assets; (6) Stabilize and improve property values within the city and increase the economic and financial benefits to the city and its inhabitants through the preservation, rehabilitation, and ongoing use of cultural resources; (7) Integrate the conservation of cultural resources into the public and private development process; (8) Implement the goals and policies of the General Plan Cultural Resources Element; (9) Facilitate the city’s compliance with the National Historic Preservation Act (NHPA) and California Environmental Quality Act (CEQA) and their provisions for cultural and historical resources; (10) Preserve diverse and significant architectural styles and property types reflecting the city’s history and encourage complementary new construction and design, to maintain the city’s historic scale and character; (11) Adopt and encourage the use of historic preservation incentives, both regulatory and economic, that promote the retention, rehabilitation, and protection of cultural resources. (Ord. 636-C.S., passed 8-15-17)
§ 153.603
DEFINITIONS.

The following terms when used in this subchapter shall have the meaning set forth in this section, unless a different meaning clearly appears from the context.

ALTERATION.

Any act or process that modifies a cultural resource that either:
(1) Requires a building or other permit and/or changes one or more of the features of a landscape or structure including, without limitation, the setting of the resource or the construction, reconstruction, or relocation of any structure or any part of a structure; or
(2) Significantly changes the setting and/or any character-defining feature of a landscape or exterior of a structure that relates to its status as a historic landmark or contributing resource.

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ARCHAEOLOGICAL RESOURCE.

A cultural resource that is any material remains of past human life, activities, or habitation that are of historic or prehistoric significance. Such resources might include, but are not limited to, tools, pottery, weapons, weapon projectiles, structures or portions/remnants of structures, rock carvings, graves, skeletal remains, personal items and clothing, or other items.

CALIFORNIA ENVIRONMENTAL QUALITY ACT (or CEQA)
.

The statute and regulations applying to public agencies in California as codified in the Cal. Pub. Res. Code §§ 21000 et seq., as it may be amended from time to time, and the corresponding Guidelines for the California Environmental Quality Act in the California Code of Regulations, §§ 15000- 15387, Title 14, Chapter 3, as it may be amended from time to time.

CALIFORNIA NATIVE AMERICAN TRIBE.

A Native American tribe located in California that is on the contact list maintained by the Native American Heritage Commission.

CALIFORNIA HISTORICAL BUILDING CODE (or CHBC; also known as the STATE HISTORICAL BUILDING CODE, or SHBC).

As codified in Part 8, Title 24 of the State Building Standards Code, shall apply to all qualified cultural resources designated or included in an adopted inventory per federal, state, and local authority. The CHBC
provides alternative,
performance-based building and zoning regulations to allow for upgrades, changes to, and ongoing use of historically significant properties that preserve their historic integrity.

CERTIFICATE OF ECONOMIC HARDSHIP.

The certificate granted to a property owner or applicant by the City Council to approve an initial review or certificate of demolition for a project that, due to undue economic hardship on the owner, does not comply with the Secretary’s Standards for the Treatment of Historic Properties.

CHARACTER-DEFINING FEATURE.

The physical elements and characteristics of a cultural resource that lend the resource its authenticity and significance.

CHARACTER-DEFINING FEATURES
can include, but are not limited to, a
property's setting and site plan, overall form and massing, architectural style, materials, finishes, and decorative detailing, as well as relationship to neighboring properties, planning features, hardscaping and landscaping, and interior features.

COMMUNITY DEVELOPMENT DIRECTOR (or DIRECTOR).

The Director of the Community Development Department or his or her designee.

CONSERVATION OVERLAY ZONE (or COZ).

An area that contains, within defined boundaries, a cohesive concentration of related buildings, structures, sites, objects, planning features, or natural/landscape features.

CONSERVATION

OVERLAY ZONE
is distinguished from a historic district in that it does not qualify as a historic district as defined in this subchapter but nonetheless contains a cohesive collection of related properties that, considered together, are of interest to local planning. The

CONSERVATION OVERLAY ZONE
is not a historical resource pursuant to CEQA.

CONTRIBUTING RESOURCE (or CONTRIBUTOR).

A cultural resource that is any building, structure, object, site, planning feature, sign, area, place, landscape, or natural feature within a historic district that contributes to the district’s historic, cultural, or architectural significance.

CULTURAL RESOURCE.

The broad category of all historic and prehistoric (archaeological, Native American, and paleontological) resource types that are significant in the history or prehistory of the city, region, state, or nation as defined in this subchapter.

CULTURAL RESOURCES
include resources listed on or found eligible for listing on the National Register of Historic Places, California Register of Historical Resources, San Gabriel Register of Cultural Resources, and the San Gabriel Inventory of Cultural Resources.

CULTURAL RESOURCES
can include paleontological resources,
archaeological and Native American resources, buildings, structures, objects, historic districts, sites, public art and parks, cultural landscapes and natural features, and/or any resource defined by the CEQA Guidelines [California Code of Regulations Title 14] § 15064.5(a).

CULTURAL RESOURCE MANAGEMENT GUIDELINES.

A set of guidelines that may be developed by the Historic Preservation and Cultural Resource Commission that describes requirements for the identification of archaeological, Native American, and paleontological resources and the preparation of Phase I cultural resources inventory reports; for the significance evaluation of archaeological and Native American resources and the preparation of Phase II cultural resources evaluation reports; for the mitigation of substantial impacts to significant archaeological resources through data recovery and the preparation of Phase III archaeological data recovery reports; and for the preparation of other cultural resources studies and reports.

CULTURAL RESOURCE SENSITIVITY MAP.

The confidential map commissioned and maintained by the Director showing the location of culturally sensitive areas, including parcels and/or properties known or suspected to contain archaeological and/or Native American cultural resources. Access to the

CULTURAL RESOURCE SENSITIVITY MAP
shall
be subject to the provisions of the federal Archaeological Resources Protection Act (16 U.S.C. 470hh), which requires that archaeological cultural resource site locations remain confidential in order to ensure their preservation. The California Public Records Act also provides for the nondisclosure of archaeological cultural resource information (Cal. Gov’t Code § 6254.10).

DEMOLITION.

Any act or process that destroys, in whole or in part, a building, structure, or site or permanently impairs its structural integrity and which is not in conformance with the Secretary of the Interior’s Standards for the Treatment of Historic Properties.

DIRECTOR.

The Director of the Community Development Department or his or her designee.

HISTORIC CONTEXT.

The broad patterns of historical development of a community or region that are represented by the physical development and character of the built environment. Contexts typically are based on one or more themes, a

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HISTORIC DISTRICT.

A type of cultural resource that is a geographic area having a significant concentration, linkage, or continuity of buildings, structures, objects, planning features, sites, natural/landscape features and other features united historically or aesthetically by plan or physical development.

HISTORIC INTEGRITY.

The authenticity of a property’s historic identity. Properties with

HISTORIC INTEGRITY
are those
properties that retain enough of their materials, features, and characteristics from their period of significance that they continue to convey the reasons for their significance. Often these are original materials that date from the property’s construction or early period. As defined by the National Park Service and in accordance with the accepted standards of professional preservation practice,

HISTORIC INTEGRITY
is the composite of seven aspects of integrity: location, design, setting, materials, workmanship, feeling and association.

HISTORIC INTEGRITY
is not the same as condition; a
deteriorated property may still retain

HISTORIC INTEGRITY
.

HISTORIC LANDMARK.

A type of cultural resource that is any improvement or natural feature that meets the eligibility criteria defined in §
153.607 and is subsequently nominated and added to the San Gabriel Register of Cultural Resources.

HISTORIC PRESERVATION AND CULTURAL RESOURCE COMMISSION (or COMMISSION).

The Historic
Preservation and Cultural Resource Commission established pursuant to this subchapter.

HISTORIC RESOURCE EVALUATION.

An in-depth study of a property to determine its eligibility as a federal, state, or local historic landmark. A

HISTORIC RESOURCE EVALUATION
generally results in a report including detailed, property- specific information about the resource. This information can include ownership/occupant history, historic context and themes of significance, character-defining features, as well as building type, dates of construction, architectural style, description of other design aspects, materials, and setting, approximate dates of exterior alterations, physical condition, and historic integrity analysis.

HISTORIC RESOURCE SURVEY.

A neighborhood- or city-wide survey to identify eligible cultural resources, including buildings, structures, objects, sites, historic districts, planning features, public art and parks, cultural landscapes, conservation overlay zones, and other features. A

HISTORIC RESOURCE SURVEY
generally results in an inventory of
properties that are potentially eligible for national, state, or local landmark designation. The survey produces basic information about each resource. This information generally includes building type, dates of construction, architectural style, description of other design aspects, materials, and setting, approximate dates of exterior alterations, physical condition, and notes on historic integrity.

HISTORIC RESOURCES.
(1) Those cultural resources that meet the significance criteria for designation as historic landmarks itemized in § 153.607 or for historic districts itemized in §
153.608, including all the resources identified as “contributing” to a historic district.

HISTORIC RESOURCES
in San Gabriel would include resources listed on federal, state, and local registers, identified in the Inventory, or properties that have not yet been evaluated but which evidence shows would satisfy the designation criteria. Generally, the term

HISTORIC RESOURCE
does not include paleontological resources.
(2)

HISTORICAL RESOURCES
are defined pursuant to CEQA as resources listed in, or formally determined eligible for listing in, the California Register of Historical Resources; resources listed in the local, San Gabriel Register or identified as significant in a historical resource survey prepared in accordance with state requirements; and resources that appear to meet the significance criteria for listing in the California Register in light of the evidence.

IMPROVEMENT.

Any building, structure, sign, fence, gate, wall, landscape, work of art, or other object affixed to and constituting a physical betterment of real property, or any part of such betterment.

INITIAL REVIEW.

The review completed by the Historic Preservation and Cultural Resource Commission to determine if an application to make major alterations, relocate, or demolish a designated cultural resource is historically appropriate.

Completion of the

INITIAL REVIEW
will result in a finding that the proposed changes are in accordance with the Secretary of the Interior’s Standards for the Treatment of Historic Properties and other applicable design guidelines provided for in this subchapter and will result in no significant adverse impacts to the cultural resource.

INITIAL REVIEW ADMINISTRATIVE CLEARANCE.

The review completed by city staff, at the administrative level, finding that an application for a minor alteration to a cultural resource is historically appropriate and in accordance with the Secretary of the Interior’s Standards for the Treatment of Historic Properties and other applicable design guidelines provided for in this subchapter and will result in no significant adverse impacts to cultural resources.

MAJOR ALTERATIONS.

Any work to a property that includes the alteration, removal, or obstruction of character-defining features, elevations, and spaces, or additions to a property that are visible from the public right-of-way, or, for properties not visible from the public right-of-way, those character-defining features that are visible from the front of the property.

MAJOR

ALTERATIONS
to a designated cultural resource are subject to an initial review by the Historic Preservation and Cultural Resource Commission.

MILLS ACT HISTORIC PROPERTY CONTRACT (or MILLS ACT CONTRACT).

The historic property contract between
the city and property owner that provides the potential for reduced property taxes in return for the rehabilitation, restoration, and preservation of an historic resource, pursuant to Cal. Gov’t Code §§ 50280 et seq. and Cal. Rev. & Tax Code §§ 439 et seq.

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MINOR ALTERATIONS.

Any work to a property that does not include changes/removal of character-defining features and is subject to an initial review administrative clearance.

MINOR ALTERATIONS
generally include the following, to the extent
they do not include changes/removal of, or do not affect, character-defining features: (1) paint color; (2) roofing material; (3) repairs to foundations; (4) ordinary maintenance and repair; (5) landscaping, including sprinkler system work (if the work does not involve character-defining landscaping or hardscaping features); (6) hardscaping and paving work (if the work does not involve character-defining landscaping or hardscaping features); (7) alterations carried out on the interior that do not affect the exterior of property (unless those interior features were historically accessible by the public and are specifically mentioned as character-defining features in an approved landmark designation or adopted survey); and (8) replacement of existing screens and awnings with the same or substantially consistent materials, form, and shape.

MULTI-PROPERTY NOMINATION.

A group of thematically related properties that are nominated to the San Gabriel Register. Such properties may be physically dispersed but share a common history and/or significance.

NATIONAL ENVIRONMENTAL POLICY ACT (or NEPA).

The statute codified in 42 U.S.C. 4321 et seq., and the regulations established in the C.F.R., Title 40, 1500-1508, requiring environmental review and outreach for qualifying projects.

NATIVE AMERICAN RESOURCES.

Sites, features, places, cultural landscapes, sacred places, and objects with cultural value to a California Native American tribe.

NON-CONTRIBUTING RESOURCE (or NON-CONTRIBUTOR).

Any building, structure, object, site, sign, area, place, or natural feature within a historic district that does not meet the criteria for eligibility, does not contribute to the district’s historic, cultural, or architectural significance, and therefore is not a cultural resource for the purposes of this subchapter.

ORDINARY MAINTENANCE AND REPAIR.

Work on a cultural resource that:
(1) Does not, by law, require issuance of a permit;
(2) Involves regular or customary care of an existing building, structure, object, or site, for the purposes of preserving the property and maintaining it in a safe and sanitary condition; and (3) Does not involve a change of design, material, or appearance of any identified character-defining features.

PALEONTOLOGICAL RESOURCES.

Those cultural resources that consist of fossils, or the remains, imprints, or traces of once-living organisms preserved in rocks and sediments. Significance for

PALEONTOLOGICAL RESOURCES
shall be
defined by a qualified paleontologist as defined in this subchapter.

PRESERVATION.

The act or process of sustaining the existing materials, form, and integrity of a historic property. The focus of

PRESERVATION
is protecting and stabilizing the property, through on-going maintenance and repair of historic materials and features, rather than extensive replacement and new construction.

PROPERTY OWNER or OWNER.

The person or persons appearing as the latest owner of the improvement, natural feature or site on the most recent equalized assessment roll of the County of Los Angeles.

QUALIFIED PROFESSIONAL(S).

Any of the following professions/occupations:
(1)
ARCHAEOLOGIST.

An archaeologist who meets and/or exceeds the Secretary of the Interior’s Professional Qualifications Standards in archaeology, as defined by the National Park Service (36 C.F.R. 61). (2)
ARCHITECTURAL HISTORIAN.

An architectural historian who meets and/or exceeds the Secretary of the Interior’s Professional Qualifications Standards in architectural history, as defined by the National Park Service (36 C.F.R. 61).
(3)
ECONOMIC PROFESSIONAL.

A qualified economic consultant selected and approved by the city. (4)
HISTORIAN.

A historian who meets and/or exceeds the Secretary of the Interior’s Professional Qualifications Standards in history, as defined by the National Park Service (36 C.F.R. 61). (5)
HISTORIC ARCHITECT.

A licensed architect who meets and/or exceeds the Secretary of the Interior’s Professional Qualifications Standards in historic architecture, as defined by the National Park Service (36 C.F.R. 61). (6)
NATIVE AMERICAN MONITORS.

Experienced cultural resource monitors recommended by culturally affiliated Native Americans listed by the California Native American Heritage Commission (NAHC) as local contacts for the region. (7)
PALEONTOLOGIST.

A paleontologist who is a qualified professional paleontologist as defined by the Society of Vertebrate Paleontology.
(8)
STRUCTURAL ENGINEER.

Any individual registered by the State of California to practice structural engineering and to use the title structural engineer pursuant to the Cal. Bus. and Prof. Code, Chapter 7, § 6701. When working with historic buildings and structures for the City of San Gabriel, the

STRUCTURAL ENGINEER
shall satisfy the Secretary of the
Interior’s Professional Qualifications Standards for Engineering and have demonstrable project experience in historic preservation and the use of the California Historical Building Code.

REHABILITATION.

The act or process of making possible a compatible use for a property through repair, alterations, and additions while preserving those portions or features which convey its historical, cultural, or architectural significance.

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RESTORATION.

The act or process of accurately depicting the form, features, and character of a property as it appeared at a particular period of time by means of the removal of features from other periods in its history and reconstruction of missing features from the restoration period, which may include the limited and sensitive upgrade of mechanical, electrical, and plumbing systems and other code-required work to make the property functional and safe.

SAN GABRIEL INVENTORY OF CULTURAL RESOURCES (or INVENTORY).

The

INVENTORY
of buildings, structures,
objects, sites, historic districts and historic district contributors, signs, areas, landscapes, places, and natural features in the city that have been found potentially eligible for historic designation through an adopted historic resource survey prepared and approved in accordance with the provisions of this subchapter. The

INVENTORY OF CULTURAL RESOURCES
shall
be prepared and approved in accordance with §
153.605. The locations of archaeological resources shall remain confidential, pursuant to the federal Archaeological Resources Protection Act (16 U.S.C. 470hh) and California Public Records Act (Cal. Gov’t Code § 6254.10).

SAN GABRIEL REGISTER OF CULTURAL RESOURCES or (REGISTER).

The list or register of designated cultural
resources, including individual historic landmarks, historic districts, and their contributing features, archaeological resources, paleontological resources, and Native American resources, prepared and approved in accordance with the provisions of this subchapter. The locations of archaeological resources shall remain confidential, pursuant to the federal Archaeological Resources Protection Act (16 U.S.C. 470hh) and California Public Records Act (Cal. Gov’t Code § 6254.10).

SECRETARY OF THE INTERIOR’S STANDARDS FOR THE TREATMENT OF HISTORIC PROPERTIES (or SECRETARY'S STANDARDS).

The Standards and Guidelines developed by the United States Department of the Interior, National Park Service (36 C.F.R. § 68), for the preservation, rehabilitation, restoration, and reconstruction of historic resources. In accordance with California Code of Regulations Title 14, Chapter 3, §§ 15064.5, 15126.4(b)(1), and 15331, physical changes to historical resources that conform with the Secretary’s Standards are generally considered to be mitigated to a level of less than significant under CEQA. Projects complying with the Secretary’s Standards may be eligible for a Class 31 Categorical Exemption from CEQA.
(Ord. 636-C.S., passed 8-15-17)
§ 153.604
HISTORIC PRESERVATION AND CULTURAL RESOURCE COMMISSION. (A)
Establishment of Commission.

There is hereby created the San Gabriel Historic Preservation and Cultural Resource Commission.

The Commission shall have and exercise the powers and perform the duties set forth in this subchapter.

Except as otherwise specified in this subchapter, the Commission shall be subject to the provisions of Chapter 33
(Commissions) of this code.
(B)
Composition and appointment of members.
(1) Commissioners shall be appointed pursuant to
Chapter 33 (Commissions) of this code. All members shall have an expressed and/or demonstrated interest, experience, or knowledge of the cultural heritage, history, and/or architecture of the city. Preference shall be given to residents of the city. (2) At least two members of the Commission shall be appointed from among professionals in the disciplines of anthropology, archaeology, architecture, history, historic preservation, landscape architecture, urban planning, land economics, real estate or a related discipline, to the extent that such professionals are available in the community. (C)
Terms and vacancies
.

The Commission will consist of five members to be appointed by the City Council. The members will serve two-year terms and may be appointed for additional two-year terms. Any vacancy shall be filled by the City Council within a reasonable time after the vacancy occurs, for the unexpired term. Members shall serve until their successors are appointed. The members of the Commission shall serve without compensation. (D)
Chairman, Vice-Chairman, Secretary, rules.

The Commission shall elect its chairman and vice-chairman who shall have the power to administer oaths and take testimony.
(E)
Member’s failure to attend meetings, successor.

If a member of the Commission fails to attend three consecutive regular meetings of the Commission, or fails to attend 50% or more of the regular meetings of the Commission during a calendar year, unless excused by the Chairman, the City Council may declare such member’s seat vacant and appoint a new member to serve the balance of the unexpired term.
(F)
Meetings and record of proceedings.

The Commission shall meet on a quarterly basis, at minimum, and monthly basis if needed, as determined by the Director. All meetings of the Commission (1) shall be open to the public and (2) noticed and held in compliance with the provisions of the state’s Ralph M. Brown Act.

The Commission shall keep a record
of minutes of all of its proceedings and actions, which shall be available for public inspection. (G)
Powers and duties
.

The Commission shall have the following powers and duties, in addition to any other duties specified in this subchapter:
(1)
General powers
.

The Commission shall advise the City Council, Planning Commission, and all city departments and staff on all matters relating to the identification, protection, retention, preservation, and registration of cultural resources in the city, as directed by the City Council. Notwithstanding the foregoing, the Commission shall have the following powers and duties in addition to those otherwise provided in this subchapter:
(a) Administer the provisions of this subchapter;

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(c) Compile and maintain for public use and information the San Gabriel Register of Cultural Resources; (d) Compile, maintain, and periodically update the San Gabriel Inventory of Cultural Resources; (e) Recommend the designation and approval of eligible cultural resources for inclusion in the San Gabriel Register and designation and approval of conservation overlay zones; (f) Approve or disapprove in whole or in part applications for the demolition, alteration, or relocation of properties included on the Register and Inventory in accordance with the provisions of this subchapter, in addition to any review by the Planning Commission and/or any other hearing body;
(g) Approve or disapprove in whole or in part applications for in-fill/new construction within historic districts listed on the Register, in addition to any review by the Planning Commission and/or any other hearing body; (h) Review and comment on the decisions and documents, including but not limited to environmental assessments, environmental impact reports, and environmental impact statements, prepared by the city or other public agencies when such decisions or documents might affect designated or eligible historical resources within the city; (i) Participate in, promote, and conduct public informational, educational, and interpretive programs pertaining to historic preservation;
(j) Recommend and encourage the protection, enhancement, appreciation, and use of properties of cultural, historical, architectural, community or aesthetic value that have not been designated as cultural resources but are deserving of recognition;
(k) Review applications and make recommendations to the City Council on Mills Act contract applications and other incentive programs;
(l) Upon request, make recommendations to the Planning Commission on zoning and general plan amendments related to historic preservation goals and policies; and (m) Perform any other functions that may be designated by resolution or action of the City Council. (2)
Secretary
.

The Director shall act as Secretary of the Commission and shall be custodian of its records, conduct official correspondence, and generally coordinate the clerical and technical work of the Commission in administering this subchapter.
(Ord. 636-C.S., passed 8-15-17

; Am. Ord. 679, passed 10-19-21
)
§ 153.605
SAN GABRIEL INVENTORY OF CULTURAL RESOURCES.
(A)
Purpose.

The Cultural Resources Chapter of the General Plan includes goals and targets intended to identify and protect San Gabriel’s cultural resources. Target 11.4.2 specifies the creation of an inventory of “San Gabriel’s cultural resources and landscapes.” This section furthers this goal by creating the San Gabriel Inventory of Cultural Resources (Inventory).
(B)
Intent.

This section establishes the process for creating and managing the Inventory, which is the city’s list of potentially eligible cultural resources.
(C)
Inventory of cultural resources established
. The city shall create and maintain an official list of properties known as the San Gabriel Inventory of Cultural Resources (“Inventory”). The Inventory shall be a list of potentially eligible cultural resources identified through a historic resource survey. The historic resource survey creating the Inventory shall be completed under the direction of the Director and Commission by a qualified architectural historian or historian as defined in this subchapter, in accordance with accepted professional practices.

Prior to commencement of a historic resource survey,
the city shall commission the preparation of a citywide historic context statement, in order to identify significant themes and patterns of development and to develop a consistent framework for survey work and evaluations. (D)
Inventory creation, review, and adoption
. Within the first year of its establishment, the Commission shall forward a plan to the City Council recommending a comprehensive and systematic historic resource survey, which will provide the basis for the Inventory. The Inventory shall be reviewed and approved by the Commission. The Commission shall then refer the Inventory to the City Council for discussion and approval. The Commission shall compile and maintain the Inventory of Cultural Resources.
(E)
Inventory updates
. In accordance with the purpose of this subchapter and to ensure the city’s proactive identification and treatment of cultural resources, and consistent with the intent of Cal. Pub. Res. Code § 5024.1.g(4), the Inventory shall be reviewed at minimum every five years and periodically updated through historic resource surveys. (F)
Inventory notification
. All owners and residents of properties included on the Inventory shall be notified by the city of this inclusion, in a process and timeline to be determined by the Director.

In order to ensure that owners, residents, and
potential owners are aware of the status of cultural resources, the Director and Building and Safety Division shall implement and oversee a system for clearly identifying and marking the building records of all Inventory-listed properties, including but not limited to a geographic information systems (GIS) database.

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Inventory of cultural resources and CEQA.

In accordance with California Code of Regulations Title 14, Chapter 3, § 15064.5(a)(2), properties included on the Inventory of Cultural Resources shall be considered historical resources for purposes of CEQA.
(Ord. 636-C.S., passed 8-15-17)
§ 153.606
SAN GABRIEL REGISTER OF CULTURAL RESOURCES.
(A)
Purpose.

The Cultural Resources Chapter of the General Plan includes goals and targets aimed at identifying, conserving, and protecting San Gabriel’s cultural resources. The creation of the San Gabriel Register of Cultural Resources (Register) forwards the goals of the General Plan.
(B)
Intent
. This section establishes the process for creating and managing the Register, which is the city’s list of officially designated cultural resources.
(C)
Register of cultural resources established.

There is hereby established the San Gabriel Register of Cultural Resources (“Register”). The Register shall include all locally designated cultural resources, as well as properties designated on the National Register of Historic Places and California Register of Historical Resources. The Register is also understood to include all contributors to designated historic districts in addition to individually designated properties. The most current iteration of the Register shall be made available on the city’s website and will be included in the city’s GIS database. (D)

Reserved.
(E)
Prior local designations
. Any property designated as a culturally significant landmark or as a historic landmark by the City Council on or before the effective date of this subchapter shall be automatically designated as a cultural resource for purposes of this subchapter and included on the Register. Any historic property under a Mills Act contract at the time of the adoption of this subchapter shall also be automatically added to the Register. (F)
New designations
. New designations of cultural resources shall be initiated in accordance with the criteria and procedures set forth in this subchapter.
(G)
Designation runs with the land.

The designation of a cultural resource shall not be affected by a change of the property owner.
(H)
Rescission of designation
.

The conditions and process for amendment or rescission of a cultural resource designation are described in §
153.612 (Amendment or Rescission of Designation).
(Ord. 636-C.S., passed 8-15-17

; Am. Ord. 679, passed 10-19-21
)
§ 153.607
DESIGNATION CRITERIA FOR HISTORIC LANDMARKS.

With the advice of the Commission, the City Council may designate a property, site, public art, park, cultural landscape, or natural feature as a historic landmark and add it to the San Gabriel Register if it meets the requirements described in divisions (A) and (B) below:
(A) The property meets one of the following eligibility criteria:
(1) It is or was once associated or identified with important events or broad patterns of development that have made a significant contribution to the cultural, architectural, social, historical, economic, and political heritage of the city, region, state, or nation.
(2) It is or was once associated with an important person or persons who made a significant contribution to the history, development, and/or culture of the city, region, state, or nation. (3) It embodies the distinctive characteristics of a style, type, period, or method of construction; represents the work of a master, or possesses high artistic or aesthetic values; or it represents one of the last, best remaining examples of an architectural type or style in a neighborhood or the city that was once common but is increasingly rare. (4) It has yielded or has the potential to yield information important to the prehistory or history of the city, region, state, or nation.
(B) The property retains integrity from its period of significance, as determined by a qualified architectural historian or historian. A proposed historic landmark need not retain all seven aspects of historic integrity (location, design, setting, materials, workmanship, feeling, and association), but it must retain sufficient integrity to convey the reasons for its cultural, architectural, social, historical, economic, and political significance. (C) Neither the deferred maintenance of a proposed historic landmark nor its dilapidated condition shall, on its own, be equated with a loss of integrity. Integrity shall be judged with reference to the particular characteristics that support the property’s eligibility under the appropriate criteria and theme of significance. (Ord. 636-C.S., passed 8-15-17)
§ 153.608
DESIGNATION CRITERIA FOR HISTORIC DISTRICTS.
(A) In addition to satisfying the criteria in §
153.607(A) when recommending the designation of a historic district, the Commission
and City Council must also find:

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Attachment: Attachment 5_SWCA Historic Preservation Ordinance Review and Recommendations (4556 : Colton General Plan Cultural Resources Update (1) That the historic district is an identifiable and distinct entity with discernible boundaries, consisting of a cohesive concentration, linkage, or continuity of sites, buildings, structures or objects united historically or aesthetically by plan or physical development.
(2) That the historic district retains integrity from its period of significance as determined by a qualified architectural historian or historian.

Not all properties or features within a proposed district need to retain all seven aspects of integrity (location, design, setting, materials, workmanship, feeling, and association), but a substantial number of such properties and structures must retain sufficient integrity to convey the historic, cultural, or architectural significance of the district. (3) That a minimum of 51% of the buildings and structures within the boundaries of the historic district be identified as contributors to the historic district.
(B) The components of an eligible historic district may lack individual distinction but still represent a significant and distinguishable entity that meets eligibility criteria. (C) In recommending approval of a historic district, the Commission shall recommend the adoption of district-specific preservation plan and design guidelines to guide subsequent in-fill and new construction, alterations and additions, and to further the purpose of this subchapter.
(D) Neither deferred maintenance within a proposed district nor the dilapidated condition of its constituent buildings and landscapes shall, on its own, be equated with a loss of integrity.

Integrity shall be judged with reference to the particular characteristics that support the district’s eligibility under the appropriate criteria and theme of significance. (Ord. 636-C.S., passed 8-15-17)
§ 153.609
DESIGNATION PROCEDURES–HISTORIC LANDMARKS.
(A)
Application
. The Historic Preservation and Cultural Resource Commission, upon its own initiative or upon the written request of any person or group, including the San Gabriel Historical Association, or any city agency, may recommend the designation of a historic landmark to the Register. In the event the City Council, city agency, or Commission initiates the application, the Director shall oversee and cause the completion of the required application. (B)
Notification of property owners.

The property owner of each cultural resource nominated to the Register shall be notified by the city of the proposed designation at least 60 days prior to the Commission hearing at which the application is considered. Notification shall be to the last owner of record as contained on the most recent equalized assessment roll of the County of Los Angeles and shall be by certified mail. Property owners shall have the right to protest the designation of their property before the Commission and City Council. Such protest shall be in writing to the Community Development Department and/or presented in testimony before the Commission and/or City Council. (C)
Landmark application materials.

All applications for designation shall be made on a form prescribed by the Director and shall include the following data:
(1) The assessor’s parcel number and legal description of the site. (2) A description of the property and statement of how it qualifies under the criteria described in § 153.607 or
153.608.
(3) A detailed architectural description, enumerating the property’s character-defining features, elevations, and spaces. (4) Construction chronology of the property, including detailed history of major alterations/additions. (5) Ownership history.
(6) A statement of significance describing why and how the property or feature meets the eligibility criteria of the code including the area of significance, theme, and period of significance. (7) Current photographs and (if available) historic photographs, maps, sketches, drawings, or other descriptive material as available to support the nomination.
(8) Any applicable fees as determined by the Director, and such other information as requested by the Commission or Director.
(9) For a multi-property nomination, the application package should include a detailed statement of significance for the class of resources being nominated and the eligibility requirements for individual properties to be considered part of the nomination. Documentation of the individually nominated properties should include division (C)(1) through (5) above of the landmark application materials and a statement of how each individual property satisfies the specified eligibility requirements.
(D)
Confirmation of eligibility
.

At the discretion of the Director, a historic resource evaluation may be prepared to provide a professional peer review of a designation application, to confirm the finding of eligibility. Such an assessment shall be submitted to the Commission for review and concurrence. The assessment shall be completed by a qualified architectural historian or historian as defined in this subchapter.
(E)
Commission review and recommendation.

The Commission shall review and conduct a public hearing on the merits of the application, to determine whether the proposed landmark satisfies the criteria for landmark designation stipulated in § 153.607 of this subchapter. The public hearing will be noticed in accordance with the provisions of this subchapter. After the close of the hearing, the Commission shall adopt a resolution recommending to the City Council the approval, conditional

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(F)
City Council determination
.

After receiving the Commission’s recommendation, the City Council shall conduct a public hearing on the landmark nomination application. The public hearing will be noticed in accordance with the provisions of this subchapter. The City Council shall consider the Commission’s recommendation and any written objection to the designation by the nominated property’s owner filed with the Director at least ten days prior to the City Council hearing. The City Council shall adopt a resolution approving, conditionally approving, or denying the application. If the City Council has not taken action on the application within 180 days of the Commission’s recommendation, then the application shall be deemed denied.
(G)
Designation.
(1) Upon designation by the City Council, the Director or his or her designee shall forward a copy of the resolution approving the designation of a historic landmark to any department or agency that the Director deems appropriate, and shall record or cause to be recorded the location, characteristics, and significance of the historic landmark on a California Department of Parks and Recreation Historic Resources Inventory Form 523, or current equivalent form, in accordance with the practices specified by the State Office of Historic Preservation for the recordation of cultural resources. (2) Upon adoption and placement of the property on the Register, the resolution of designation shall be recorded with the County Recorder’s office pursuant to Cal. Pub. Res. Code § 5029, as it may be amended from time to time. (3) A designated cultural resource may be identified by an approved city marker, but such a marker is not required. (H)
Building records for Register-listed properties
. In order to ensure that owners, residents, and potential owners are aware of the status of cultural resources in the city, the Director and Building and Safety Division will implement and oversee a system for marking and identifying the building records of all Register-listed properties in the city. (Ord. 636-C.S., passed 8-15-17)
§ 153.610
DESIGNATION PROCEDURES–HISTORIC DISTRICTS.
(A)
Initiation of request for designation of a historic district.

Applications for historic districts may be initiated by any property owner, resident, or tenant in the potential historic district, the Commission, or any city agency. The request must include the draft boundaries for the historic district and be accompanied by a preliminary statement of how the potential district satisfies the historic district criteria for designation, a map, and representative photographs of the district. The request must also include a petition signed by at least 51% of the property owners within the proposed boundaries of the potential district, stating their support of pursuing historic district designation. (B)
Preliminary determination of eligibility and public hearing to take historic district under consideration.

Upon receipt of
a request for historic district consideration, the Director shall make a preliminary determination of eligibility, with the assistance of a qualified architectural historian or historian as defined in this subchapter. The Commission shall conduct a public hearing on the preliminary determination to decide whether to take the proposed district under consideration. Notice of the meeting shall be sent to all property owners and all addresses within the boundaries of the district. Following the public hearing, written notice of the decision of the Commission to proceed or not proceed with the district designation shall be sent to all property owners and all addresses within the boundaries of the district. (C)
Historic resource survey
. If the Commission decides to proceed with the designation, an intensive-level historic resource survey of the district shall be prepared by a qualified architectural historian or historian as defined in this subchapter. The survey report shall include a clear description of the district boundaries; an itemization of all contributing and non-contributing resources and features within those boundaries; a statement of the historic context of the district and how the district satisfies the designation criteria; California Department of Parks and Recreation Inventory forms (series 523) for the district and all properties within the district boundaries; and recommendations for a preservation plan and design guidelines for the district.
(D)
Public workshop.

During or after completion of the historic resource survey, the Commission shall hold one or more public workshops to discuss the formation of the historic district. The workshop(s) shall be noticed as specified in § 153.610(B) of this subchapter.
(E)
Commission review and recommendation
.

Following completion of the historic resource survey and public workshop(s), the Commission shall review and conduct a public hearing on the survey and district application.

The public
hearing will be noticed as specified in §
153.610(B) of this subchapter. After the close of the hearing, the Commission shall adopt a resolution recommending to the City Council the approval, conditional approval, or denial of the application. Written notice of the recommendation of the Commission shall be sent to all property owners and addresses within the boundaries of the district.
(F)
City Council determination
.

After receiving the Commission’s recommendation, the City Council shall conduct a public hearing on the district application. The public hearing will be noticed as specified in § 153.610(B) of this subchapter. The City
Council shall adopt a resolution approving, conditionally approving, or denying the application.

If the City Council has not
taken action on the application within 180 days of the Commission’s recommendation, then the application shall be deemed denied. Written notice of the City Council action shall be sent to all property owners and addresses within the boundaries of the district.
(1) Whenever the City Council designates a historic district, it shall also adopt:
(1) a written description and clear
depiction of the district boundaries; and (2) a detailed report that identifies and describes the contributing resources and

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(3) The Director or Commission shall, in a timely manner, also prepare or commission the preparation of a preservation plan and design guidelines for designated historic districts. Design guidelines shall establish standards and recommended/not recommended approaches for new construction, alterations, and additions within the boundaries of the historic district. In addition to (or in the absence of) design guidelines, the Secretary’s Standards shall be used in the completion of the initial review process for historic appropriateness for new construction, alterations, and additions. (4) The city shall not establish the district if 51% of the property owners file an objection in writing prior to the City Council public hearing. The percentage is to be determined based on the number of Assessor’s parcels within the district. (G)
Designation.

Upon designation by the City Council, the Director or his or her designee shall forward a copy of the resolution approving the designation of a historic district to any department or agency that the Director deems appropriate and the resolution of designation shall be recorded with the County Recorder’s office pursuant to Cal. Pub. Res. Code § 5029, as it may be amended from time to time.
(Ord. 636-C.S., passed 8-15-17)
§ 153.611
CONSERVATION OVERLAY ZONES–CRITERIA AND PROCEDURES.
(A)
Purpose
. The Cultural Resources Chapter of the General Plan includes a number of goals and targets intended to identify, conserve, and protect the historic character of the city’s neighborhoods. Allowing for the identification and adoption of conservation overlay zones forwards General Plan goals and targets. (B)
Intent.

This section establishes the criteria and process for identifying and adopting conservation overlay zones. (C)
Definition.

CONSERVATION OVERLAY ZONES
are cohesive groupings of related properties that convey an era or type of construction in the city’s history but do not qualify for designation as historic districts. This subchapter provides for the identification and management of such

CONSERVATION OVERLAY ZONES
. Alterations to properties and features
found to be contributing elements of

CONSERVATION OVERLAY ZONES
shall be subject to design guidelines and
standards as adopted by the Commission. For purposes of CEQA,

CONSERVATION OVERLAY ZONES
are not historical
resources.
(D)
Procedures.

As verified by a qualified architectural historian or historian through a historic resource survey or evaluation, the Commission may recommend that the City Council approve the creation of a conservation overlay zone if the proposed zone meets one of the following criteria:
(1) It represents a grouping of properties and features with a cohesive and identifiable setting, architectural style, scale, or character, and/or development history or association that makes it an integral part of the city’s identity; or (2) It represents a recognized neighborhood identity with a definable physical character whose retention would contribute to the historic character and setting of the city. (E)
Design guidelines.

The adoption of a conservation overlay zone shall be accompanied, within a timely manner, by the adoption of design guidelines to guide new construction/in-fill, major alterations, and additions within the boundaries of the conservation overlay zone. The design guidelines shall reference the Secretary of the Interior’s Standards, particularly with reference to the mass and scale of new construction/infill, major alterations, and additions, interpreted with the flexibility appropriate to a conservation overlay zone.
(Ord. 636-C.S., passed 8-15-17)
§ 153.612
AMENDMENT OR RESCISSION OF DESIGNATION.
(A)
Criteria for rescission.

Once a cultural resource has been designated, it shall not be repealed by the City Council unless the City Council first determines that:
(1) the evidence used to establish the designation was erroneous; or (2) the cultural resource no longer meets the criteria for designation established in §§ 153.607 and
153.608 of this subchapter.
(B)
Amendment or rescission.

The City Council may initiate an amendment or rescission of the designation of any designated cultural resource in the same manner that is followed for designation. This process shall be considered a discretionary action under CEQA.
(Ord. 636-C.S., passed 8-15-17)
§ 153.613
DUTY TO MAINTAIN DESIGNATED CULTURAL RESOURCES.
(A)
Purpose
. The owner, or other person in charge, of a cultural resource listed on the Register has a duty to maintain in good repair all exterior features and to comply with all applicable codes, laws, and regulations governing the maintenance of the cultural resource. It is the intent of this section to preserve from deliberate or inadvertent neglect the exterior features of cultural resources and the interior portions thereof when such maintenance is necessary to prevent deterioration and decay of the exterior. Cultural resources listed on the Register shall be protected against such decay and deterioration and shall remain free from structural defects through prompt corrections of any of the following defects:

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(2) Deterioration of flooring or floor supports or other horizontal members that causes leaning, sagging, splitting, listing or buckling;
(3) Deterioration of external chimneys that causes leaning, sagging, splitting, listing or buckling; (4) Deterioration of crumbling exterior plasters or mortars; (5) Ineffective waterproofing of exterior walls, roofs, foundations including broken windows and doors; (6) Defective protection or lack of weather protection for exterior walls and roof coverings, including through the lack of paint or other protective covering;
(7) Rotting holes or other forms of decay;
(8) Deterioration of exterior stairs, porches, handrails, window and door frames, cornices, entablatures, wall facings, ornament, trim and other architectural details that cause delamination, instability, loss of shape and form and crumbling. (B)
Enforcement procedures.
(1) The Director may file a petition listing specific defects with the Neighborhood Improvement Services Manager, or person whom the Director has designated to act in that capacity, requesting the correction of defects and/or repairs to designated properties.
(2) Whenever such a petition is filed, the Neighborhood Improvement Services Manager or the Director’s designee shall attempt to make direct personal contact with the owner or other such person having legal possession or custody and/or representative. If personal contact is not possible, then written notification of the specific defects and a right to inspect the property will be mailed to the owner or such person having legal possession, custody and/or control and posted at a conspicuous location appropriate to the identified defects. In the written notification, the Neighborhood Improvement Services Manager or the Director’s designee shall document the nature of the specific defects and corrective action ordered. (3) After receiving agreement from the owner, representative or other such persons having legal possession, custody and control of the property for an inspection, the Neighborhood Improvement Services Manager or the Director’s designee and the Director or his or her designee shall conduct an investigation and prepare a written report on whether the property requires work to meet the requirements of division (A) set forth above. (4) If the property is found to require work to meet the requirements of division (A) above, the owner, representative or such persons having legal possession, custody and control of the property will be served within 15 days with a complaint identifying the deficiencies and providing notice that a hearing will be held before the Commission at their next available agenda. The purpose of the hearing shall be to:
(a) Receive evidence about the deteriorated conditions; (b) Develop a plan and schedule for undertaking the needed repairs to stabilize the building or structure and arrest further deterioration.
(5) Following such notice and hearing a written determination as to the conditions in need of correction/repair will be prepared, and the owner or other interested parties will be served with an order to repair those defective elements within a reasonable specified time frame.
(6) If the owner fails to make the necessary repairs within the identified time frame, the city may utilize any available remedy at law to correct the deficiencies that create any hazardous and/or unsafe conditions to life, health, or property. The expense of this work can be recorded as a lien on the property. (Ord. 636-C.S., passed 8-15-17)
§ 153.614
INITIAL REVIEW–REQUIREMENT.
(A)
Purpose
. No person shall carry out or cause to be carried out any alteration or relocation of a property listed on the Register unless the city has first completed an initial review for historic appropriateness of the proposed work in accordance with the requirements of this subchapter. The approval or denial of the proposed work shall be deemed a discretionary action under CEQA (California Code of Regulations, Title 14, § 15002(i)). (B)
Intent
. It is the intent of the City of San Gabriel that cultural resources listed on the Register will not be inappropriately altered or relocated unless extraordinary circumstances exist. Initial reviews for appropriateness shall comply with applicable state and federal laws and regulations, including without limitation, CEQA, the National Historic Preservation Act and the National Environmental Policy Act. Performance of any work that falls within the provisions of this subchapter without an initial review is prohibited.
(C)
Actions requiring an initial review by administrative clearance.

Minor alterations to a cultural resource meeting the
conditions described in §
153.615(A) and (B).
(D)
Actions requiring an initial review by Commission.

The following actions shall require an initial review for appropriateness from the Commission.

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(E)
Exceptions to requirement for initial review, ordinary maintenance and repair . An initial review shall not be required for
ordinary maintenance and repair as defined in this subchapter, or for projects that do not, by law, require issuance of a permit and do not involve a change of design, materials, or exterior appearance. From time to time as circumstances warrant, the Commission may, by resolution, modify the list of actions deemed to qualify for an exemption from the initial review requirement. The following work or construction involving a cultural resource shall not require an initial review:
(1) Exterior or interior paint color;
(2) Ordinary maintenance and repair that does not require a building permit, as defined in § 153.603 of this subchapter;
(3) Landscaping, including sprinkler system work, that does not affect a character-defining feature; (4) Paving work that does not affect a character-defining feature; (5) All work that is entirely interior and does not affect the exterior of a cultural resource, except for interior features that are specifically mentioned as character-defining features in a landmark designation adopted by the city or character-defining interior features that were originally accessible by the public; (6) Replacement of existing screens and awnings with the same or substantially consistent materials, form, and shape; (7) Other projects as determined by the Director or his or her designee. (Ord. 636-C.S., passed 8-15-17)
§ 153.615
INITIAL REVIEW, ADMINISTRATIVE CLEARANCE FOR MINOR ALTERATIONS–PROCEDURES. (A)
Purpose.

An initial review administrative clearance may be completed by the Director or his or her designee for minor alterations to designated cultural resources that require issuance of a permit but do not involve a change of design, material, or appearance of character-defining features or the removal or obstruction of character-defining features. The initial review administrative clearance shall apply to properties listed on the Register. (B)
Eligibility
. From time to time as circumstances warrant, the Commission may, by resolution, modify the list of actions deemed to qualify for an initial review administrative clearance. Minor alterations that may be eligible for an initial review administrative clearance include the following projects:
(1) Demolition or relocation of non-character-defining features, including, without limitation, non-contributing additions, garages, accessory structures or incompatible, previously replaced windows, doors, or siding material; (2) Re-roofing, if the proposed roofing material is comparable in appearance, color, and profile to the existing or original roofing material, as shown through documentary evidence; (3) Replacement of windows and doors if the proposed replacements are the same materials, form, and color as the existing or original windows and doors, as shown through documentary evidence; (4) Foundation work;
(5) Landscape alterations, or removal or installation of tree and plant material not specifically designated or listed as character-defining features in the landmark nomination application; (6) New paving for driveways, walkways, and/or patios not specifically designated or listed as character-defining features in the landmark nomination application;
(7) Repainting of exterior surfaces and materials that were painted during the period of significance and specified as character-defining features on landmark application materials. The painting of character-defining exterior surfaces and materials that were originally unpainted are specifically excluded from this provision; (8) Installation of exterior lighting;
(9) Electrical, plumbing, utility work, and other permits for mechanical and other building systems, including rooftop appurtenances not visible from the public right-of-way or any property at street level; (10) Repair or replacement of deteriorated materials with replacements/components made of the same materials, with the same appearance and function as the original character-defining features; (11) Addition or removal of canopies whose removal does not result in damage or destruction of character-defining features;
(12) An addition of fewer than 150 square feet located on rear elevations that are not visible from the public right-of-way and that do not change, remove, or obscure character-defining features;

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(Ord. 636-C.S., passed 8-15-17)
§ 153.616
INITIAL REVIEW, ADMINISTRATIVE CLEARANCE FOR MINOR ALTERATIONS–FINDINGS.

The following considerations shall guide the initial review administrative clearance for historic appropriateness. (A) The Director or his or her designee may approve or approve with conditions an initial review administrative clearance for historic appropriateness for minor alterations to cultural resources listed on the Register that:
(1) Are compatible with the historic character and scale of the cultural resource, including its size, massing, proportions, orientation, architectural details, and the spatial relationships that characterize the property and its site; (2) Do not result in a change of design, material, or appearance of the property’s character-defining features (except those changes determined to be in compliance with the Secretary’s Standards, per division (A)(3) below; (3) Comply with the Secretary’s Standards and any other applicable design guidelines adopted by the city; (4) Will not cause a substantial adverse change in the significance of a cultural resource in accordance with CEQA; (5) Are consistent with the goals and policies of the General Plan; and (6) Are consistent with the provisions of this chapter. (B) In accordance with CEQA, a project that has been determined to conform with the Secretary’s Standards is generally considered to be a project that will not cause a significant adverse impact to a historical resource, pursuant to California Code of Regulations, Title 14, § 15126.4(b)(1). Projects that comply with the Secretary’s Standards may be exempt from further review under CEQA, pursuant to California Code of Regulations, Title 14, § 15331. (C) No changes shall be made to approved plans for which an initial review administrative clearance for historic appropriateness has been completed without resubmitting the revised plans to the Director or his or her designee for review and approval.
(D) All initial reviews completed in accordance with this section shall expire one year from the date of effectiveness unless work is started within that time.
(E) If the Director or his or her designee determines that proposed work involving a cultural resource could result in a change of design, material, or appearance of character-defining features or could have the potential to conflict with the Secretary’s Standards, the Director or his or her designee may refer the project and the initial review to the Commission. (Ord. 636-C.S., passed 8-15-17)
§ 153.617
INITIAL REVIEW BY COMMISSION, MAJOR ALTERATIONS–PROCEDURES. (A)
Application.

The owner or authorized representative proposing major alterations to a cultural resource listed on the Register shall file an application for an initial review. The application must be accompanied by any required fee. (1) The application for an initial review shall include the following data:
(a) A description of the proposed work and an explanation of how it complies with the Secretary’s Standards and other applicable design guidelines and standards as appropriate. (b) Detailed architectural plans, including floor plans, elevations, and drawings, illustrating the scale, massing, character, and detailing of the proposed work, including existing and proposed elevations and plans. Information on the specifications and appearance of existing and proposed replacement materials and features should also be included. (c) A site plan showing all existing buildings and structures and the relationship of the proposed work to the surrounding environment.
(d) Relationship to the existing scale, massing, architectural style, site and streetscape, landscaping and signage, for new construction in historic districts.
(e) Other information deemed necessary by the Director or his or her designee. (2) Upon deeming the application to be complete, the Community Development Department shall transmit the application to the Commission within ten days of the receipt of a complete application. (3)
Early-stage conceptual review.

Prior to the hearing for an initial review, applicants shall have the opportunity to present for discussion with the Commission and/or city preservation staff early-stage, conceptual plans for alterations to cultural resources and new construction in historic districts. The purpose of conceptual review shall be to obtain preliminary comments and direction on project design and options prior to the initial review hearing. There is no fee for conceptual review. Conceptual review before the Commission shall be a discussion item (no finding or decision will be taken). (4)
Commission review
.

The Commission shall conduct a public hearing on each initial review application, after which it

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Issuance of initial review findings
.

Upon approval, copies of the initial review findings shall be forwarded to the applicant, the Building Official, the Director, and any other department or agency that requests one. (6)
Appeal
.

Decisions of the Commission or city regarding an initial review are subject to appeal in accordance with § 153.626 of this subchapter. No initial review shall become effective until the time to appeal its denial or approval has expired.
(7)
Public notice requirements.

All projects requiring an initial review subject to the Commission’s approval shall require public notification. The city shall, no later than ten days prior to the hearing, issue a public hearing notice indicating the place, date, and time of the Commission meeting and include a brief description of the proposed project. Public notification shall be provided as follows:
(a)
Hearing notice to applicant and owners.

Public notification shall be provided to the applicant, to all owners of real property as shown on the county’s latest equalized assessment roll, and to all legal occupants located within a 300-foot radius of the subject parcel upon which an initial review is requested. As determined by staff, an expanded notification may be required to 500 feet.
(b)
Hearing notice to owners of historic district properties . Public notification for any project proposed within a locally designated historic district or a district listed on the California Register shall be as follows: the public notification described in division (A) above, plus the owners of real property as shown on the county’s latest equalized assessment roll and to all legal occupants of each property located within the historic district. (Ord. 636-C.S., passed 8-15-17)
§ 153.618
INITIAL REVIEW BY COMMISSION, MAJOR ALTERATIONS–FINDINGS. (A) The following considerations shall guide the initial review by the Commission. (1) The Commission may approve or approve with conditions an initial review for projects involving major alterations to cultural resources that:
(a) Are compatible with the historic character and scale of the cultural resource, including its size, massing, proportions, orientation, architectural details, and the spatial relationships that characterize the property and its site; (b) Do not result in a change of design, material, or appearance of the property’s character-defining features (except those changes determined to be in compliance with the Secretary’s Standards, per division (A)(1)(c) below); (c) Comply with the Secretary’s Standards and any other applicable design guidelines adopted by the city and therefore are either mitigated to a less-than-significant impact on historical resources under CEQA (CEQA Guidelines [California Code of Regulations. Title 14] § 15064.5(b)(3)) or exempt from CEQA under Class 31, which applies to “projects limited to maintenance, repair, stabilization, rehabilitation, restoration, preservation, conservation or reconstruction of historical resources in a manner consistent with the Secretary of the Interior’s Standards for the Treatment of Historic Properties with Guidelines for Preserving, Rehabilitating, Restoring, and Reconstructing Historic Buildings (1995), Weeks and Grimmer” (CEQA Guidelines [California Code of Regulations Title 14] § 15331); (d) Will not cause a substantial adverse change in the significance of a cultural resource in accordance with CEQA; (e) Are consistent with the goals and policies of the General Plan; and (f) Are consistent with the provisions of this subchapter. (2) No changes shall be made to approved plans for which an initial review was completed without resubmitting the revised plans for Commission review.
(3) All initial reviews completed in accordance with this section shall expire one year from the date of effectiveness unless work is started within that time.
(Ord. 636-C.S., passed 8-15-17)
§ 153.619
SAN GABRIEL INVENTORY AND THE INITIAL REVIEW–REQUIREMENT. (A)
Purpose.

No person shall carry out or cause to be carried out any major alteration or relocation of a potential cultural resource listed on the Inventory unless the city has first completed an initial review in accordance with the requirements of this subchapter. The approval or denial of the proposed work involving Inventory-listed cultural resources shall be deemed a discretionary action under CEQA (California Code of Regulations, Title 14, § 15002(i). (B)
Actions requiring an initial review.

The following actions shall require an initial review from the Director or his or her designee. The Director may refer some initial reviews for Inventory resources to the Commission for action. Performance of any work that falls within the provisions of this subchapter without an initial review is prohibited. (1) Major alterations or relocation of a cultural resource listed on the Inventory; (2) New construction within a historic district listed on the Inventory; (C) The Director shall develop procedures and findings associated with the completion of an initial review for Inventory

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(Ord. 636-C.S., passed 8-15-17)
§ 153.620
RELOCATION OF DESIGNATED CULTURAL RESOURCES.
(A)
Purpose.

Relocation has the potential to adversely affect the significance of cultural resources and is discouraged.

Should relocation of a Register-listed cultural resource be necessary, this section outlines the process and criteria for issuance of a certificate of appropriateness for relocation. (B)
Procedure.

The Director or his or her designee shall review applications for relocating Register-listed cultural resources. At the discretion of the Director, relocation applications can be submitted to the Commission for review. (C)
Criteria for relocation
. Relocation shall be permitted only when relocation is consistent with the goals and policies of the General Plan, this subchapter, and applicable area or specific plans, and only when all of the following findings can be made by the Director or Commission:
(1) Relocation will not significantly change, destroy, or adversely affect the historic integrity of the cultural resource; (2) Relocation will not have a significant adverse effect on the character of the historic district or neighborhood, or surrounding properties where the cultural resource is located or at the location of its receiver site; (3) The original site and the proposed receiver site are controlled through ownership, long-term lease, or similar assurance by the person(s) proposing relocation, to the Commission’s approval; and (4) The relocation is necessary to correct an unsafe or dangerous condition on the site and no other measures for correcting the condition have been determined feasible, or the relocation is necessary to preserve the cultural resource and all other feasible options for preservation on the original site have failed, as determined by the Director or Commission. (D)
Relocation timing
. The cultural resource shall not be relocated until all appropriate entitlements have been obtained. (E)
Relocation plan
. Relocations shall follow a plan approved by the Commission or Director and include the following:
(1) Application for relocation shall be made on a form provided by the Director. (2) The Commission shall hold a noticed public hearing and make a determination to approve or deny the permit. (3) The Commission shall not grant an approval for the relocation of a listed historic resource unless the criteria for relocation have been met.
(Ord. 636-C.S., passed 8-15-17)
§ 153.621
CERTIFICATE OF DEMOLITION.
(A)
Purpose.

This section describes the process for obtaining a certificate of demolition for any property listed on the Register or Inventory. No permit shall be issued by the city or staff designee to demolish a property included on the Register or Inventory without first obtaining a certificate of demolition. The approval or denial of the certificate of demolition shall be deemed a discretionary action under CEQA (California Code of Regulations, Title 14, § 15002(i)). Penalties for noncompliance with the provisions of this subchapter are described in § 153.629 (Enforcement and Penalties).
(B)
Intent.

It is the intent of the city that cultural resources will not be demolished unless extraordinary circumstances exist. In keeping with the purpose of the General Plan and this subchapter, cultural resources merit protection in order to encourage their retention for the benefit and enjoyment of current and future generations. The following provisions are intended to establish reasonable measures to ensure that cultural resources are not inadvertently or unnecessarily destroyed and that all feasible alternatives to their demolition are explored. (C)
Compliance with federal and state laws.

Review of all applications for a certificate of demolition shall comply with applicable state and federal laws and regulations, including without limitation, CEQA, the National Historic Preservation Act and the National Environmental Policy Act.
(D)
Application materials
. All applications for a certificate of demolition will include:
(1) The demolition permit application, on a form prescribed by the Director; (2) If the cultural resource has been determined an imminent hazard, documentation from the Director, including documentation from a qualified structural engineer, as defined in § 153.603 (Definitions), describing the basis for this
determination;
(3) If the cultural resource has been determined to no longer meet the criteria for eligibility, documentation from a qualified architectural historian or historian as defined in § 153.603 (Definitions), describing the basis for this determination; (4)
Other materials as requested by the Director.

Such materials may include (but not be limited to) current photographs of the resource(s) for which the certificate of demolition is requested; a plot plan identifying the resource(s) proposed for demolition and any other buildings, structures or historic features on the property; and documentation of any claims by the applicant regarding the condition or costs for repair of the resource. (E)
One hundred eighty-day waiting period
. For any cultural resource not deemed an imminent hazard, the Director

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Procedure.
(1) Upon receipt of an application for demolition, a notice of intent to demolish, on a form approved by the Director, shall be prominently posted on the property.
(2) The Director or his or her designee shall review the application for demolition and confirm that all requested materials have been provided. Once deemed complete, the application will be scheduled for the next available Commission meeting.
(3) If the cultural resource proposed for demolition has been determined to be an imminent threat to public health, safety, and welfare by the City Building Official, the Director or his or her designee may approve or deny the request. (4) All projects requiring a certificate of demolition shall require public notification. The city shall, no later than ten days prior to the hearing, issue a public hearing notice indicating the place, date, and time of the Commission meeting and include a brief description of the proposed project. Public notification shall be provided as follows:
(a)
Hearing notice to applicant and owners
. Public notification shall be provided to the applicant, to all owners of real property as shown on the county’s latest equalized assessment roll, and to all legal occupants located within a 300-foot radius of the subject parcel upon which a certificate is requested. (b)
Hearing notice to owners of historic district properties.

Public notification for any project proposed within a locally designated historic district or a district listed on the California Register shall be as follows: the public notification described in division (F)(4)(a) above, plus the owners of real property as shown on the county’s latest equalized assessment roll and to all legal occupants of each property located within the historic district. (5) The Commission shall review the application, staff report, and hear evidence presented by property owners and members of the public to determine if the criteria for demolition approval have been met. The Commission shall approve, deny, delay the demolition for a specified period, approve with conditions, or continue the application to obtain additional information necessary to consider the demolition request. (6) If the demolition request is denied because it does not meet the aforementioned criteria, the applicant may request demolition approval based on a finding of economic hardship in accordance with § 153.623 of this subchapter;
(7) If the demolition request is denied, the owner or applicant may appeal the Commission’s decision in writing to the City Council within ten days of the Commission’s decision in accordance with § 153.626 of this subchapter.
(8) If a certificate of demolition approval is granted on any basis other than that of imminent hazard to public safety or economic hardship, the city will not issue a certificate of demolition approval until (1) Historic American Buildings Survey (HABS) or Historic American Engineering Report (HAER) documentation of the resource slated for demolition and its setting have been completed by a qualified architectural historian, historian, or historic architect as defined in this subchapter and (2) plans for the replacement structure have been approved by the Commission. The replacement plan must be in compliance with existing zoning, the city’s General Plan, any adopted neighborhood or specific plan for the area and applicable design guidelines. Vacant land or non-use will not constitute a valid replacement plan. (9) The Director or his or her designee will analyze the replacement plan for its conformance with the Secretary’s Standards and other city-level design guidelines as applicable and will prepare a report with recommendations. (a) The Commission will review the replacement plan and make a decision to approve, deny, approve with conditions or continue the matter with specific instructions as to what information is needed to make a decision on the request. (b) If the replacement plan is denied, the owner or applicant may appeal the decision of the Commission in writing to the City Council within ten days of the decision. The City Council will hear the appeal according to § 153.626 of this
subchapter.
(G)
Mandatory findings.

The city shall not issue a certificate of demolition for a cultural resource listed on the Register or Inventory unless the applicant has met all of the following conditions:
(1) The 180-day waiting period or other period of up to 180 days as required by the Commission has expired and all steps to explore alternatives to demolition, as described in § 153.621(E) have been explored to the Commission’s
satisfaction;
(2) Any deterioration of the cultural resource is not the result of the failure of the owner to maintain the property in accordance with §
153.613 of this subchapter;
(3) As a condition of approval, all permits have been granted for the replacement structure; (4) CEQA analysis has been conducted, and the owner has provided substantial evidence, as defined in CEQA (Cal.

Pub. Res. Code § 21080(e)), demonstrating that no feasible alternative exists that would avoid a significant adverse impact to the cultural resource.

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Proposed demolition of properties 45 years old or older. (1)
Purpose.

The Cultural Resources Chapter of the General Plan includes goals and targets intended to diminish “imminent threats to San Gabriel’s heritage” (Goal 11.4). Specifically, Target 11.4.1 specifies the creation of an ordinance that “provides protection against demolition.” This provision forwards this General Plan goal. (2)
Intent.

This section shall diminish imminent threats to properties that qualify as cultural resources but have not been subject to evaluation. The section describes the circumstances in which the Director or his or her designee shall prepare, or cause to be prepared, a historic resources assessment of any property proposed for demolition that is 45 years of age or older but not included on the Register or Inventory.
(3)
Applicability.

If a permit is sought to demolish a property that was constructed at least 45 years prior to the date of application for demolition, the application shall be referred to the Director to make a preliminary determination as to whether the property meets national, state, or local criteria for designation, if the property:
(a) Is not already listed on the Register or Inventory; (b) Is not the subject of a pending landmark nomination for the Register, either individually or as a contributor to a historic district.
(4)
Exception, properties within recently surveyed areas.

If the property proposed for demolition falls within an area of the city that was subject to a historic resource survey approved and adopted by the City Council within the last five years, and the property was not identified as a potential cultural resource, a historic resources assessment will not be required. (5)
Determination by Director.
(a)
Time limit and criteria.

Within a timely manner from receipt of an application to demolish a property under division (H) below, the Director or his or her designee will obtain a professional opinion from a qualified architectural historian or historian as defined in §
153.603 (Definitions) of this subchapter as to whether the property is potentially eligible for federal, state, or local listing. If the Director determines that the property is potentially eligible at the federal, state, or local level, he or she shall prepare, or cause to be prepared, with assistance from a qualified architectural historian or historian as defined in §
153.603 (Definitions) of this subchapter, an intensive-level historic resources evaluation (HRE) following practices promulgated by the State Office of Historic Preservation. (b)
Notice.

The Director shall notify the property owner of the determination of the HRE in writing within a timely manner. Failure of the Director to act within 60 days shall be considered a determination that the property is not eligible for listing at the federal, state, or local level.
(c)
Determination and effect.

1. If, based on a negative finding of the HRE, the Director determines that the property is not eligible at the federal, state, or local level, the permit to demolish the property shall be issued without further restrictions under this subchapter.

2. If, based on a finding of the HRE, the Director determines that the property is potentially eligible at the federal, state, or local level, the Director shall schedule consideration of the HRE on the next available agenda of the Commission.

Following review of the HRE and concurrence by the Commission, the property shall be added to the Inventory and the provisions of §
153.621 shall apply to the proposed demolition.
(Ord. 636-C.S., passed 8-15-17)
§ 153.622
WORK HOLD PENDING DESIGNATION.
(A)
Work hold–pending historic landmark designation.

Except as necessary to correct an unsafe or dangerous condition pursuant to §
153.624, it shall be unlawful for any person to carry out or cause to be carried out any activity requiring an initial review on a proposed cultural resource for which an application has been filed, until final approval of the designation.

An exception to the work hold shall apply for alterations shown to comply with the Secretary of the Interior’s Standards for the Treatment of Historic Properties, as found through the project review process and criteria established in this subchapter. (B)
Work hold–pending historic district designation
. Except as necessary to correct an unsafe or dangerous condition pursuant to §
153.624, it shall be unlawful for any person to carry out or cause to be carried out any activity requiring an initial review for any property within the boundaries of a proposed historic district while an application for designation is pending. An exception to the temporary moratorium shall apply for alterations shown to comply with the Secretary of the Interior’s Standards for the Treatment of Historic Properties, as found through the project review process and criteria established in this subchapter.
(Ord. 636-C.S., passed 8-15-17)
§ 153.623
CERTIFICATE OF ECONOMIC HARDSHIP.
(A)
Purpose.

The city recognizes that there may be circumstances in which the provisions of this subchapter could create an undue economic hardship. This section describes the criteria and process for property owners to demonstrate that such a hardship exists. The City Council may issue a certificate of economic hardship to allow alteration or demolition of a cultural resource listed on the Register or Inventory where denial of the same would create an undue economic hardship upon the owner.

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Threshold
. For income-producing properties, the threshold for establishing economic hardship shall be that a reasonable rate of return cannot be obtained from the property in its present condition or if rehabilitated. For non-income- producing properties, the threshold for establishing economic hardship shall be that, without approval of the proposed demolition or remodel, the property owner would be deprived of all reasonable use of or return from the property. For proposed demolition, the commission must make the finding that the cultural resource cannot be remodeled or rehabilitated in a manner that would allow for a reasonable use of or return from the property. (C)
Applications.

An application for a certificate of economic hardship shall be subject to a pro forma evaluation completed for the city by a qualified economic professional selected from a list of qualified economic professionals to be maintained by the city. The application shall be made on the prescribed form and be accompanied by the following information. The following would be applicable, unless the Director makes the written determination that such information is not required:
(1) The estimated market value of the property in its current condition with supporting documentation. (2) The estimated market value of the property after completion of the proposed alteration or demolition with supporting documentation.
(3) Estimates of the costs of proposed alteration or demolition with supporting documentation. (4) In the case of demolition, the estimated market value of the property after renovation of the existing property for continued use and an estimate from a qualified historic architect as defined in § 153.603 (Definitions) as to the economic
feasibility of rehabilitation or reuse of the existing structure on the property. (5) A rehabilitation report from a qualified structural engineer or historic architect as defined in § 153.603 (Definitions) of
this subchapter as to the structural condition of the property and feasibility of stabilization and rehabilitation. (6) For income-producing properties, information on annual gross income, operating and maintenance expenses, tax deductions for depreciation, and annual cash flow after debt service, current property value appraisals, assessed property valuations, and real estate taxes.
(7) Remaining balance on any mortgage or other financing secured by the property and annual debt service, if any, for the previous two years.
(8) All appraisals obtained within the previous two years by the owner or applicant in connection with the purchase, financing, or ownership of the property.
(9) The amount paid for the property if purchased within the previous 36 months, the date of purchase, and the party from whom purchased, including a description of the relationship, if any, between the owner of record or applicant and the person from whom the property was purchased, and any terms of financing between the seller and buyer. (10) Any listing of the property for sale, rent, prices asked, and offers received, if any within the previous two years. (11) Any other information the Director may reasonably require in order to determine whether or not the property may yield a reasonable return to the owners.
(F)
Hearing required
. The City Council shall hold a public hearing on all applications for a certificate of economic hardship; after which it may approve, conditionally approve, or deny the application.

Such hearing may be held concurrently
with any related application for an initial review or certificate of demolition. (G)
Findings.

The City Council shall approve a certificate of economic hardship if it makes all of the following findings:
(1) Denial of the application would decrease the value of the subject property so as to deprive the owner of any reasonable economic return on the property.
(2) Sale or rental of the property is not financially feasible, when looking at the cost of holding such property for uses permitted in the applicable zone.
(3) Adaptive reuse of the property for lawful purposes is prohibited or impractical. (4) Denial of the application would damage the owner of the property unreasonably in comparison to the benefit conferred on the community.
(H)
Approval.
(1) Upon approval, copies of the certificate of economic hardship shall be forwarded to the applicant, the Building Official, the Director, and any other department or agency that requests one. (2) No certificate of economic hardship shall become effective until the time to appeal its approval has expired. (Ord. 636-C.S., passed 8-15-17)
§ 153.624
UNSAFE OR DANGEROUS CONDITIONS.
(A) None of the provisions of this subchapter shall be construed to prevent any construction, alteration, removal, demolition or relocation of a historic landmark or contributing resource necessary to correct the unsafe or dangerous conditions of any structure, or feature, or part thereof, where the Building Official, with a report from a qualified structural

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Only such work as is necessary to correct the
unsafe or dangerous condition may be performed pursuant to this section. All assessments shall utilize the California Historical Building Code and the Uniform Code for Building Conservation. (B) The Building Official shall inform the Commission and Director prior to authorizing any work pursuant to this subchapter unless he or she determines that such work is immediately necessary to correct the unsafe or dangerous condition; in which case, the Building Official shall report his or her actions to the Director within 48 hours and to the Commission at its next regular meeting.
(C) If work authorized by the Building Official pursuant to this subchapter is not immediately necessary to correct the unsafe or dangerous condition, the Commission may advise the Building Official of the historic significance of the building and recommend a reasonable period of postponement for the purpose of arranging for rehabilitation, relocation, documentation, and/or salvage of the cultural resource or contributing resource.

Notwithstanding the foregoing, if no
arrangements have been made for rehabilitation, relocation, or salvage within 60 days of an order to abate a nuisance, or an earlier time if determined to be necessary by the Building Official, the Building Official may proceed with the abatement action.
(Ord. 636-C.S., passed 8-15-17)
§ 153.625
ENVIRONMENTAL REVIEW.

If any action required or taken pursuant to this subchapter is subject to the provisions of CEQA, the time in which such action must be taken shall be extended to the extent necessary to allow time to comply with the Act. (Ord. 636-C.S., passed 8-15-17)
§ 153.626
APPEALS.
(A) The owner of a property subject to review, or the applicant, if different than the owner, may appeal any decision by the Director or Commission under this subchapter pursuant to the limitations and procedures in Title XV, § 153.004 of this
code. All appeals brought under this section shall be accompanied by a filing fee following a fee structure established by the City Council.
(B) Any decision regarding a cultural resource by the Director shall become final ten business days following the date of the decision unless an appeal to the Commission is filed. (C) Any decision of the Commission regarding a cultural resource shall become final ten business days following the date of the decision unless an appeal to the City Council is filed. (Ord. 636-C.S., passed 8-15-17)
§ 153.627
PRESERVATION INCENTIVES.
(A)
Purpose.

The City Council may by resolution or ordinance adopt preservation incentives to encourage the designation, preservation, maintenance, and appropriate rehabilitation of the city’s cultural resources. Preservation incentives, in the form of financial and regulatory incentives, shall be made available to owners of properties that are designated cultural resources, either individually or as contributors to historic districts, and listed in the San Gabriel Register of Cultural Resources.
(B)
Financial preservation incentives
. The following financial incentives shall be made available to owners of designated cultural resources, in a process to be determined by the Director:
(1)
Waiver of initial review for historic appropriateness/administrative approval fees . All fees associated with the
completion of an initial review for historic appropriateness shall be waived for designated cultural resources. (2)
Mills Act historic property contracts
. Through the Mills Act historic property contract program, the city allows owners of designated cultural resources to receive a reduction in property taxes in exchange for a commitment to complete specific repair, restoration, and/or rehabilitation project and on-going maintenance in accordance with the Secretary’s Standards and other applicable design guidelines and criteria. The City Council, on the advice of the Director and Commission, shall periodically review and update the application process, criteria, and procedures for Mills Act contracts, by resolution or ordinance. The Mills Act was adopted by the city by resolution on August, 21, 2001 (Resolution No. 01-31). The state-level enabling legislation for the Mills Act program is contained in Cal. Gov’t Code §§ 50280 through 50290. (3)
Preservation easements.

Preservation easements may be acquired by the city through donation or purchase. The preservation easement would be accepted and administered by a state or local 501(c)(3) organization dedicated to historic preservation. The easement would specify the conditions and restrictions running with the land designed to preserve and maintain the cultural resource.
(C)
Regulatory preservation incentives
. Designated cultural resources are eligible for the following regulatory preservation incentives, which are intended to encourage the preservation and ongoing use of the city’s cultural resources.

The following incentives shall be made available to owners of designated cultural resources, in a process to be determined by the Director:

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California Historical Building Code.

The California Historic Building Code (Title 24, Part 8, California Administrative Code) shall guide upgrades and alterations to designated cultural resources. (2)
Transfer of development rights
. Through the transfer of development rights (TDR) program, the City Council may by resolution approve the sale of unused development rights from designated cultural resources (sender sites) to development sites (receiver sites). Before any transferable development rights are offered for sale, the city shall establish by resolution the criteria, procedures, and public process, through the city’s formal bidding procedures, to sell unused floor area development rights from sender sites to receiver sites. TDR policies and procedures will be periodically reviewed and updated as needed by the city.
(3)
Exemption from design review.

Design review shall be carried out concurrently by the Historic Preservation and Cultural Resource Commission for the following projects:
(a) All major alterations to designated cultural resources, including individually listed properties and contributors to historic districts;
(b) New construction and in-fill within the boundaries of designated historic districts; (c) All new construction, additions to, and alterations of a parcel including a designated cultural resource, whether individually listed or a contributor to a historic district. (4)
Exemption for nonconforming uses
. On a case by case basis, a preexisting nonconforming use or site condition may be changed to a permitted use or site condition at the discretion of the Director, if the exemption encourages the retention and ongoing viable use of a designated cultural resource. (5)
Reduction of commercial parking requirements
. At the discretion of the Director, commercial properties included on the Register may be granted a reduction in parking requirements, to a maximum of 50%, based on the degree to which the historic character of the cultural resource would be preserved, enhanced, or made more viable through the reduction in parking requirements.
(6)
Residential waiver for garage space requirement.
(a) Residential properties included on the Register may be granted a waiver of the requirement for an additional covered parking space for additions of more than 25% of the existing gross floor area (§ 153.049, Zoning Code, Garage
Space Required). Waiving the requirement for additional covered parking spaces encourages the retention and protection of historic garages and carports, which contribute to the historic character and integrity of historic districts and conservation overlay zones.
(b) This section allows the Director to waive the requirement for an additional covered parking space where the Commission first determines through the certificate of appropriateness approval process that:

1. The property has an existing historic garage or carport that is a contributing element of the cultural resource;

2. The existing historic garage or carport can accommodate at least one vehicle;

3. The existing historic garage or carport is structurally sound or, if deteriorated, the Commission approves a rehabilitation plan for the historic garage or carport as part of the certificate of appropriateness approval process;

4. The second required parking space can be accommodated outside of the existing covered parking space within an existing legal driveway or tandem space;

5. The cumulative addition to the historic property is less than 50% of the existing floor area;

6. The additional living space does not include a new dwelling unit on the property. (Ord. 636-C.S., passed 8-15-17

; Am. Ord. 679, passed 10-19-21
)
§ 153.628
APPLICATION FILING FEES.

The City Council shall by resolution adopt a schedule of fees to be charged for any application for designation, termination of a designation, for demolition permits, and for appeals pursuant to this subchapter. (Ord. 636-C.S., passed 8-15-17)
§ 153.629
ENFORCEMENT AND PENALTIES.
(A) Any person who violates a requirement of this subchapter or fails to obey an order issued by the City Council, Commission and/or Director, or fails to comply with a condition of approval of any certificate or permit issued under this subchapter, shall be subject to enforcement actions as set forth in § 153.005 (Violations) of this code.
(B) In addition to all other remedies available to the city, any alteration or demolition of a cultural resource in violation of this subchapter is expressly declared to be a nuisance and may be abated as deemed appropriate by the city. (C) In addition to all other remedies, the city shall have the authority to impose a temporary moratorium on the development of a property for a period not to exceed 60 months from the date the city becomes aware of any alteration or demolition in violation of this subchapter, unless the owner obtains permits to restore or reconstruct the property to its original condition prior to the violation and the work is consistent with the Secretary’s Standards.

The purpose of the

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This civil remedy shall
be in addition to, and not in lieu of, any criminal penalties available. (F) In addition to any other remedies provided herein, any violation of this subchapter may be enforced by civil action brought by the city. Remedies under this subchapter are in addition to and do not supersede or limit any and all other remedies or penalties, whether civil or criminal.

The remedies provided herein are cumulative and not exclusive. In any such action, the city may seek as appropriate, one or both of the following remedies:
(1) A temporary or permanent injunction, or both;
(2) Assessment of the violator for the costs of any investigation, inspection, or monitoring survey that led to the establishment of the violation, and for the reasonable costs of preparing and bringing legal action under this division (F). (Ord. 636-C.S., passed 8-15-17)
§ 153.630

IDENTIFICATION, DOCUMENTATION, AND MANAGEMENT OF ARCHAEOLOGICAL, NATIVE AMERICAN, AND PALEONTOLOGICAL RESOURCES.
(A)
Purpose
. In keeping with the goals and policies of General Plan Chapter 11 (Cultural Resources), this section outlines the procedures and criteria for the identification, documentation, and management of archaeological, Native American, and paleontological cultural resources.
(B)
Scope and applicability
.
(1) Potential project impacts to those cultural resources that are significant archaeological, Native American, and paleontological resources shall be addressed during project review as described in this section. This shall be accomplished through the identification of potential significant cultural resources (Phase I), the evaluation of those resources’ significance (Phase II), and, where necessary and appropriate, the mitigation of substantial adverse impacts through data recovery/salvage (Phase III) by qualified professionals as defined in § 153.603 of this subchapter.
(2) The provisions of this policy shall apply to all activities including but not limited to proposed structures, expansions, additions, alterations, grading, excavation, trenching, and/or demolition on properties containing archaeological, Native American, or paleontological resources classified as follows:
(a) Listed on the Register or Inventory;
(b) Listed on the California Register of Historical Resources or on the National Register of Historic Places; (c) Determined by the Director or the State Historic Preservation Officer to be eligible for listing on the California Register of Historical Resources, the National Register of Historic Places, or the Register; (d) Or are located in areas with a high or medium potential for the presence of cultural resources; in order to make this determination, the city shall prepare or cause to be prepared a cultural resource sensitivity map. (C)
Report preparation.
(1) All development applications satisfying the above criteria shall be required to submit a Phase I cultural resources inventory report and/or a paleontological resources inventory report to the city as a part of their application. Applications for properties that contain potential cultural resources that have not been evaluated for significance shall be required to submit a Phase II cultural resources evaluation report to the city as part of their application. A development application shall not be considered complete until said report(s) as required by this subchapter is submitted to the city. (2) If the Director determines that the proposed project could potentially affect a known or suspected cultural resource adjacent to the project site, then the applicant will be required to submit a Phase I cultural resources inventory report in order to determine whether the project has the potential to impact the cultural resource. (3) Cultural resources reports and paleontological resources reports shall be the responsibility of the applicant. The reports shall be prepared by qualified archaeologists or paleontologists as defined in § 153.603 of this subchapter.
(4) Cultural resources reports shall be prepared in a standard format: the California Office of Historic Preservation Archaeological Resource Management Reports (ARMR): Recommended Contents and Format. All cultural resources reports and appended resource records shall be filed with the local California Historical Resources Information System (CHRIS) Information Center.
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Attachment: Attachment 5_SWCA Historic Preservation Ordinance Review and Recommendations (4556 : Colton General Plan Cultural Resources Update map of the project location, as well as descriptions of the author’s qualifications; the criteria used to evaluate the property; the study’s methods, limitations, and dates of investigation; background materials consulted; the study’s results, including a map and quantified list of identified paleontological resources identified on the property; and the name of the facility where any recovered paleontological resources will be curated. (6) The report shall include a description and map indicating location of specific sites, features, isolates, and fossils analyzed within the report. The mapped location of archaeological sites, Native American resources, and fossil localities is confidential information, not to be released for public view. It is to be provided to the city as an appendix to the main report. (7) The city may prepare or commission the preparation of Cultural Resource Management Guidelines, in conjunction with a qualified archaeologist, in order to establish the specific requirements for identifying, recording, evaluating, and mitigating impacts to archaeological, Native American, and paleontological resources, and for the preparation of Phase I, Phase II, and Phase III reports and associated documentation. (D)
Exemptions.

The following applications shall be exempt from the requirements for submitting reports:
(1) Applications for a property for which a Phase I cultural resources inventory report and/or paleontological resources report has been accepted by the city within the last five years, provided that there were no significant errors in methodology or content as determined by the Director and that the application complies with any applicable mitigation requirements. (2) Projects that require a permit application that will not excavate deeper than 12 inches or excavate more than 50 cubic yards of earth, or those for which the Director, based on expert advice, has determined in writing, that the sediments to be disturbed do not have the potential to yield subsurface artifacts, archaeological features, or fossils. (3) Projects that are limited to repair and maintenance of existing facilities and/or utilities without ground disturbing activities that extend beyond the footprint of those facilities or utilities. (4) Projects that are ground level residential additions less than 500 square feet and are in accordance with § 153.630.
(E)
Review process.
(1) All development applications subject to the provisions of this section shall be reviewed in the following manner in order to effectively identify and evaluate any cultural resources that exist on the project site and to mitigate substantial adverse changes to their significance:
(2) The applicable preliminary report shall be submitted to the Director. The Director may take the following actions:
(a) If the report finds and the Director concurs that no significant cultural resources are present, the Director shall require that the project comply with on-site monitoring and mitigation (see division (F) below). The Director may direct the city to retain the services of a separate qualified archaeologist or a qualified paleontologist to provide an independent review of these findings.
(b) If the report identifies the presence of archaeological, Native American, or paleontological resources, the Director shall refer the report for consideration to the Commission. (3) The Commission, in reviewing the development proposal, shall evaluate the report and incorporate mitigation conditions for the project in order to preserve any known or identified significant archaeological, Native American, or paleontological resources.
(4) Any conditions or mitigation measures required by the Director or Commission shall be forwarded to the Building and Safety Division and enforced in accordance with Cal. Pub. Res. Code § 21081.6. (5) All decisions of the Director may be appealed to the Commission, and all decisions of the Commission may be appealed to the City Council in accordance with §
153.626 of this subchapter.
(F)
On-site monitoring and mitigation (archaeological/Native American resources). (1) The Building and Safety Division shall be provided with an executed consultant services contact with the individual responsible for supervising onsite archaeological monitoring, who shall be a qualified archaeologist selected from approved list of qualified archaeologists to be maintained by the city. (2) In instances, due to known or expected existence of subsurface Native American resources or as an outcome of Native American consultation, the consulting archaeologist or the Director may request that a Native American monitor be present on-site during grading operations. If so requested, a qualified Native American monitor shall be retained by the project applicant.
(3) If unanticipated subsurface cultural resources are discovered at the site, the archaeologist shall take immediate steps to stop all construction activity within 25 feet of the cultural material. The Director shall be immediately informed of the situation. If it is determined that the find is an isolated occurrence or that the remaining construction activity will not significantly impact the cultural resource, work shall be permitted to continue on the site. A report by the qualified archaeologist shall be submitted prior to the final inspection of the site, detailing the contents of the unearthed cultural resource.
(4) In the event of an unanticipated discovery of cultural resources when neither an archaeologist nor Native American monitor is on site, the information is to be communicated to the Director at once. In the event that the discovery includes potential human remains, Cal. Health and Safety Code § 7050.5 and Cal. Pub. Res. Code § 5097.98 shall be followed.

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(a) Determine that the find is not significant and allow work to resume. (b) Determine that additional testing is necessary to evaluate the significance of the find. If additional testing is determined necessary, similar procedures as defined in divisions (F)(4) and (5) above shall be followed. (c) Determine that the proposed project will not significantly affect the cultural resource and that it can be documented and left in situ without compromising the integrity of the cultural resource. (d) Forward a recommendation to the City Council to initiate data recovery procedures or protect the artifacts in situ. (8) If the Commission forwards a recommendation of either data recovery or protection in situ that conflicts with currently approved plans, the item shall be scheduled for consideration at the next meeting of the City Council as an urgency item. The decision of the City Council shall be considered final. (9) In the event that an unanticipated discovery of cultural material is made, all expenses related to work performed shall be reimbursed by the permit applicant.
(10) Whether cultural material is discovered or not, all monitors (archaeologists and Native American) shall submit a written summary of their services and observations.
(11) Prior to the issuance of any permit or action to proceed for the demolition of a cultural resource, the owner may be required to allow for the removal of significant features. The owner shall make these features available to local historic interest or Native American groups. The expense of the removal and storage of recovered features is to be borne by the historic interest or Native American groups. The owner may also be required, as a mitigation measure for any proposed demolition or alteration of a cultural resource, to document the cultural resource through photographs and historic narrative.

These records will become the property of the city.
(G)
On-site monitoring and mitigation enforcement (Paleontology). (1) The Building and Safety Division shall be provided with an executed consultant services contract with the individual responsible for supervising on-site monitoring, who shall be a qualified paleontologist from an approved list of qualified paleontologists to be maintained by the city to be present on-site during grading operations. (2) If paleontological material is present on the site, the qualified paleontologist shall submit a report describing the fossils that exist on the site. Said report shall include a statement on the significance of the discovery and recommended actions. If the paleontologist finds that the find is not significant, the Director may allow construction to proceed. (3) On the Director’s recommendation, reports relating to the discovery of significant paleontological resources shall be referred to the Commission at their next available meeting. Notice of the hearing by the Commission shall be given not less than ten days prior to any action taken on the matter to be considered. Such notice shall include the date, time, and place of the hearing and description of the matter under consideration. Notice of the hearing shall also be sent to the property owner(s) of record and to other persons who have requested to be notified of such matters, or whom the Director or his or her designee determines may have an interest in the matter. (4) The Commission, after considering the contents of the report, its recommendations, and review of testimony by interested individuals or groups, may take the following actions:
(a) Determine that the find is insignificant and allow work to resume. (b) Determine that additional study is necessary to evaluate the significance of the fossils. Said study and report to be submitted within 30 days.
(c) Forward a recommendation to the City Council to initiate fossil salvage procedures or protect the fossils in situ. (5) If the Director forwards a recommendation of either fossil salvage or protection in situ, the item shall be scheduled for consideration at the next meeting of the City Council. The decision of the City Council shall be considered final. (6) Whether source material is discovered or not, a written report shall be prepared by all paleontological monitors summarizing their services and observations.

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Consultation with California Native American groups.

California Native American tribes traditionally and culturally affiliated with San Gabriel may have expertise concerning their Native American resources, and consultation with these groups is a required element of compliance with CEQA (Cal. Pub. Res. Code § 21080.3.1). (Ord. 636-C.S., passed 8-15-17)
§ 153.631
SEVERABILITY OF PROVISIONS.

Should any section or provision of this subchapter be declared by a court of competent jurisdiction to be invalid, such decision shall not affect the validity of this subchapter as a whole or any section thereof other than the section or provision specifically declared to be invalid.
(Ord. 636-C.S., passed 8-15-17)
§ 153.999
PENALTY.
(A) Any person who violates any provision of this chapter for which no penalty is otherwise provided shall be guilty of a misdemeanor and shall be punished by a fine of not more than $1,000 or by imprisonment for a period not exceeding six months, or by both such fine and imprisonment.
(B) Violation of any provision of §§
153.320 through
153.333 is hereby determined to constitute an infraction, punishable by a fine not exceeding $100 for a first violation, a fine not exceeding $200 for a second violation of the same section within a 12 consecutive month period, and a fine not exceeding $500 for each additional violation of the same section within a 12 consecutive month period. A fourth violation within a 12 consecutive month period shall constitute a misdemeanor. ('65
Code, § 9-3.2415)
(Ord. 445-C.S., passed 5-16-95)
(C) Any person who violates any provision of §§
153.350 through
153.357 or fails to comply with a condition of approval of a precise plan as approved by the Planning Commission or City Council shall be guilty of a misdemeanor and be subject to the penalties prescribed by state law.
('65 Code, § 9-3.2508)
(Ord. 351-C.S., passed
- - )

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APPENDIX B:

California Office of Historic Preservation,
Department of Parks & Recreation, Technical
Assistance Series 14, “Drafting Effective
Historic Preservation Ordinances”

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California Office of Historic Preservation
Department of Parks & Recreation
1416 9th St,
Rm 1442-7
Sacramento CA 95814
PO Box 942896
Sacramento CA
94296-0001
phone:
(916) 653-6624
fax:
(916) 653-9824
email:
[email protected]
website:
www.ohp.parks.ca.gov
Drafting
Effective
Historic
Preservation
Ordinances

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DRAFTING EFFECTIVE
HISTORIC PRESERVATION ORDINANCES:

A MANUAL FOR CALIFORNIA’S LOCAL GOVERNMENTS
TECHNICAL ASSISTANCE BULLETIN #14
Prepared by

CLARION ASSOCIATES, LLC
1700 Broadway, Suite 400
Denver,
Colorado 80290
(303) 830-2890
for the

OFFICE OF HISTORIC PRESERVATION

STATE OF CALIFORNIA

DEPARTMENT OF PARKS AND RECREATION

WITH A GENEROUS GRANT FROM THE CALIFORNIA STATE PARKS FOUNDATION

EDITED BY

OFFICE OF HISTORIC PRESERVATION LOCAL GOVERNMENT STAFF

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Technical Assistance Bulletin #14 is intended to assist Calif ornia’s local governments in creating or revising a historic preservation ordinance. It identifies key issues that all communities must deal with when drafting or revising an ordinance, and discusses various approaches to each of these key iss ues, thus allowing each community to craft an ordinance that best fits their own preservation goals and local conditions.

This publication has been financed in part with Federal funds from the National Park Service, Department of the Interior, under the National Historic Preservation Act of 1966, as amended, and administered by the California Office of Historic Preservation. The contents and opinions do not necessarily reflect the views or policies of the Department of the Interior, nor does the mention of trade names or commercial products constitute endorsement or recommendation by the Department of the Interior. Under Title VI of the Civil Rights Act of 1964 and Section 504 of the Rehabilitation Act of 1973, the U.S. Department of the Interior strictly prohibits unlawful discrimination on the basis of race, color, national origin, age, or handicap in its federally- assisted programs. If you believe you have been discriminated against in any program, activity, or facility as described above, or if you desire further information, please write to Office for Equal Opportunity, U.S. Department of the Interior, National Park Service, Box 37127, Washington DC 20013-7127.

Revised June 2005

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TABLE OF CONTENTS
INTRODUCTION ............................................................................................... 1 Purpose of this Manual ...................................................................................... 2 Key Elements of a Local Preservation Ordinance ........................................... 2 SECTION 1: PURPOSE ..................................................................................... 5 SECTION 2: ENABLING AUTHORITY ................................................................ 10 SECTION 3: ESTABLISHMENT OF THE PRESERVATION COMMISSION ..................12 Composition...................................................................................................... 12 Scope of Powers............................................................................................... 16 Final Review Authority..................................................................................... 20 Disclosure of Pecuniary and Personal Interests ........................................... 22 SECTION 4: PROCEDURES AND CRITERIA FOR DESIGNATING HISTORICAL RESOURCES................................................................................................. 24 Surveys and Studies ........................................................................................ 24 Criteria for Designating Historical Resources ............................................... 26 Designation Procedures: Notice and Hearing Requirements....................... 31 : Owner Consent...................................................... 35 Designation Procedures Integrating Historic Preservation into the Zoning Ordinance....................... 37 Special Considerations in Establishing Regulated Areas ............................ 38 Alternative Forms of Protection: Conservation Districts and Conservation Easements.............................................................................................. 47 SECTION 5: PROCEDURES AND CRITERIA FOR ACTIONS SUBJECT TO REVIEW ...50 Determining the Appropriate Level and Amount of Review ......................... 50 Drafting Appropriate Review Standards......................................................... 51 Procedures for Reviewing Certificates of Appropriateness (COAs)............ 54 Allowing Staff-Level Reviews.......................................................................... 56 The Takings Issue in Preservation Law.......................................................... 57 CEQA and Historic Preservation..................................................................... 60 SECTION 6: CONSIDERATION OF ECONOMIC EFFECTS .....................................67 Economic Incentives........................................................................................ 67 Education and Technical Assistance ............................................................. 69 Economic Hardship.......................................................................................... 70 Current Economic Return................................................................................ 70

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Owner's Bona Fide Attempt to Rent or Sell Property.................................... 71 Feasibility of Profitable Alternative Uses ....................................................... 72 Certificates of Economic Hardship ................................................................. 73 SECTION 7: APPEALS ................................................................................... 76 SECTION 8: ENFORCEMENT ........................................................................... 79 Remedies for Noncompliance ......................................................................... 79 Maintenance and Upkeep of Historic Properties ........................................... 82 Development Moratoria and Emergency Demolition Bans........................... 88 SECTION 9: DEFINITIONS AND SEVERABILITY .................................................. 92 Definitions......................................................................................................... 92 Severability ....................................................................................................... 94 CONCLUSION................................................................................................ 95 ORDINANCE REVIEW CHECKLIST ................................................................. 95

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INTRODUCTION
A local preservation ordinance should be just one part of a multi-faceted, comprehensive program aimed at protecting all of the community’s historic resources.

Such a program should rely on both regulatory and non-regulatory techniques in coordination with other local laws and programs. From a legal perspective, if a local government can demonstrate that it has made preservation part of its overall effort to foster and promote the general welfare and well-being of the community as a whole, the local preservation ordinance stands a better chance of surviving judicial scrutiny. From a practical standpoint, a comprehensive preservation program not only gives the local government greater access to federal and state funding and greater leverage over federal projects that affect historic properties and areas; it can also inject an element of certainty into the local development regulatory process, thereby fostering needed and compatible economic development, while preserving the community’s historic and cultural values.

While the elements that constitute a comprehensive preservation program will vary greatly by jurisdiction, there are a few features common to all, including preparation of reliable background studies or historic contexts and surveys, economic assistance, and education and technical assistance. Many people have questions about the legal and practical framework for historic preservation activities in their community. For instance, there may be confusion about how the National Register of Historic Places relates to local and state activities and whether national listing, by itself, imposes any special requirements on property owners. Often, there are common perceptions about the extent of the local government’s regulatory reach — just what actions may the city deny or delay?
For these reasons, an important part of a comprehensive preservation program should be educational and outreach efforts to educate homeowners, developers, and others about why historic resources are significant in the community, and what steps the city is taking to protect those resources. The education effort might target specific audiences with information that will be useful to them; the real estate community, for example, may wish to understand better any impacts that historic regulation will have on local home sales prices. Several cities, such as Seattle and Cincinnati, have set up special offices to advise owners and developers about rehabilitation plans.

In California, many current preservation ordinances (e.g., San Francisco, Oceanside, Oakland) note that it is the purpose and duty of the preservation commission to promote the preservation program. In many cases, California preservation boards produce and disseminate informational materials regarding their ordinances and the benefits of the program. The preservation board may also, as part of its educational mission, field questions and provide advice to specific property owners, particularly those with properties that are candidates for designation.

Notwithstanding the publicity often given demolition battles, they are not the norm.

Effective education and outreach programs can help inform the public about the many Drafting Historic Preservation Ordinances
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benefits of preservation, and thus can help build support for voluntary compliance with preservation ordinances. The education process can both explain the specific mechanics of the protections afforded by the ordinance, and also can help citizens understand the local history and why historic resources are worth preserving.

Recent estimates suggest that at least 250 to 300 governments in California have enacted an historic preservation ordinance. Many of these ordinances, such as the ones from San Francisco and Los Gatos, have been in place for several decades or more, and community leaders frequently reevaluate and fine-tune key provisions to better achieve their preservation objectives. Other California communities are just beginning to develop ordinances for the first time, using laws from other cities and towns as models.

PURPOSE OF THIS MANUAL
This manual is intended to assist California’s local governments in creating or revising a historic preservation ordinance. The goal of this manual is not to present a model ordinance, nor to suggest a one-size-fits-all approach to the drafting process. All communities have different goals for their preservation programs, based on widely varying factors such as the types of historical resources they want to protect, the degree of protection they want to offer through an ordinance, and local development pressures.

Instead, the manual identifies key issues that all communities must deal with when drafting or revising an ordinance. For instance, how should the preservation commission be appointed? What standards of review should apply to certificates of appropriateness? Should property owners be given the opportunity to veto historic designation? How do you prevent demolition of historical resources by neglect? The intent of this manual is to discuss various approaches to each of these key issues, thus allowing each community to craft an ordinance that best fits their own local conditions.

KEY ELEMENTS OF A LOCAL PRESERVATION ORDINANCE
While each preservation ordinance should be unique and tailored to the needs of the individual community, there nevertheless are certain basic components found in most effective preservation ordinances throughout California (and the country). A capsule summary of each of these common elements is listed below. The sections listed below correspond to each of the subsequent sections of this manual.

SECTION 1: PURPOSE
Understanding local preservation goals is a crucial first step in the drafting process, and every preservation ordinance should begin with a clear and succinct purpose statement. Why preserve historic buildings? What does the community hope to accomplish by regulating the appearance of new construction in historic areas? This manual presents a set of questions that are designed to assist communities in defining their preservation goals.

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SECTION 2: ENABLING AUTHORITY
The ordinance should identify the legal authority by which it is able to regulate historic buildings and historic areas. This manual discusses the state and federal legal framework for preservation in California.

SECTION 3: ESTABLISHMENT OF PRESERVATION COMMISSION
The ordinance must identify the local entity charged with administering and enforcing the ordinance and list their specific responsibilities. In many cases the preservation commission is a separate decision-making body within the local government. In other cases the city council or its equivalent may act in the capacity of a preservation commission. This manual reviews key issues to consider when drafting this crucial section.

For example, should the community require professional qualifications of preservation commission members? What types of activities should fall under the preservation commission’s jurisdiction? Should the commission have decision-making authority, or merely be advisory to some other body, such as a planning commission?
SECTION 4: PROCEDURES AND CRITERIA FOR DESIGNATION OF HISTORICAL

RESOURCES
What types of historical resources should be protected, and how? Should the ordinance consider both individual buildings and structures and also historic districts? What about archaeological resources? Clear criteria for the designation of historical resources are an essential feature of a preservation ordinance. This manual discusses the basic issues regarding designation procedures and criteria in detail. Other related topics that are covered include owner consent; designation of interiors; and alternatives to designation such as conservation districts.

SECTION 5: PROCEDURES AND CRITERIA FOR ACTIONS SUBJECT TO REVIEW Once a resource is designated, what types of activities that affect it should be regulated by the community? Local preservation commissions typically are granted some authority over demolition or major alteration of designated properties, and also new construction in historic areas. Within these general categories, there are many questions to consider. For example, should the community be able to say “no” to demolitions of historic properties, rather than just delay them?
SECTION 6: CONSIDERATION OF ECONOMIC EFFECT OF DESIGNATION OR

REVIEW OF ACTION
To ensure compliance with federal and state constitutional requirements, the ordinance should include a procedure allowing a property owner to make the case that, in some situations, enforcement of the ordinance will cause unusual and extreme economic hardship. This is analogous to the variance provisions of a standard zoning ordinance, which provide a Drafting Historic Preservation Ordinances
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“release-valve” in unusual cases where regulation of development and use of a property may potentially rise to the level of an unconstitutional “taking.” From a policy perspective, it may also be desirable to allow for some degree of flexibility within a preservation ordinance in order to encourage rehabilitation and economic use of the property, to avoid making “mothballing” of regulated properties the result of historic preservation efforts.

SECTION 7: APPEALS
How are decisions made under the ordinance appealed, and to whom? A defined appeal process provides a local administrative resolution to numerous claims that might otherwise spur litigation in the immediate aftermath of a decision by the preservation commission.

SECTION 8: ENFORCEMENT
The most well-crafted preservation ordinance may be rendered ineffectual with weak enforcement provisions. How can the community ensure compliance with the ordinance? The manual outlines enforcement issues that communities should keep in mind when drafting or revising their ordinance.

SECTION 9: DEFINITIONS
A concise set of definitions helps to clearly establish the scope of regulation, particularly the type of structures and other features subject to designation and review and the specific actions that trigger review.

The following sections in this manual discuss each of the key ordinance components listed above. For all subjects, this manual first defines and explains the relevant issue, and then where applicable, presents sample excerpts from adopted ordinances to show how other California communities are addressing the issue. While these examples do not always represent the entire universe of possible approaches, nor do they necessarily represent the best approach for a particular community, they nevertheless have been selected to represent the range of approaches currently in use in California.

Note: For the purposes of this manual, historical resources also includes archaeological resources, sometimes referred to as cultural resources, and cultural landscapes.

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SECTION 1: PURPOSE
Understanding local preservation goals is a crucial first step in the drafting process, and every preservation ordinance should begin with a clear and succinct purpose statement.

Why preserve historic buildings? What does the community hope to accomplish by regulating the appearance of new construction in historic areas? Every preservation ordinance should be unique, and there are many reasons – cultural, economic, aesthetic, educational, and social – why a community might choose to adopt regulations to protect its historical resources. Regardless of the particular reasons chosen, the clear articulation of community goals is an important first step in the ordinance drafting process. Just as important, the community’s ability to adopt and enforce preservation regulations should be considered early in the drafting process. The following are suggestions of several key issues to be addressed:

What is the purpose behind an ordinance? Asking the question “Why preserve?” is a crucial first step in determining the form and scope of any preservation ordinance. • What are the reasons for preservation in the community? Is it important from an economic standpoint, or are the reasons mainly archaeological, architectural or historical? Most communities rely on multiple reasons to justify their preservation programs.
• Are there currently any threats to a particular historical or archaeological resource or district calling for immediate action? Are there future development pressures?
• Is there a general understanding of and sympathy toward preservation in the community? How is this reflected in neighborhoods, by business, or within the local government? Do citizens see a need for action to preserve historical resources?
• Has there been a failure to recognize historic preservation values in past development or planning efforts?
What resources should be protected? Next, the community must identify the specific types of historical resources that should be protected by asking the following types of questions:
• Does the community have only a few scattered buildings worth saving, or should the focus be broader – on districts and neighborhoods?
• Are there known archaeological sites that need to be protected? Has the community developed an archaeological preservation plan? • Has a survey of historical resources, including known and potential archeological resources, already been conducted, or must this information still be developed? • What features of historic buildings are important and worth preserving? Should the focus be on exterior facades only, or also on interior features? Drafting Historic Preservation Ordinances
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• Should historic plantings, cultural landscapes, or open space associated with archaeological
and historical resources be protected?
• Should the ordinance focus on new construction in historic or archaeologically sensitive
areas?
• Can the preservation ordinance be linked with neighborhood conservation? • What is the primary use of existing historical resources? Residential, commercial, industrial,
or a mix?
• Who owns the resources – homeowners, businesses, developers, charitable organizations,
or the government?
• What aspects of the community’s history and prehistory do the existing historical resources
reflect?
• In addition to historic residential buildings, neighborhoods and districts, are there also
historic business or industrial resources which need consideration and protection?
•
How should historical resources be protected? The community should consider the best way to protect historical resources.
• Are the important historic or architectural features of buildings in the community of
one style or type? Are they easily identifiable? Can clear and understandable standards and criteria for designation and permit review be devised? • Should the ordinance merely require delays prior to the demolition of historical resources,
or should the community be allowed to deny demolitions? • What is the current state of repair of historical resources in the community? Are they
in need of renovation, and if so, is it realistic to expect rehabilitation to occur? Is maintenance of existing structures a concern? • Where there are known archaeological sites or where there is likelihood for archeologic
al resources to be present, are there provisions for identifying and evaluating such resources, developing treatment plans and developing and enforcing mitigation measures?
How should the ordinance be administered and enforced? The ordinance should be drafted
to meet the goals of legal defensibility, effectiveness, administrative efficiency, and fairness to parties involved in the process.
• Who should be the primary body charged with administering and enforcing the ordinance?
The city council or board of supervisors? A separate preservation commission? Can the local government supply staff to support a new commission?
• What are the existing tools for regulating zoning and land use in the community? Do
preservationists have confidence in these existing mechanisms? Can preservation be integrated into the existing regulatory system? Will the local zoning board and planning commission be knowledgeable and sensitive to preservation goals? Should one of those bodies make final decisions? Drafting Historic Preservation Ordinances
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• What level of authority should staff have in making decisions under the ordinance?

• How will the ordinance be enforced? Does the local government have the capability
to monitor developments in the community, or will that task fall to preservationists?
• Is a strong preservation ordinance liable to be attacked? If so, would the local governmen
t be willing and able to defend it, or would that task fall to local preservationists?
• What kind of preservation-oriented talent is available in the community to assist in
achieving local preservation goals? Are there enough knowledgeable people to run yet another volunteer commission or advisory group? Only after these questions have been considered should the drafting of a new ordinance (or
the redrafting of an existing one) begin. Perhaps the most important thing to keep in mind is that each community is unique, and those drafting the ordinance should not feel constrained by what other cities and towns have done.

After considering the community’s goals and capabilities, the ordinance drafters must generate
a purpose statement for the ordinance. Such a statement is essential to set forth the local government’s reasons for enacting the preservation law, and to tie historic preservation efforts to available governmental authority. In exploring the role that preservation regulations will play in the community, local governments should strive to develop a comprehensive preservation program that goes further than simply approving an ordinance to control the demolition of historical resources. The City of San Jose, for example, articulates in its purpose section a broad intent to both preserve historic structures and review further development that will impact the positive qualities of that City’s historical resources (See excerpt below.).

From a legal perspective, if a local government can demonstrate that it has made preservation
part of its overall effort to foster and promote the general welfare and well being of the community as a whole, the local preservation ordinance stands a better chance of surviving judicial scrutiny. For example, the City of Davis enumerates the protection of visual character, the protection of property values, and the enhancement of economic benefits within its “Purpose” section to justify the exercise of regulatory power in its historic preservation ordinance (See excerpt below.).

The practical benefits of a broadly conceived and well-defended preservation program are
even more important. An effective preservation program will not only give local government access to federal and state funding and greater leverage over federal projects that affect historic properties and areas. It also can inject an element of certainty into the local development regulatory process, thereby fostering needed and compatible economic development. For more discussion of these issues, see the final section in this manual, “Developing a Comprehensive Preservation Program.” Drafting Historic Preservation Ordinances
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CALIFORNIA CODE EXCERPTS:

DEFINING LOCAL GOALS AND CAPABILITIES
A. To encourage public knowledge, understanding, appreciation, and use of the city's past;
B. To foster civic pride in the beauty and character of the city and in the accomplishments of its past;
C. To enhance the visual character of the city by encouraging new design and construction that complements the city's historical buildings; D. To increase the economic benefits of historic preservation to the city and its inhabitants;
E. To protect property values within the city;
F. To identify as early as possible and resolve conflicts between the preservation of historical resources/districts and alternative land uses; and G. To conserve valuable material and energy resources by ongoing use and maintenance of the existing built environment.

CITY OF SAN JOSE
Section 13.48.010 (Purpose [–Historic Preservation]).

A. The council of the city of San Jose hereby finds that in order to promote the economic and general welfare of the people of the city of San Jose, and to ensure the harmonious, orderly and efficient growth and development of the municipality, it is deemed essential by the council of the city of San Jose that the qualities relating to the history of the city of San Jose and a harmonious outward appearance of structures which preserve property values and attract tourists and residents alike be preserved; some of these qualities are the continued existence and preservation of historic districts and landmarks; continued construction of structures in the historic styles and a general harmony as to style, form, color, proportion, texture and material between buildings of historic design and those of more modern design; that such purpose is advanced through the preservation and protection of the old historic or architecturally worthy structures and neighborhoods which impart a distinct aspect to the city of San Jose and which serve as visible reminders of the historical and cultural heritage of the city of San Jose, the state, and the nation.

B. The purpose of this chapter is to promote the public peace, health, safety and welfare through the preservation of landmarks and districts and thereby stabilize neighborhoods and areas of the city; enhance, preserve and increase property values; carry out the goals and policies of the city's general plan, increase cultural, economic and aesthetic benefits to the city and its residents; preserve, continue and encourage the development of the city to reflect its historical, Drafting Historic Preservation Ordinances
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8 CITY OF DAVIS
Section 40.23.010 Purpose.

The purpose of this article is to promote the general welfare by providing for the identification, protection, enhancement, perpetuation, and use of improvements, buildings, structures, signs, features, sites, places, and areas within the city that reflect special elements of the city's historical, architectural, archaeological, cultural, or aesthetic heritage for the following reasons:

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architectural, cultural, and aesthetic value or tradition; protect and enhance the city's cultural and aesthetic heritage; and promote and encourage continued private ownership and utilization of such structures.

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SECTION 2: ENABLING AUTHORITY
Whether a community is revising an existing ordinance or starting from scratch, a prerequisite to any drafting effort should be a thorough understanding of the degree of local government authority available to adopt a preservation ordinance. In California, local governments enjoy broad authority to adopt preservation ordinances as part of their police power established in the state constitution, and also from specific state statutes.

Within the constitutional scheme of government in the United States, states are the primary holder of regulatory power over land within their borders. As is typical of many states, the California constitution grants every city and county the “police power,” which enables local governments to act to protect the health, safety, and welfare of their citizens.
1 In California (and elsewhere throughout the country), courts have made clear that land-use regulations, including zoning and historic preservation ordinances, are authorized under the public welfare component of the police power. Importantly, courts also have agreed that historic preservation is a valid public purpose, which is an important prerequisite for all governmental actions.
2 In addition to the general police power, state statutes specifically authorize local governments in California to acquire and protect historical resources. Under California Government Code Section 25373(b), a county board of supervisors may, “by ordinance, provide special conditions or regulations for the protection, enhancement, perpetuation, or use of places, sites, buildings, structures, works of art and other objects having a special character or special historical or aesthetic interest or value. These special conditions and regulations may include appropriate and reasonable control of the appearance of neighboring private property within public view.” Similar authority for municipalities is found in California Government Code Section 37361(b).

Further, both federal and California courts have emphasized that governments may regulate to protect community aesthetics, which are at the heart of many preservation ordinances, to further the public welfare. This principle has been firmly established since at least 1954, when the U.S. Supreme Court noted that: “The concept of the public welfare is broad and inclusive…. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled.” 3 The 1978 U.S. Supreme Court
case of Penn Central Transportation v. New York City,4 generally examined the constitutionality of New York City’s preservation ordinance and found such an ordinance to be a valid public purpose and a legitimate function of local government. 1 California Constitution, Article XI, Section 7.
2 On historic preservation law in general, see Antonio Rossman, Historic Preservation, in California Environmental Law (K. Manaster and D. Selmi eds. 1998); Christopher J. Duerksen, Historic Preservation Law, in Rathkopf’s The Law of Planning and Zoning (Ziegler ed. 1975). 3 Berman v. Parker, 348 U.S. 26, 33 (1954).
4 438 U.S. 104.

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Yet, while California communities have broad preservation authority under the state constitution and statutes, their ability to regulate historical resources is still subject to certain constraints under the federal and state constitutions,5 including prohibitions against the taking of private property for public use without just compensation, and the guarantee of due process. These two important issues are covered later in this manual. 5 U.S. Constitution, Amendment V; California Constitution, Article XI, Section 7.

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SECTION 3: ESTABLISHMENT OF THE PRESERVATION COMMISSION The ordinance must identify the local entity charged with administering and enforcing the ordinance and list their specific responsibilities. In many cases the preservation commission is a separate decision-making body within the local government. In other cases the City Council or its equivalent may act in the capacity of a preservation commission. This manual reviews key issues to consider when drafting this crucial section. For example, should the community require professional qualifications of preservation commission members? What types of activities should fall under the preservation commission’s jurisdiction? Should the commission have decision-making authority, or merely be advisory to some other body, such as a planning commission? The possible strategies for organizing a preservation commission by ordinance are endless, limited mainly in California by practical political and staffing considerations, which vary widely by community. This section addresses four basic issues: composition of the review body, the scope of its powers, the location of final review authority, and disclosure of pecuniary and personal interests of review board members.

COMPOSITION
Because local preservation ordinances in California are grounded in very broad enabling authority, communities have wide leeway in the composition of preservation commissions. Members of a local preservation commission typically are appointed by the local governing body or chief executive. Preservation commissions typically have five to nine members—an odd number helps prevent tie votes. Terms vary widely, with three years being a typical length. Terms usually are staggered to ensure that experienced members always will be serving. Some communities may want to consider setting a maximum limit on the number of consecutive terms that any person can serve, to prevent the commission from becoming too closely associated with any one individual.

Each jurisdiction should consider whether to require professional qualifications for some, or all, members of the review body. Qualifications are important from both a legal and a practical standpoint. There currently are different approaches in use throughout the state. Some communities require that a few (e.g., Napa) or all (e.g., Fresno) members be trained in history, architecture, archaeology, or a related field, in order to ensure that preservation decisions benefit from professional expertise. Other communities require no such qualifications and simply ask that members express an interest in preservation in order to serve.

There are merits to both approaches. A broadly based membership can protect the ordinance and its administration from a claim of arbitrariness and can help distinguish preservation restrictions from other aesthetic controls that are sometimes invalidated by courts. Some observers argue that the overall quality of preservation and design review in the community suffers if commission members do not have solid credentials and the experience necessary to carry out their responsibilities. There is value in having a mix of backgrounds on a preservation commission.

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Requiring professional qualifications ensures that members have the necessary technical expertise to review adequately matters before the preservation commission.

Requiring professional qualifications for at least some members also is consistent with the national requirements for cities participating in the Certified Local Government (CLG) program, which provides a source of grant money for preservation programs in participating communities. The California CLG procedures encourage local governments to have at least two professionally qualified persons. A local government in California may be certified without the minimum number or types of disciplines established if it can be demonstrated to the satisfaction of that state that it has made a reasonable effort to fill those positions, or that some alternative composition of the commission best meets the needs of the protection of historic properties in the local community. The CLG guidelines outline professional qualifications in a handful of areas, including history, architectural history, archaeology, and architecture. For each discipline, the guidelines require a minimum level of education and professional experience, which are codified in the Code of Federal Regulations (36 C.F.R. 61). In addition to the disciplines identified in the CLG guidelines, it also is useful to have planners and landscape architects on a local preservation commission.

Some communities believe that requiring qualifications may deprive the review body of valuable
common-sense perspectives from citizens not professionally involved in preservation-related fields, and also might prevent service by individuals who are well- qualified though not professionally trained. To some, “qualifications” equal bias, and thus decisions made by commissioners with qualifications may carry less weight with the legislative body, because they are perceived to be less representative of the whole community.

In an attempt to reach a middle ground between these two philosophies, many communities
have adopted a balanced system made up of both professionally qualified members and also citizens-at-large who bring a broader perspective of community affairs. In such jurisdictions, only some (e.g., four out of seven) commission members are required to meet professional qualifications standards, in order to bring expertise in urban design and preservation to the commission. The Alameda, California, approach is typical:

The Commission shall consist of five members, all of whom shall be residents of the City during incumbency, nominated by the Mayor and appointed by the City Council:

A. One registered architect
B. One registered landscape architect, architect, or building designer C. One state licensed general building contractor
D. Two members shall be citizens of the City at large, with an interest in community design.

E. In the event that the Council determines that any of the positions described in subsections (a), (b), or (c) cannot be filled by persons qualified thereunder, the Drafting Historic Preservation Ordinances
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Council may fill any such position by appointing persons qualified under subsections (a), (b), (c), or (d).6
Around the country, numerous courts have examined the composition of the preservation review body in the context of challenges to local ordinances. While none have held that the particular composition of a review body is fatal to the validity of a historic preservation ordinance, these courts nevertheless have noted that representation by a range of disciplines and interests helps refute any claim that the actions of the review body are arbitrary.7 For example, in a famous case involving a challenge to the New Orleans preservation ordinance, the court noted that the ordinance “curbed the possibility for abuse by the Commission…by specifying the composition of that body and its manner of selection.”8 Similarly, the Colorado Supreme Court, in a case from Georgetown, Colorado, acknowledged the importance of a commission’s expertise in helping to prevent arbitrary action.9 These cases indicate that careful wording can strengthen the legal case for an ordinance by specifying a knowledgeable, representative membership for a local preservation commission.

Settling on the composition of a local commission is sometimes a difficult undertaking in small
communities that simply do not have a large cadre of professionals with relevant experience. There may be only one or two architects in the area, and they may be hesitant to serve if volunteering means foregoing preservation or restoration projects that might come before the commission. The solution is not an easy one. State historic preservation offices can be of great assistance by making available an architect to “ride circuit,” rendering expert advice to key members of small preservation commissions (though of course staffing such a position requires a high commitment of resources by the state.)
In summary, across California, historical review boards and preservation commissions represent
a wide diversity of sizes, generally five to fifteen members, and skills, such as varying degrees of experience in preservation-related fields. In addition to the Alameda language included above, several excerpts from adopted California preservation ordinances are included below to illustrate the range of approaches used in the state today. They range from the Berkeley ordinance, which simply specifies a number of commission members and contains no detail on professional qualifications; to the Colton ordinance, which identifies a general range of disciplines from which all commission members should be drawn; to Santa Monica, which sets strict qualifications for some but not all seats on the local commission. The Los Gatos ordinance requires a mixture of lay members and planning commission members on its preservation commission; this common approach ensures a linkage between preservation and other planning and land-use activities in the community.
6 Alameda, California, Municipal Code, Title II, Article 3, Sec. 332. 7 See, Citizens for Responsible Development v. City of West Hollywood, 39 Cal.App.4th 490, 494 n. 1, 45 Cal.Rptr.2d 917 (Cal. App. 1995) (noting the availability of experts within the commission as the court uphel
d the preservation commission’s determination that certain structures were not of historic significance).
8 Maher v. City of New Orleans, 516 F.2d 1051, 1062 (5th Cir. 1975). 9 South of Second Assoc. v. Georgetown, 580 P.2d 807, 808-09 n.1 (Colo. 1978).

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CALIFORNIA CODE EXCERPTS:

ESTABLISHING THE REVIEW BODY

CITY OF BERKELEY
Section 3.24.030. Membership – Appointments – Organization and Officers.

The commission shall consist of nine members. Appointments to the commission shall be made by council members and vacancies on the commission shall be filled by council members in accordance with [general provisions regarding appointment vacancies].

CITY OF COLTON
Section 15.40.050 Commission – Members.

The following regulations shall apply to the membership and organization of the Historic Preservation Commission:
a) The Historic Preservation commission shall consist of seven members appointed in accord with the provisions of Chapter 2.30 of the Colton Municipal Code.
b) The Historic Preservation Commission shall be appointed by the City Council of city residents from among professionals knowledgeable in the disciplines of history, architecture, architectural history, planning, prehistoric and historic archaeology, folklore, cultural anthropology, curation, conservation, and landscape architecture or related disciplines, such as urban planning, American studies, American civilization, or cultural geography, to the extent that such professionals are available in the community. Commission membership may also include lay members who have demonstrated special interests, competence, experience, or knowledge in historic preservation.

CITY OF LOS GATOS
Section 29.80.225. Historic Preservation Committee.
a) The Historic Preservation Committee acts as an advisory body to the Planning Commission on all matters pertaining to historic preservation. The Historic Preservation Committee shall consist of five (5) members, three (3) public members and two (2) Planning Commissioners. The public members shall be appointed by the Town Council and the Planning Commission members shall be appointed by the Planning Commission Chair and affirmed by the Town Council.
b) The Committee is composed of professional and lay members with demonstrated interest, competence or knowledge in historic preservation.

Committee members shall be appointed from among the disciplines of architecture, history, architectural history, planning, archeology or other historic preservation-related disciplines such as urban planning, American studies, American civilization, cultural geography or cultural anthropology to the extent that such professionals are available in the community.

CITY OF SANTA MONICA
Section 9.36.040. Landmarks Commission.

A Landmarks Commission is hereby established which shall consist of seven members appointed by the City Council, all of whom shall be residents of the City Drafting Historic Preservation Ordinances
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over eighteen years of age. Of the seven members, at least one shall be a registered architect, at least one shall be a person with demonstrated interest and knowledge, to the highest extent practicable, of local history, at least one shall have a graduate degree in architectural history or have demonstrated interest, knowledge and practical or professional experience to the highest extent practicable of architectural history and at least one shall be a California real estate licensee.

SCOPE OF POWERS
Just as important as who sits on the review body is what authority that body has to regulate building and land-use activities. Review bodies in various communities across California have wide-ranging responsibilities, including, but not limited to, the following:
• Survey and identification of historically and architecturally significant structures and areas;
• Establishment of standards and procedures for designation of historical resources;
• Designation of historical resources;
• Review of applications for alteration, construction, or demolition of historical resources and all structures within historic districts; • Coordination and supervision of educational activities; • Purchase or sale of property;
• Acceptance of easements and other less-than-fee-simple donations of property; • Enforcement of ongoing maintenance requirements for historical resources, • Acceptance of preservation funds from various sources, and • Review of zoning amendments and comprehensive plans relating to historic preservation.

The most important powers that can be vested in a preservation commission have all been held valid under the U.S. Constitution by various courts: the power to deny an application to demolish or alter historical resources; to regulate new construction or development in the vicinity of a historical resource or historic district; and to impose affirmative maintenance requirements on historical resource owners. Of course, courts retain the authority to review how such powers are exercised in individual cases, but, in legal parlance, such provisions are valid on their face. Thus, there is wide latitude available in granting powers to a preservation commission in an ordinance, keeping in mind appropriate federal and state constitutional requirements.

Just as there is no one correct way to empanel an effective review body, there is no commonly accepted set of responsibilities for that body. There are, however, common elements found in most ordinances. The City of Glendale’s historic preservation ordinance contains a representative list of express authorities (See excerpt below.).

A preservation commission is commonly given the power to investigate and recognize as-yet unprotected historical resources within the locality through various mechanisms, Drafting Historic Preservation Ordinances
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such as preparation of historic resources surveys. Some communities establish a list of “structures of merit.”
10 The Eureka, California, ordinance also provides several examples of other proactive powers that may be given to a preservation commission (See excerpt below.).

As is true with other provisions of a preservation ordinance, practical considerations, as much as legal requirements, will shape the scope of powers granted to a commission. If a community is concerned primarily with exterior facades of historical resources, then it makes little sense to add to the administrative burden by asserting control over interior changes. Similarly, in a town with a volunteer preservation commission able to meet only once a month, the commission may be overwhelmed if it must review every application for a building permit within a historic area. In such instances, it may be advisable to exempt certain changes or allow the local building official or planning staff to handle applications for “minor alterations” as defined by the commission (See the discussion below under “Section 5: Procedures and Criteria for Actions Subject to Review: Allowing Staff-Level Reviews.”).

On the other hand, in situations where any alteration in the general vicinity may be detrimental, the commission may need to control not only all external alterations to historical resources (even in the rear of a building) but also alterations to neighboring structures that are not of landmark quality,
11 and even interiors that are visible to the
public. The City of Berkeley, for example, grants its preservation commission the power to condition the designation of a publicly owned historical resource upon the ability to review “proposed changes in major interior architectural features.” 12 In the City of
Davis, the Historical Resources Management Commission is empowered to provide advice on landscaping at the sites of historical resources. 13 Probably the most crucial consideration in drafting the powers of a preservation commission is that the review body be given adequate power to protect historical resources. This will in many cases require that it have the power to forbid demolition or alteration, not just delay it, even though such power may be exercised infrequently.

CALIFORNIA CODE EXCERPTS:

SCOPE OF POWERS

CITY OF DAVIS
Section 40.23.050 Powers and Duties.
10 See e.g., Berkeley, California, Code of Ordinances, § 3.24.070(A) (“the commission may establish and maintain a list of structures, site and areas deemed deserving of official recognition, although not yet designated…”).
11 See, Glendale, California, Code of Ordinances, § 2.76.100(M) (commission may render a decision on any design review application “affecting” designated historical resources). 12 Berkeley, California, Code of Ordinances, § 3.24.100(B)(1). 13 Davis, California, Code of Ordinances, § 40.23.050(J).

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The historical resources management commission shall have the following powers and duties under this article:

A. Act in an advisory capacity to the city council in all matters pertaining to historical resources/districts;
B. Maintain a local inventory of historical resources/districts within the city; publicize and update periodically the inventory;
C. Recommend the designation of historical resources/districts, as hereinafter provided;
D. Recommend standards to be adopted by the city council, to be used by the commission in the review of applications for alteration permits; E. Hear and render judgment on applications for alteration permits, as hereinafter provided; approve or deny issuance of alteration permits; F. Investigate and report to the city council on the use of various federal, state, local, or private funding sources and mechanisms available to promote historical preservation in the city;
G. Review and comment on the decisions and documents (including environmental assessments, environmental impact reports, and environmental impact statements) of other public agencies when such decisions or documents may affect historical resources/districts or potential historical resources/districts in the city;
H. Cooperate with local, county, state, and federal governments in the pursuit of the objectives of historic preservation and request and receive any appropriate information from any city departments or commissions;
I. Participate in, promote, and conduct public information, educational, and interpretive programs pertaining to historical resources/districts; J. Render advice and guidance upon the request of the property owner or occupant, on the restoration, alteration, decoration, landscaping, or maintenance of any historical resource, outstanding historical resource, or improvement located in a historic district;
K. Provide for adequate public participation in local historic preservation programs, including the process of recommending properties for nomination to the National Register;
L. Perform any other functions that may be designated by resolution or motion of the city council.

CITY OF EUREKA
Section 157.03 (Authority and Responsibilities of Historic Preservation Commission).

A. In addition to the responsibilities conferred by other provisions of this chapter, the Historic Preservation Commission shall:

1. Review applications to alter or demolish all or part of any structure which is located on a designated property under §§ 157.04 and 157.05 of this chapter.

2. Adopt maximum times for its historic preservation review, which if exceeded, may be treated as causing automatic HPC approval or HPC disapproval.

B. The HPC shall, to the extent it deems action appropriate, have the authority to:

1. Negotiate with owners of properties having special characteristics for, and may recommend to the City Council the approval of, contracts to restrict the use of such property and to retain such characteristics.

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2. Establish and maintain a list of structures, other physical features, sites, and areas considered deserving of official recognition although not given regulatory protection. The purposes of the list shall be to recognize the merit of and encourage the protection, enhancement, perpetuation, and use of such structures, other physical features, sites, and area. For these purposes, the Commission may authorize such steps as it deems desirable, including but not limited to the issuance of certificates of recognition and the authorization of plaques.

3. Carry out or assist studies and programs designed to identify and evaluate structures, other physical features, sites, and areas which are worthy of preservation.

4. Inspect and investigate structures, other physical features, sites, and areas which may be worthy of preservation.

5. Consider methods other than those described above for encouraging and achieving preservation of worthy structures, other physical features, sites, and areas, including exploring means of financing the restoration or maintenance thereof.

6. Make appropriate recommendations on the general subject of preservation to the Planning Commission, City Council, other public and private agencies and bodies, and the general public.

CITY OF GLENDALE
Section 2.76.100 (Powers and duties generally).

The historic preservation commission shall have the power and it shall be its duty to perform the following acts:

A. To consider and recommend to the city council additions to and deletions from the register of historical resources;
B. To keep current and publish a register of historical resources; C. To make recommendations to the planning commission, and the city council on amendments to the historic preservation element of the city general plan; D. To grant or deny applications for permits for demolition, or major alterations of historical resources;
E. To grant or deny appeals from decisions of the director of planning and the permit services administrator as specified in Section 15.20.030 of this code; F. To encourage public understanding of and involvement in the unique historical, architectural and environmental heritage of the city through educational and interpretative programs;
G. To explore means for the protection, retention and use of any historical resource, historic district, or potential historical resource or district; H. To make recommendations to the city council on applications for properties to be included in the property tax incentives program which may be subject to historic property contracts as set forth in Section 15.20.070 of this code; I. To encourage private efforts to acquire property and raise funding on behalf of historic preservation; however, the commission is specifically denied the power to acquire any property or interest therein for or on behalf of itself or the city; J. To recommend and encourage the protection, enhancement, appreciation and use of structures of historical, cultural, architectural, community or aesthetic value which have not been designated as historical resources but are deserving of recognition;
K. To encourage the cooperation between public and private historic preservation groups;
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L. To advise city council and city boards and commissions as necessary on historic preservation issues;
M. To render decisions on design review applications affecting designated historical resources pursuant to Section 30.16.820;
N. To perform any other functions that may be designated by resolution or motion of the city council.

FINAL REVIEW AUTHORITY
Another important issue closely related to the scope of the reviewing body’s power is the question of where final authority should rest for designating structures and reviewing permit applications. In many communities, final decision-making authority rests with the preservation review body, while in other jurisdictions that body makes a recommendation to a planning commission or city council, which makes the final decision. Under California’s broad enabling authority, local governments have wide leeway in where they place final decision-making authority, and the choices may be difficult.
• One approach, perhaps the least attractive to preservationists, is to have the local law grant the preservation commission advisory authority only regarding designations and permit reviews, and vest no absolute power to deny demolition permits in either the preservation commission or the legislative body. The City of Burbank, California, has adopted this approach, which, while providing for close political control over preservation and limiting restrictions on owners who may want to demolish their historical resources, is not as aggressive in protecting historical resources as some preservationists might like. • A second approach is to split authority between the preservation commission and the local legislative body. For example, in both the California cities of Alameda and Davis, the preservation commission makes decisions on permit reviews (though its decisions can be overridden by appealing to the local legislative body). The legislative body makes decisions on designations (with appeal to the courts), with only advisory input from the preservation commission. This model, more acceptable to preservationists because of the balance it strikes among conservation goals, property rights, and political control, is common throughout the country and has been upheld regularly by the courts. 14 • Another option is to vest final review authority over designations and permit reviews with the preservation commission, with appeal to the city council or to the courts. From a preservation point of view, this approach is most attractive because, to a certain extent, it removes preservation from the political arena and 14 See, e.g., City of New Orleans v. Pergament, 198 La. 852, 5 So.2d 129 (1941); Maher v. City of New Orleans, 516 F.2d 1051 (5th Cir. 1975); 900 G Street Associates v. D.C. Department of Housing and Community Development, 430 A.2d 1387 (D.C. App. 1981); and Friends of Sierra Madre v. City of Sierra Madre, 25 Cal.4
th 165, 172 n. 3, 105 Cal.Rptr.2d 214, 19 P.3d 567 (Cal. 2001) (Upholding Sierra Madre Ordinance No. 1036).

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allows local commissions to forbid demolition according to prescribed standards and procedures. Courts also have upheld uniformly this type of ordinance around the country. In California, the cities of Berkeley and Eureka have adopted this approach.
• Finally, some communities might assign some preservation-related responsibilities
to other entities altogether, such as a design review commission.

For example, in Pasadena, California, the Cultural Heritage Commission (CHC) has responsibility for most preservation review in the city, but the Design Review Commission (DRC) handles design review in the downtown preservation district.

Also, for city-owned properties, the CHC serves in an advisory capacity to the DRC.

If other entities exist besides the preservation commission, such as a design review body,
then the community should think carefully about the relationship between the multiple entities and ensure that there are no duplicative reviews that may unnecessarily add time and costs to the development review process. The jurisdiction of each entity should be carefully distinguished from the other entities (e.g., by geography or by type of project). The sequence of decision-making should be coordinated to prevent contradictory decisions. In California, local governments increasingly are moving toward fewer boards, rather than more, to avoid these types of potential complications.

If strong preservation controls are to be exercised by the preservation commission, then local
elected officials almost inevitably will want final review authority over designations and permit applications to rest with the local legislative body, the mayor, or with a planning commission or similar body that has a broader view of community development. Preservationists may have to choose between having stronger controls exercised by a less sympathetic body or weaker controls vested in a friendly preservation commission. There are pros and cons to either approach. If the local planning commission or zoning board is put in charge of making final decisions, then preservationists may find that it is more difficult to get historical resources listed or that the review body occasionally allows demolition or site development that a more preservation-oriented body might reject. Yet the occasional reversal on appeal to another board may be worthwhile to preservation advocates if the alternative is vesting limited powers – perhaps authority only to delay demolitions rather than veto them – in a preservation commission.

In most instances, a good case can be made for establishing final review authority in a separate
preservation commission with specific expertise and the time to devote to preservation programs. Moreover, as discussed earlier, for a local government to qualify for certain federal historic preservation programs and funding and to assert authority over local National Register nominations, the community must establish a preservation commission with adequate authority to designate historic districts, review proposals for alteration within a district, and protect significant structures.

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In terms of vesting a preservation commission with final review authority, there are practical aspects to keep in mind as well. Is there sufficient expertise, or are there enough willing citizens available in the community to establish yet another volunteer commission, particularly in smaller towns? If an existing body, such as the planning commission, is given authority over historical resources, will these added duties overburden it? Who will do staff work for the review body? Would staff from a planning or zoning commission be sympathetic to preservation goals? Should the review body concern itself only with major alterations or demolitions, or is greater control warranted?

DISCLOSURE OF PECUNIARY AND PERSONAL INTERESTS
People are often appointed to preservation commissions because they have some special expertise (i.e., architectural training, real estate experience, or legal knowledge) that should be helpful to the commission in making decisions. But the use of this expertise, and the past affiliations that are often part of such expertise, raise several interesting legal issues to which commissioners should be sensitive.

Occasionally, members of the preservation commission will have a pecuniary or personal interest in a case before the commission. What if a commissioner has a direct pecuniary interest in a case, perhaps through a partnership with the developer applying for a demolition permit? Almost universally, the commissioner should disqualify himself or herself in such situations. But that is the easy case.

What about cases in which the interest is only indirect – for example, when a commissioner owns nearby property that might appreciate in value if a big, new high- rise office building is allowed in a historic area? That question is a difficult one. In several zoning cases around the country, courts have invalidated zoning decisions because of the possibility of a conflict of interest.
15 Commissioners should be very
careful to disclose any potential direct or indirect gain or loss that could flow from a commission decision.

Where a potential conflict of interest may be perceived but the commissioner has no tangible interest at stake, disclosure and affirmation of unbiased decision-making is still important. What if a commissioner, because of a past affiliation – say, the presidency of a local private preservation advocacy group – is perceived to have an inherent bias against, or for, a particular proposal? Should that person be disqualified? Generally not, unless the commissioner cannot keep an open mind and is not willing to consider evidence supporting a contrary position and to make a finding on the record presented.

Present activity with local groups actively supporting or opposing a particular case 15 For an example, see Buell v. City of Bremerton, 495 P.2d 1358 (Wash. 1972), striking down a local zoning decision because the chairman’s property might increase in value as a result of the zoning. A recent California case involved the City of Torrance, where several council members had received campaign contributions from an opponent of a proposed conditional use permit before the board; Breakzone Billiards v. City of Torrance, 97
Cal.Rptr.2d 467,477 (the court held that recusal by the council members was not required because each had stated their decision would not be affected by the contribution and the court found no indication that the decision-maker’s impartiality was tainted).

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before the commission will raise more questions and potential challenges to the commissioner’s ability to vote in an unbiased manner; therefore disqualification or recusal may be appropriate in cases of active affiliation with a party in interest.

A related, common disclosure issue is whether commissioners can base decisions on personal
knowledge or expertise. For example, if an architect knows from long years of study and personal experience that a proposed development in a historic district is not compatible with the character of the district and that alternative designs are possible, can such knowledge form the basis for a negative decision? Similarly, can a commissioner make a personal visit to a historical resource that an owner wants to demolish and base his decision on impressions from that visit? Generally, the answer to both of these questions is “yes.” A decision can be based on personal knowledge and expertise, provided that knowledge is noted in the record. 16 16 For a sampling of cases in support of this position, see Ohio Bell Telephone Co. v. Public Utilities Commission, 301 U.S. 292 (1937); and Russo v. Stevens, 7 App. Div. 2d 575, 184 N.Y.S.2d 981 (1959).

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SECTION 4: PROCEDURES AND CRITERIA FOR DESIGNATING HISTORICAL

RESOURCES
What types of historical resources should be protected, and how? Should the ordinance consider both individual historical resources and also historic districts? Should distinctions be made to reflect different levels of archaeological, historical or architectural significance? Who should receive notice of proposed historic designations? This section discusses the basic issues regarding surveys and studies to identify historic resources for planning as well as designation purposes, designation procedures and criteria. Other related topics that are covered include owner consent; designation of interiors; and alternatives to designation, such as conservation districts.

SURVEYS AND STUDIES
The most effective preservation ordinances are supported by thorough, methodical studies and surveys of the community’s archaeological and historic resources. In the landmark Penn Central case, the Supreme Court pointed out the importance of background surveys and studies, stating that the “function…of identifying properties and areas of historical and architectural importance is critical to any landmark preservation effort.” Historic building surveys provide information for a variety of local government purposes. They are a key element in making preservation planning complementary with development goals. Such surveys help to evaluate the impact of new development.

They enable planning decisions to be made against a preservation background. They are useful in developing special planning tools, heritage tourism initiatives, pre-disaster mitigation plans and incentives. By making information available early in the project planning process, such surveys help the review process to operate more efficiently.

Resources of potential historical significance should be surveyed and the archaeological, architectural or historical significance of individual resources and districts documented before designation takes place. Surveys and studies regarding what is important for the community to preserve are often critical as they may help to counter any argument that the act of designating a resource is arbitrary and capricious.

Ideally, experienced professionals will conduct such surveys, but, in smaller communities especially, volunteer efforts should suffice, particularly when they draw on the extensive expertise available through state historic preservation offices, the federal government, universities, and preservation organizations such as the National Trust for Historic Preservation. The key is to maintain high standards in documentation. Helping to bolster the defensibility of its ordinance, Colton, California, defines “survey” in a way that provides guidance regarding documentary standards:

Survey is the accepted method of systematically studying historic resources. It includes a physical description and a photograph of each historic resource, legal information from title or assessment records, statements of significance according to the criteria in this ordinance, and a statement of any threat to the integrity or continued existence of the resource. The information for each resource is recorded on a survey sheet.

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Some California jurisdictions require or recommend at least an informal, “windshield” survey for a property to be determined eligible for designation. For example, the Burbank Municipal Code contains this provision:

Windshield survey. The City Planner shall maintain an inventory of potentially significant historic places, structures, or improvements. The purpose of this inventory is to identify properties, improvements, or structures which may warrant further research for the purposes of establishing historical significance.
17 Using the survey as a guide, the community then should choose carefully those individual resources, neighborhoods or districts it believes worth preserving. Attention to detail in the survey and designation stages will pay dividends later on. As an illustration, the Colorado Supreme Court struck down a preservation ordinance that designated the entire city as a historic district on the ground that, in practice, the local commission treated areas within the district differently, thus indicating that district boundaries should have been drawn with greater precision.18
Once a community has completed its initial survey and designated landmarks and districts, it should ensure that the survey is periodically reviewed and updated.

Resources that were overlooked the first time around may be discovered, or some that were consciously omitted may assume a new significance. What a community considers unworthy of protection may change over the course of only a few years. For this reason, many ordinances contain provisions similar to those found in the Ventura County, California, ordinance, requiring that the survey be “periodically” updated. 19 It takes time to gather essential documentation, develop historic contexts and complete survey fieldwork. When owners of potential historical resources catch wind of such activity, some may react by rushing to city hall for a demolition permit. The answer may be for the local government to enact a development or demolition moratorium during the study period. Moratoriums have been upheld in the historical resource preservation context.
20 The importance of conducting historical resource surveys before designation occurs cannot be overestimated. Local officials will look to such surveys for guidance when presented with development applications that affect historical resources. Also, some landowners may challenge designations and permit denials. Courts will scrutinize the actions of preservation commissions in such cases and will examine relevant background materials such as historic resource surveys. Fortunately, courts show deference to local designations in most instances in which the locality has made an 17 Burbank, California, Municipal Code, § 31-928(a)(1). 18 South of Second Associates v. Georgetown, 580 P.2d 807 (Colo. 1978). 19 County of Ventura, California, Code of Ordinances, § 1364-11 (Surveys). 20 City of Dallas v. Crownrich, 506 S.W.2d 654 (Tex. Civ. App. 1974) (city successfully argued that a 60- day development moratorium was essential to protect landmarks while the city was formulating a preservation plan).

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honest effort based on the information before it. Indeed, designations probably will withstand judicial scrutiny even if credible supporting evidence and documentation are produced after the fact at trial. The local government's determination carries with it a presumption of validity and local governments must take care that this presumption is not squandered. (There are, however, from a few courts, some rumblings of discontent about eleventh-hour attempts by local governments and preservationists to designate a historical resource, thereby thwarting demolition or alteration permitted under the then existing law.)
Any sort of survey, amateur or professional, will reinforce the local government's position that its action has a rational basis. However, while it may be best to conduct professional surveys of historic resources before designation, they are not a legal requisite. There is no constitutional requirement that a survey be performed prior to designation if the local government can prove at trial that the designated structure or districts of architectural or historic significance at issue is defined by a valid local ordinance.

Finally, it should be noted that inclusion of an individual building, structure, site or district in a survey of potentially eligible historic resources is not the same as designation. A survey is only the first step toward affording a structure or district protection under an ordinance.
21 While under CEQA a property included in a survey
with a certain status assigned to it is presumed to be a historical resource, which must be considered by a decision-maker, the survey itself provides no formal protection, as does an ordinance.

CRITERIA FOR DESIGNATING HISTORICAL RESOURCES
The goal of a comprehensive preservation program should be to consider the full range of resources which represent the community’s history including historic and prehistoric archaeological resources and cultural landscapes as well as the built environment.

Historic signage and streetscapes may also warrant consideration and protection.

California’s communities have identified a wide range of resources that qualify for historical designation. In addition to numerous residential subdivisions and landmark commercial buildings designated throughout the state, communities have designated such unusual resources as a trailer park in Los Angeles (typical of the emergence of the city’s car culture in the 1920s). Clear criteria for historical designation are a crucial aspect of a successful preservation ordinance.
22 Recognizing that there are a variety of
reasons for designation (e.g., aesthetic, historic, social, cultural, or economic, among others), courts traditionally have given local communities great latitude in deciding what 21 See, Citizens for Responsible Development v. City of West Hollywood, 39 Cal.App.4th 490, 504, 45 Cal.Rptr.2d 917 (Cal. App. 1995) (characterizing an inventory of potentially historic properties as “an over inclusive list… never, in any way, intended to constitute a final determination” as to actual historic value). 22 For a general discussion of basic survey and designation standards in California, see the seminal case of Bohannan v. City of San Diego, 30 Cal.App.3d 416, 106 Cal. Rptr. 333 (Cal. App. 1973). See also the more recent case of League for Protection of Oakland’s Historic Resources v. City of Oakland, 52 Cal.App.4
th 896, 903, [60 Cal.Rptr.2d 821,] (Cal. App. 1997), regarding the importance of a historical resources survey in the protection of a historic Montgomery Ward building in Oakland.

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resources should be designated. Deference to the designation decision of a local community is based on the presumption that reasonably clear criteria are articulated prior to government action, and then applied by an expert body or by a legislative body on the advice of a qualified preservation commission.

An effective preservation ordinance must do more than just state that the preservation commission
can designate structures of, for instance, “historical merit.” The ordinance should give meaning to such key terms. For example, the model ordinance described by the National Trust for Historic Preservation defines the standard of "historical and cultural importance" as:
(1) has significant character, interest or value, as part of the development, heritage or cultural chara
cteristics of the City, State or Nation; or is associated with the life of a person significant in the past; or
(2) is the site of an historic event with a significant effect on society; or (3) exemplifies the cultural, political, economic, social or historic heritage of the community.

The National Trust standard is not elaborate, but it is comprehensible to both owners and judges. Where an ordinance lacks the detail exemplified by this model ordinance, the local preservation commission should consider adopting its own guidelines to augment and explain the ordinance standard.

The State of California has established designation criteria for the California Register of Historical
Resources. While there is no requirement that local governments adopt the same criteria for their own designation programs, there are substantial advantages in doing so. In particular, the California Register and National Register of Historic Places criteria are considered in CEQA and Section 106 evaluations; thus, local criteria that match the standard state and federal criteria are more likely to be relevant to environmental reviews conducted under CEQA and Section 106 (CEQA reviews are discussed in more detail later in this manual).

The California ordinances excerpted below identify very specific standards for designation,
with various types of notable resources eligible for designation. In the City of San Jose, for example, unique engineering or architectural innovations may trigger designation. In the City of Redondo Beach, the function of a property as a wayfinding feature could permit designation.

CALIFORNIA CODE EXCERPTS:

CRITERIA FOR DESIGNATING HISTORICAL RESOURCES

CITY OF SAN JOSE
Section 13.48.110 (Procedure for Designation of a Landmark).

H. Prior to recommending approval or modified approval, the historic landmarks commission shall find that said proposed landmark has special historical, architectural, cultural, aesthetic, or engineering interest or value of an historical nature, and that its designation as a landmark conforms with the goals and policies of the general plan. In making such findings, the commission may Drafting Historic Preservation Ordinances
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consider the following factors, among other relevant factors, with respect to the proposed landmark:

1. Its character, interest or value as part of the local, regional, state or national history, heritage or culture;

2. Its location as a site of a significant historic event;

3. Its identification with a person or persons who significantly contributed to the local, regional, state or national culture and history;

4. Its exemplification of the cultural, economic, social or historic heritage of the city of San Jose;

5. Its portrayal of the environment of a group of people in an era of history characterized by a distinctive architectural style;

6. Its embodiment of distinguishing characteristics of an architectural type or specimen;

7. Its identification as the work of an architect or master builder whose individual work has influenced the development of the city of San Jose;

8. Its embodiment of elements of architectural or engineering design, detail, materials or craftsmanship which represents a significant architectural innovation or which is unique.

CITY OF REDONDO BEACH
Section 10-4.201 (Designation Criteria).

For the purposes of this chapter, an historic resource may be designated a landmark, and an area may be designated an historic district pursuant to Article 3 of this chapter, if it meets one or more of the following criteria:

A. It exemplifies or reflects special elements of the City's cultural, social, economic, political, aesthetic, engineering, or architectural history; or B. It is identified with persons or events significant in local, state or national history; or
C. It embodies distinctive characteristics of a style, type, period, or method of construction, or is a valuable example of the use of indigenous materials or craftsmanship; or
D. It is representative of the notable work of a builder, designer, or architect; or
E. Its unique location or singular physical characteristic(s) represents an established and familiar visual feature or landmark of a neighborhood, community, or the City.

The standards above can be contrasted with those at issue in a case from another state in which courts invalidated historic designation because basic designation criteria were vague or absent entirely. In Texas Antiquities Commission v. Dallas County Community College District,23 the Texas Supreme Court was asked to stop demolition of several state-owned structures under a state law that automatically designated and protected all state-owned buildings of "historical interest" as state archaeological landmarks. The court, troubled by the state statute’s failure to define what "historical interest" meant, 23 554 S.W.2d 924 (Tex. 1977).

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even though it had such power under the state statute, struck down the automatic designation on the grounds that such generalized language was overly broad and vague:
…“historical" includes all of the past; "interest" ranges broadly from public to private concerns and embraces fads and ephemeral fascinations. All unrestorable structures ordinarily hold some nostalgic tug upon someone and may qualify as "buildings…of historical…interest" upon the basis of the statute now before us. We are unconvinced that we should renounce the settled law of Texas that the legislature may not delegate its powers without providing some criteria or safeguards.

In the context of historical resources, the courts may recognize in this and similar cases the historic and aesthetic merits of buildings or an area in question but will typically be compelled to uphold designation of historical resources only where clear standards exist. Without standards in a local ordinance or state regulation, courts are put in the position of having no basis to formulate a decision supportive of preservation law. Under California law, where a clear process and clear standards exist, courts will tend to uphold decisions of the local authority.24
Generally, designation standards should not be hard to draft. There are several important points, however, that an ordinance drafter should consider. First, some commissions tend to define "historic" in terms of how old a building is. This is an inflexible approach that has serious shortcomings. There is merit to making age one factor among others in determining “historic” status, but some ordinances strictly prohibit designation unless a building is a predetermined age, typically over 50 years old. Such a standard runs the risk of eliminating a number of worthy historical resources from protection (some important Modernist architecture in California is barely 50 years old, for example). Of greater concern, a uniform age standard as a requisite to designation may prevent federal certification of the local ordinance for federal tax credit and other benefits. The federal government has denied certification when designation was predetermined by a qualifying age requirement of greater than 50 years, on the ground that the effects of alteration or demolition can best be evaluated on a case-by- case basis independent of age.

Buildings do not have to be of extraordinary significance to be protected. In one New York
case, the opponents of a designation action argued that there was "no evidence to suggest that the Meeting House is of extraordinary architectural distinction or that it was ever the scene of any noted historical event or the residence of any noted personage.” 24 In Foundation for San Francisco’s Architectural Heritage v. City and County of San Francisco, 106 Cal.App.3d 893, 165 Cal.Rptr. 401 (Cal. App. 1980), the state appeals court held that, despite listing of the
City of Paris Building as a State Historical Landmark and listing on the National Register of Historical Places, the lack of local listing, after appropriate review of a designation proposal by the appropriate City of San Francisco boards, precluded an action to compel designation on the local registry. Cf., Novi v. City of Pacifica, 169 Cal.App.3d 678, 215 Cal.Rptr. 439 (Cal. App. 1985) (California courts permit delegation of broad discretionary power to local governments, including tolerance for a certain amount of vagueness within
local ordinances).

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The court in this case was not persuaded that designation should be such an exclusive category:

While relevant, this is not determinative. If the preservation of landmarks were limited to only that which has extraordinary distinction or enjoys popular appeal, much of what is precious in our architectural and historical heritage would soon disappear. It is the function of the Landmarks Preservation Commission to ensure the continued existence of those landmarks that lack the widespread appeal to preserve themselves.
25 Courts also have recognized the need to regulate non-landmark buildings that serve as a setting, or act as a buffer, for more significant structures. For example, in one famous case the North Carolina Supreme Court explicitly rejected the notion that protection could be extended only to historical resources:

It is widely recognized that preservation of the historic aspects of a district requires more than simply the preservation of those buildings of historical and architectural significance within the district. In rejecting a similar challenge, the District Court in Maher v. City of New Orleans, 371 F. Supp. 633, 663 (E.D. La. 1974), observed: "just as important is the preservation and protection of the setting and scene in which structures of architectural and historical significance are situated.”
26 In another example, the Maryland Court of Appeals rejected the argument that local commissions are powerless to regulate development around historical resources:

The whole concept of historic zoning “would be about as futile as shoveling smoke” if. . . because a building being demolished had no architectural significance a historic district commission was powerless to prevent its demolition and the construction in its stead of a modernistic drive-in restaurant immediately adjacent to the State House in Annapolis.
27 This same reasoning is applicable to grounds or gardens that might surround and complement a historical resource. If the surrounding landscape is not designated, then an owner may subdivide a historically significant site and sell off or build on the undeveloped part. This may present difficult problems even in a historic district where the preservation review body has power to control new construction, and it may completely hamstring a commission in dealing with a freestanding landmark. An owner may be able to subdivide the site and claim a “taking” of his property under the U.S. or state constitution if development is not allowed on the former grounds or garden. By coordinating its designation powers with the local subdivision ordinance, the preservation commission may avoid this problematic situation.28 25 Society for Ethical Culture v. Spatt, 415 N.E.2d 922 (N.Y. 1980). 26 A-S-P Associates v. City of Raleigh, 258 S.E.2d 444 (N.C. 1979). 27 Coscan Washington, Inc. c. Maryland-National Capital Park & Plan. Comm’n, 590 A.2d 1080 (Md. App. 1991).
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DESIGNATION PROCEDURES: NOTICE AND HEARING REQUIREMENTS The preservation ordinance must set forth a procedure to ensure that an owner of a property proposed for historic designation is given notice of the proposed designation and an opportunity for a hearing. Generally, written notice to interested parties and an opportunity to present relevant facts at an informal hearing are all that are required when designating a structure or district – something less than what may be necessary when an application to alter, demolish, or construct (all of which raise economic issues) is involved.
29 Unlike, for example, state code provisions regarding subdivision and annexation,30 the enabling legislation for historic preservation ordinances in California does not specifically identify notice and hearing requirements. However, general California guidelines for local government action are applicable to historic preservation. The Brown act prescribes the open meeting process for local jurisdictions. In addition, both counties and municipalities in California are subject to Section 50022 of the Government Code, which sets forth general notice and hearing requirements for ordinances of all types. Other notice and hearing requirements for preservation actions stem from CEQA Guidelines, Sections 15072 and 15073. In general, where a CEQA process is required for a preservation action, notice of the proposed action must be provided to all interested parties, as well as the public and various governmental “trustee” agencies (See detailed discussion later in this manual.). 31 The Davis, California, ordinance provides an example of notice and hearing language very similar to proven language in zoning and subdivision ordinances (See excerpt below.). At paragraph (C) the ordinance specifies that a public hearing is required before the preservation commission, and stipulates that the timing of the hearing must be within ninety days of the filing of an application. Paragraphs (E) and (H) describe the notice procedure, with a standard mailing radius of three hundred feet around the subject property.

Most historic preservation commissions, such as the Davis commission, operating today not only meet but also exceed constitutional and statutory notice and hearing requirements.
32 There are several pitfalls, however, that review bodies should avoid. In 29 See, Weinberg v. Whatcom County, 241 F.3d 746 (9th Cir. 2001). Note that the exact standards for notice and hearing to some extent hinge on the question of whether a designation proceeding before the preservation commission is legislative or adjudicatory in nature. See, Cohan v. City of Thousand Oaks, 30 Cal.App.4
th 547, 555, 35 Cal.Rptr. 782 (Cal. App. 1994), quoting, Horn v.

County of Ventura, 24 Cal.3d 605, 596 P.2d 1134. Insofar as a designation proceeding creates a zoning overlay district, it may be compared to zoning and rezoning actions that have been held legislative acts under California law; see, Arnel Development Co. v. City of Costa Mesa, 28 Cal.3d 511 (1980).
30 The Annexation Act, codified at Government Code § 35313, requires notice and hearing of certain affected property owners; see, McMillen v. City of El Monte, 180 Cal.App.2d 394 (Cal. App. 1960). 31 Fall River Wild Trout Foundation v. County of Shasta, 70 Cal.App.4th 482, 491, 82 Cal.Rptr.2d 705 (Cal.

App. 1999) (insufficient notice under CEQA for action related to zoning amendment). 32 See generally, Board of Regents v. Roth, 408 U.S. 564 (1972) (discussing due process and the Drafting Historic Preservation Ordinances
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some communities, listing of individual resources and districts on the National Register of Historic Places has preceded local designation. While current federal regulations require that the owner of a prospective National Register resource be given notice and an opportunity to be heard, in the past a hearing was not always held, simply because National Register listing had little real impact on the owner's rights. In a few instances, such listing has been the basis for local designations, which may take place without a new hearing, even though controls imposed pursuant to the local ordinance might be more far-reaching than those imposed under National Register listing. In those cases, the owner should be given notice and an opportunity to be heard to avoid a possible challenge on due process grounds. If a community is considering local designation at the time of the National Register listing, then it might utilize concurrent notice and hearings.

The local government should ensure that written findings of fact are prepared at the time of the designation decision. The Glendale, California, designation procedure, for instance, specifically requires written findings of fact that correspond to designation criteria enumerated elsewhere in the ordinance.
33 Typically, findings for designations
need not be as elaborate as those for applications to alter or demolish or for new construction. A summary of the evidence presented, a recitation of standards applied, and a brief statement of the reasons why the commission took the action it did is sufficient.

Step-by-step guidelines for local commissions, beginning with the designation of historical resources, act as a mechanism to prevent, or at least minimize, the risk of procedural challenges to actions of the preservation commission. In varying amounts of detail, each of the ordinances excerpted below demonstrates an effective approach to procedural issues in general.

CALIFORNIA CODE EXCERPTS:

NOTICE AND HEARING REQUIREMENTS

CITY OF DAVIS
Section 40.23.070 Designation Process.

Historical resources, outstanding historical resources, and historic districts shall be designated by the city council upon the recommendation of the historical resources management commission in the following manner:

A. Initiation of Designation. Designation of a historical resource, an outstanding historical resource, or an historic district may be initiated by the historical resources management commission, by any resident of Davis, or by the owner of the property that is proposed for designation.

Applications for designation originating from outside the commission must be accompanied by such historical and architectural information as is availability of temporary delays of hearings in emergencies). 33 Glendale, California, Code of Ordinances, § 15.20.060(d). Section 15.20.060(e) requires that the city council approval be recorded with the County recorder, assuring the preservation of a written record of the findings and designation.

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required by the commission to make an informed recommendation concerning the application, together with the fee set by the city council.

B. List. The commission shall publish and transmit to all interested parties a list of proposed designations, and shall disseminate any relevant public information concerning the list or any site, structure, or area contained therein.

C. Public Hearing. The commission shall schedule a public hearing on all proposed designations, whether originating with the commission or with another party. If an application for designation originates from outside the commission, the public hearing shall be held within ninety days of the secretary to the commission's receipt of a complete application.

D. Work Moratorium. While the commission's public hearing or the city council's decision on the commission's recommendation is pending, the city council upon the commission's recommendation may declare a work moratorium. During the moratorium, any work that would require an alteration permit if the improvement were already designated a historical resource or outstanding historical resource or if it were already located in a historic district shall not be carried out. The work moratorium will end upon the earlier of the city council's decision on the proposed designation, the moratorium termination date designated by the city council, or one hundred eighty calendar days event from the date of commencement of the moratorium.

E. Notice. In the case of a proposed designation of a historical resource or outstanding historical resource, notice of date, place, time, and purpose of the hearing shall be given by first class mail to the applicants, owners, and occupants of the property, and to property owners within three hundred feet of the property, at least ten days prior to the date of the public hearing, using the name and address of such owners as shown on the latest equalized assessment rolls or in other ownership records, and shall be advertised once in a daily newspaper of general circulation at least ten days in advance of the public hearing. The commission and city council may also give other notice, as they may deem desirable and practicable. In the case of a proposed historic district, notice of the date, place, time, and purpose of the hearing shall be given by first class mail to the applicants, owners, and occupants of all properties within the proposed district, and to all property owners within three hundred feet of the proposed boundary, at least ten days prior to the date of the public hearing, using the name and address of the owners as shown on the latest equalized assessment rolls or in other ownership records, and shall be advertised five consecutive days in a daily newspaper of general circulation at least ten days in advance of the public hearing.

F. Commission Recommendations. After the public hearing, but in no event more than thirty days from the date set for the public hearing, the commission shall recommend approval in whole or in part or disapproval of the application for designation in writing to the city council, setting forth the reasons for the decision.

G. Approval of Commission Recommendations. The city council, within sixty days of receipt of the commission's recommendations concerning proposed designations, shall by ordinance approve the recommendations in whole or in part, or shall by motion disapprove them in their entirety. If the city council approves a proposed designation, notice of the city Drafting Historic Preservation Ordinances
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council's decision shall be sent to applicants and owners of a designated property. Notice shall also be sent to the building official and to the secretary to the commission.

H. Failure to Send Notice. Failure to send any notice by mail to any property owners where the address of such owner is not a matter of public record shall not invalidate any proceedings in connection with the proposed designation.

I. Amendment or Rescission. The commission and the city council may amend or rescind any designation of an historical resource, an outstanding historical resource, or historic district in the same manner and procedure as are followed for designation.

CITY OF SAN JOSE

13.48.130 Notice of Amendment or Rescission of Designation.

A. When a landmark has been designated as a landmark and when property has been designated as an historic district, such designation may thereafter be rescinded or amended by the city council. The procedure for amending or rescinding the designation shall be the same as that for designation of a landmark or a district in the first instance. The council may rescind a designation in whole or in part when it deems it to be in the public interest to do so. The council may amend a designation when the findings required for designation in the first instance may be made with respect to the amended designation. B. The city clerk shall promptly notify the owners of the affected landmark or property by mailing a certified copy of the resolution amending or rescinding the designation, and shall cause a copy of the appropriate resolution to be recorded in the office of the recorder of Santa Clara County.

The clerk shall also send a certified copy of said resolution to the director of planning, the director of neighborhood preservation, director of public works, the building official and the occupant of the property.

CITY OF GLENDALE

15.20.060 Procedure for Designation or Deletion of Historical resources.

A. Prior to city council consideration for designating or deleting historical resources or districts, written consent shall be obtained from the property owner(s) of record;
B. The city council shall set a public hearing prior to designating or deleting a historical resource or district;
C. The city clerk shall give notice of the public hearing which notice shall contain the date, time and place of the hearing, the general nature of the proposed designation or deletion and the street address or legal description of the property involved. Said notice shall be published once in the official newspaper of the city at least ten days before the date of the hearing. Said notice shall be mailed, postage prepaid, at least ten days before the date of the hearing to affected property owners and all persons, shown on the last equalized assessment roll as owning real property located within a radius of three hundred feet of the exterior boundaries of the property which is subject to the proposed designation or deletion;
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D. The city shall make findings of fact and determinations in writing pursuant to the criteria set forth in Sections 15.20.050 and 15.20.055 of this code; and
E. The decision of the city council shall be made by resolution which shall be recorded with the Los Angeles County recorder.

DESIGNATION PROCEDURES: OWNER CONSENT
A number of existing preservation ordinances allow property owners to object to historic designation, potentially exempting those properties from the community’s preservation program. Most owner consent provisions take one of three basic approaches. Some give owners an absolute veto over designation if they file a written objection, an approach currently reflected in federal designations for the National Register of Historic Places.
34 A variation prohibits designation without affirmative, express consent of a historic property owner or a majority of owners in a proposed district. These two approaches are generally thought of as involving “owner consent.” A third variety requires a supermajority vote of the governing body for designation if an owner or majority of owners object – so called “owner objection” or “protest” provisions.

Courts have held in some cases that such provisions amount to an unlawful delegation of decision-making authority by the legislative body to individual landowners (i.e., an individual landowner can “opt out” of the regulatory process, thereby usurping the legislative power that is lawfully held only by the governing body). 35 In an analogous
situation—zoning ordinances—virtually no jurisdiction allows an individual property owner to opt out of or veto a zoning classification because such a provision would render the system ineffective.

Practical experience around the country shows that it is difficult to craft an effective historic preservation program if owner consent is required. Inevitably, the city will lose significant structures or deleterious alterations will be made. However, in some cases, practical and political considerations may dictate that owner consent provisions be present in order to ensure passage of a preservation ordinance.

In one of the few reported preservation case rulings on the validity of an owner consent requirement, a state court held that the provision violated state planning law. That case involved an Oregon state planning law that required local governments to inventory historical resources and develop a plan regarding their preservation and use. The local owner consent provision was ruled illegal because it subordinated all historical 34 16 U.S.C. 470a(a)(6) (2001).
35 Cary v. City of Rapid City, 559 N.W.2d 891, 895-96 (S.D. 1997), Eubank v. Richmond, 226 U.S. 137 (1912); see also, East Bay Asian Local Development Corp. v. State of California, 24 Cal.4th 693, 730, 740 n. 6, 743-745 (Cal. App. 2000) (Werdegar, dissenting. Discussing, in the context of religious land uses, the legal problem of delegating to individual owners the authority to make a legislative finding). But see, Di Lorenzo v. City of Pacific Grove, 260 Cal.App.2d 68, 72 (Cal. App. 1968) (addressing owner consent in the context of free speech versus property rights), quoting, Buxbom v. City of Riverside, 29 F.Supp. 3 (S.D. Cal. 1939).

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resources to individual property owner desires. The court ruled that state law required the inventorying and designation of all significant structures; competing use issues could be dealt with after designation, not before.

Generally, courts in general zoning cases dealing with consent provisions have expressed similar qualms. Because consent provisions tend to eliminate any involvement by the local legislative body, most courts, including the US Supreme Court, have invalidated such provisions as standardless and unlawful delegations of legislative power to private property owners. However, owner objection provisions in which a majority of objecting landowners can trigger a need for a supermajority vote have generally been reviewed more favorably. The rationale is that such provisions do not usurp legislative authority, or that they only allow property owners to waive an otherwise express legislative restriction enacted for their benefit.

The challenge is to balance preservation goals and the needs of the community as a whole with the need to bring landowners into the preservation process in a positive fashion. The vast majority of preservation ordinances nationwide wisely avoid any type of owner consent provisions. But, again, they may sometimes be necessary for political reasons. The two ordinances excerpted below illustrate two attempts by California communities to address this issue. The Burbank requires owner consent prior to designation (in fact, it requires owner consent even prior to staff research on a property to determine eligibility). The Monterey ordinance distinguishes between its most important historical resources (called “landmarks”) and other historical resources; the former (called H-1 resources) may be designated without owner consent, while the latter cannot.

CALIFORNIA CODE EXCERPTS:

OWNER CONSENT

CITY OF BURBANK
Section 31-928 (c) Procedure for Designation – Heritage Commission Review and Recommendation
…Prior to setting the item on its agenda, the City Planner shall obtain the owner’s written consent to the historic designation of the property, structure, or improvement and his/her agreement to abide by the historic preservation regulations of this Division through the execution of a covenant in a recordable form….

CITY OF MONTEREY
Section 38-75 H-1 Landmark Overlay Zoning
A. Description. H-1 zoning is intended to identify and protect the most important historical resources in the City, generally including properties with statewide, national, or international historic significance where that significance would be recognized outside of the City, and the City is steward of those resources are preserved for its citizens and a larger public. The City recognizes its responsibility for preserving these resources for a national and international public, and the H-1 zone may be established without owner consent in order to Drafting Historic Preservation Ordinances
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fulfill that responsibility. The H-1 zone includes a strong series of incentives to support and encourage preservation of the historical resources.

INTEGRATING HISTORIC PRESERVATION INTO THE ZONING ORDINANCE Many California local governments integrate their historic preservation regulations into the local zoning ordinance by creating “historic preservation overlay zones.” Overlay zoning is a tool that layers an additional set of regulations on top of the regulations that apply in the underlying zoning district, when special conditions are present. Overlay districts often are used to regulate special use areas (e.g., around airports) or to protect sensitive environmental resources (e.g., floodplains).

Overlay zoning also can be used to provide special protection and regulation for historical resources, either individually or in historic districts. Historic overlay districts typically provide for special review of modifications to designated historical resources, yet the underlying densities and dimensional requirements and use restrictions typically continue to apply.

One of the principal advantages of using overlay zoning to protect historical resources can be a strengthened linkage between preservation and other community land-use objectives, since the preservation efforts become more closely integrated into the overall development review process. This is an especially helpful approach where the preservation ordinance is administered by the same personnel as other development review functions.

A prominent example of the overlay zone approach is the City of Los Angeles, where the HP (Historic Preservation Overlay Zone) District is set forth in Section 12.20.3 of the zoning ordinance. The city already has designated over a dozen HPOZ’s and more are pending approval. Each designated HPOZ has its own Historic Preservation Board (a somewhat complex approach) that evaluates application for certificates of appropriateness within the HPOZ and also performs other functions, such as updates of historic resources surveys. Other California jurisdictions presently using the overlay zoning approach include the Town of Los Gatos, the City of Tustin, and the City of Pasadena.

Though overlay zoning typically adds an additional layer of protection for historic resources, it is also an opportunity to provide special accommodations and special forms of zoning relief that may provide additional preservation incentives to owners of these resources. For example, Los Gatos allows existing uses not otherwise permitted in the underlying zoning districts to continue in its Landmark and Historic Preservation Overlay Zones, subject to certain conditions.
36 36 Los Gatos, California, Code of Ordinances, § 29.80.230(c).

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SPECIAL CONSIDERATIONS IN ESTABLISHING REGULATED AREAS
Interiors
Most preservation commissions spend the bulk of their time reviewing proposals to alter the exterior of historic structures. As a result, there are few reported legal cases dealing with the increasingly controversial issue of regulating interiors. Nevertheless, such regulation is authorized under California law, and some communities, such as the cities of Pasadena and Vallejo, do regulate the interiors of select historic properties. Such regulation most typically involves large, often monumental-scale historical resources, such as churches, movie theaters, opera houses, and mansions. For example, in the 1980 San Francisco case involving the City of Paris building, a proposal to demolish an historical building was validly conditioned on the preservation of an interior rotunda. 37 Pasadena’s ordinance allows for preservation commission review of interior changes to any significant public building:

The commission shall be notified in writing by the director of community development of any plans to materially alter or redecorate exterior or interior features of any significant buildings owned by the City or any other public entities so that the commission may study such plans and make recommendations to the director of community development…
38 Similarly, Santa Monica’s ordinance allows for limited regulation of interiors in historically significant public buildings:

For the purpose of this chapter, any interior space regularly open to the public, but not limited to, a lobby area may be included in the landmark designation of a structure or structures if the Landmarks Commission, or the City Council upon appeal, finds that such public spaces meet one or more of the criteria listed under Section 9.36.100.39
Colusa’s ordinance does not differentiate between public and private properties, limiting its regulation of interiors instead on the basis of the likely impact of a proposal to exterior features:

No person shall do any work listed below without first obtaining a permit from the Heritage Preservation Committee.

1.) Exterior alterations to a designated landmark.

2.) Interior alterations that would affect the exterior of a designated landmark…40 37 Foundation for San Francisco’s Architectural Heritage v. City and County of San Francisco, 106 Cal.App.3d 893, 903, 165 Cal.Rptr. 401 (Cal. App. 1980). 38 Pasadena, California, Code of Ordinances, § 2.46.150; see also, Berkeley, California, Code of Ordinances, § 3.24.100(B)(1).
39 Santa Monica, California, Code of Ordinances, § 9.36.110. 40 Colusa, California, Code of Ordinances, § 28.05; cf. San Diego, California, Municipal Code, § 143.0220(b) (interior modifications generally exempt from historic review if they will “not adversely affect the special [historic] character”).

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For the most part, courts have supported designation of interiors of buildings as well as exteriors where a commission has been given the authority to designate and regulate "structures" or "buildings.”
41 The reasoning in Sameric Corp. v. City of Philadelphia42 is typical. There the court stated that the commission had authority to regulate "buildings, structures, sites, and objects" and that a building by definition had to create shelter. In order for a building to create shelter, it must have an interior. The court thus concluded that the ordinance must be aimed at protecting interiors as well as exteriors, particularly where the interior design reflects the same architectural elements as the exterior. The problem tackled by this court could be avoided by simply mentioning interiors in the enabling legislation.

Courts have generally applied the same standards in reviewing interior designations as they have to exteriors. Thus, in Weinberg v. Berry,
43 the court rejected out-of-hand a
claim that no designation of a building interior could serve a public purpose unless the government requires public access. Moreover, the court found that since there were conceivable situations in which designation of a building interior would not constitute a taking, the act was not unconstitutional on its face, as claimed by the plaintiff.

Publicly Owned Property
Many communities struggle with the issue of publicly owned property. Some of the thorniest preservation disputes involve preservation commissions facing off against other public institutions, such as state colleges, county hospitals, or even other local agencies. When the government becomes a developer, it often attempts to ignore the rules that govern private enterprise. If it is politically feasible to do so, an effective local preservation ordinance should include a provision subjecting all owners of designated buildings, public or private, to its review procedures. If that is not realistic, the preservation commission should minimally have the authority to comment on the development plans of government agencies.

From a legal perspective, dealing with other agencies of the same local government is the easiest matter. If the local legislative body duly passes a preservation law requiring all local agencies under its jurisdiction to comply with historical resources review procedures, there is little question they must do so. (However, note that the power of a local government to give full effect to historic preservation by restricting access to and use of its public rights-of-way is limited under California law.) 44 But it is more difficult to require county or state institutions to follow the requirements of municipal preservation laws. Judicial decisions from around the country are split on this 41 See, Schneider Partnership v. Department of Interior, 693 F. Supp. 223 (D.N.J. 1988). Two California cases that have addressed the interiors of historical resources include: Citizens for Responsible Development v. City of West Hollywood, 39 Cal.App.4th 490, 45 Cal.Rptr.2d 917 (Cal.App. Dist.2 10/23/1995); and Barron v. City of Selma, No. F041147 (Cal.App. Dist. 5 10/03/2003). 42 558 A.2d 155 (Pa. App. 1985).
43 634 F. Supp. 86 (D.D.C. 1986).
44 Citizens Against Gated Enclaves v. Whitley Height Civic Ass’n., 23 Cal.App.4th 812, [28 Cal.Rptr.2d 451,] (Cal. App. 1994) (City of Los Angeles may not gate historic area and allow access only to residents for the purpose of protecting the neighborhood from crime and vandalism).

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point. If the opposing public entity is another local government, or branch thereof (for example, a county hospital), then courts have generally required that the local preservation law be observed.45 If the public institution involved in the dispute is not coequal but rather a state agency, the problem is more difficult. A majority of courts in other jurisdictions hold state agencies immune from local regulation, the rationale being that state agencies operate under a higher authority than do local governments and they need not comply unless the state legislature specifically has made them do so.46 In California, the applicability of CEQA to state government action tends to incorporate consideration of, though not expressly requiring adherence to the letter of, local preservation ordinances in many projects under both local and state jurisdiction.

Detailed discussion of CEQA is found later in this manual.

Berkeley’s ordinance illustrates how one community has chosen to regulate and review certificates of appropriatene
ss for publicly owned properties. The ordinance contains a provision that acknowledges that some projects may be beyond its jurisdiction, in which case only authority to comment is sought:

In the case of any publicly owned property on a landmark site, or in an historic district which is not subject to the permit review procedures of the city, the agency owning the property shall seek the advice of the commission prior to approval or authorization of any construction, alteration or demolition thereon, including the placement of street furniture, lighting and landscaping; and the commission in consultation with the design review committee of the planning commission, in appropriate cases, shall render a report to the owner as expeditiously as possible, based on the purposes and standards of this chapter.
47 Sacramento specifically exempts projects on publicly owned property from the formal review process under its preservation commission, but requires that an informal administrative procedure follow the same criteria:
(a) General: Except as provided below, the provisions of this Chapter requiring he
aring(s) before the Board or the Preservation Director shall not apply to Development Projects involving, or requests for demolition or relocation of, Landmarks, Contributing Resources or non-Contributing Resources that are owned by the City of Sacramento; provided that the City Council or other decision-making body, entity or person shall apply the same standards, and make the same findings, required by this Chapter for private projects. 45 Pittsfield Charter Township v. Washtenaw County, 633 N.W.2d 10 (Mich. Ct. App. 2001); Mayor of Annapolis v. Anne Arundel County, 316 A.2d 807 (Md. 1974). 46 County of Santa Fe v. Milagro Wireless, LLC, 32 P.3d 214 (N.M. Ct. App. 2001); State of Washington v.

City of Seattle, 615 P.2d 461 (Wash. 1980). But see, City of Santa Fe v. Armijo, 634 P.2d 685 (N.M. 1981) (favoring a balancing approach versus a strict immunity approach); City of Temple Terrace v.

Hillsborough Association for Retarded Citizens, Inc., 322 So.2d 571 (Fla. App. 1975), aff’d, 332 So.2d 610 (Fla. 1976).
47 Berkeley, California, Code of Ordinances, § 3.24.320; see also, § 3.24.100(B) (review for publicly owned property).

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(b) Exception: The Council may, by resolution or ordinance, provide for review of City projects by the Board or the Preservation Director, in which case the Board or the Preservation Director shall make recommendations to the City Council or other decision-maker.48
The situation where the interests of a federal agency overlap with a local preservation ordinance is a difficult one. Under the Supremacy Clause of the U.S. Constitution, the federal government is generally immune from local land-use regulations.49 However, Congress has enacted several laws directing federal agencies to examine and avoid where possible the adverse environmental impacts of their actions or undertakings.

Section 106 of the National Historic Preservation Act requires federal agencies to take into account the effects of their undertakings on historic properties, and afford the Advisory Council on Historic Preservation a reasonable opportunity to comment.

Section 106 gives equal consideration to properties that are included in the National Register of Historic Places and those that are not listed but meet National Register criteria. Also, Section 4(f) of the 1966 Department of Transportation Act requires transportation officials to give paramount consideration to the protection of historic properties in planning their projects.

Federal environmental laws such as the federal Coastal Zone Management Act (CZMA) apply
to some of the most highly developed and densely populated areas of California.

The CZMA, which requires state and local land-use plans to include a preservation element, requires that federal developments on private land in coastal areas covered by an approved plan be consistent with state and local land-use enactments to the extent feasible.

While neither Section 106, nor Section 4(f), nor CZMA, nor environmental impact laws such
as the National Environmental Policy Act (NEPA) will absolutely stop project proposals that are adverse to historic preservation, they are useful in giving the local preservation review body some leverage in dealing with federal agencies, especially when review criteria and/or designated properties under the local ordinance are specifically intended to reference or overlap with federal preservation criteria or designated properties.

It is important to ensure that federal projects in local communities are coordinated with local
historic preservation efforts to the extent possible. Problems can arise when, for example, federal funds (e.g., Community Development Block Grant funds) are distributed to a local community, and the Section 106 or environmental review of the expenditure of those funds is administered by the local community development or economic development department, which fails to communicate with the planning staff or historic preservation staff. Better coordination can help ensure that the expenditure of the funds is consistent with local preservation policies and regulations. 48 Sacramento, California, Code of Ordinances, § 32.05.512 (City Projects). 49 U.S. Constitution, Article VI, cl. 2.

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Telecommunication Facilities
Within the past ten years, the federal government has asserted control over wireless communication towers, cellular antennae, and other land-use components of the modern telecommunication system. The most significant source of this federal power is the Telecommunications Act of 1996,
50 which is intended to reduce various types of
barriers and introduce more competition into the telecommunications industry. Section 704 of the Act
51 expresses federal intent regarding land-use regulation. Preemption of local zoning and other land-use controls is of a limited nature.52 The two most important stipulations of federal law for preservation ordinances are, first, the instruction that local government “shall not prohibit or have the effect of prohibiting the provision of wireless services,
53 and, secondly, the requirement that “substantial evidence” in a written record must accompany a decision to deny a permit for a telecommunication facility.
54 The primary concern of preservationists is that modern electronic equipment will detract from the historic and aesthetic character of historic structures and sites. In most cases, local government should be able to preserve the integrity of historical resources and still comply with federal telecommunication laws. Court holdings to date indicate that government interference in this will draw scrutiny from the courts, 55 yet reasonable
regulations that do not effectively prohibit the provision of wireless services will be upheld.
56 Design review and design standards, especially mitigation measures (such as requiring antennae to be located on existing tall structures, use special materials, and/or employ stealth design) have been upheld as reasonable costs of preservation regulation, yet still in compliance with the federal Telecommunications Act. 57 One common approach in local ordinances is to distinguish between cell towers, which tend to be large and relatively limited in their potential for modification for historical consistency, versus stand-alone antennae, which are smaller and easier to locate or disguise in a manner that minimizes visual impact. For instance, the Tallahassee, Florida, preservation ordinance expressly prohibits cell towers within 250 feet of historic districts or historic structures, while allowing an antenna in these areas by special 50 Pub. L. 104-104, 110 Stat. 56 (1996).
51 Codified at 47 U.S.C. § 332(c).
52 47 U.S.C. § 332(c)(7)(A) (“Except as provided in this paragraph, nothing in this Act shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities.”) 53 47 U.S.C. § 332(c)(7)(B)(i)(II).
54 47 U.S.C. § 332(c)(7)(B)(iii).
55 AT&T Wireless PCS, Inc. v. Winston-Salem Zoning Board of Adjustment, 172 F.3d 307, 313 (4th Cir. 1999) (federal requirement to analyze impact to telecommunications in every case would invite Tenth Amendment scrutiny under the U.S. Constitution); Patterburg Cellular Partnership v. Board of Supervisors, 205 F.3d 688 (4th Cir. 2000) (Niemeyer, J., concurring: Section 704 of the Telecommunications Act violates the Tenth Amendment).
56 Brian R. Manuel, “Protecting Historic Landscapes Against the Proliferation of Cell Towers,” 19 Preservation L. Rep. 1001, 1028-30 (2000).
57 Omnipoint Communications Enterprises, L.P. v. Warrington Township, 63 F.Supp.2d 658 (E.D. Pa. 1999).

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review.58 This approach protects historical resources and views yet also allows wireless services to be provided in historic areas.

The federal government also has a responsibility to consider the effects of telecommunications facilities on historical resources. Section 106 of the National Historic Preservation Act requires the Federal Communications Commission (FCC) to consider the effects of its activities, including granting permits and licenses for telecommunications facilities, on historic properties. The FCC has delegated to license applicants the responsibility for initiating Section 106 consultations with the California State Historic Preservation Officer. The Office of Historic Preservation has standardized the procedures to be following by applicants requesting SHPO Section 106 reviews of FCC undertakings. Application forms and background materials are available at the OHP website.

Religious Land Uses
Churches, synagogues, and other religious structures are commonly some of the oldest developed sites in California, and historic preservation laws therefore affect religious properties in many communities. Local regulation of religious uses has become increasingly contentious in recent years, as increased numbers of “mega-churches” attract thousands of worshipers and have potentially significant land-use impacts.

Religious landowners have responded to land-use regulations of all varieties, including historic preservation, by asserting that religious properties are subject to special protections under the United States Constitution and state constitutions. This has resulted in an assortment of federal and state laws and court decisions that provide a complicated set of requirements that local governments must consider when drafting preservation ordinances. This section provides a brief overview of current developments in the law relating to religious land uses and historic preservation, as well as some legal background at both the federal and California levels.

Conflicts between religion and land-use regulation often center on the two religion clauses of the U.S. Constitution
59 and analogous provisions of state constitutions.60
The First Amendment’s establishment clause prohibits government action that endorses or advances religion; the free exercise clause prohibits certain government action that interferes with religion. Case law regarding these religious protections is highly nuanced, providing few categorical rules.

Religious institutions in California have relied on a variety of legal theories to maintain control of their property and resist preservation controls, and are likely to continue this course.
61 Given the contrast of settled legal authority for local governments to regulate 58 Tallahassee, Florida, Telecommunication Ordinance, Chapter 27, § 18.7. 59 U.S. Constitution, Amendment I (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”).
60 See, California Constitution, Article I, Section 4 (Establishment Clause and No Preference Provision); California Constitution, Article XVI, Section 5 (government may not aid religion). 61 See, First Presbyterian Church v. City of Berkeley, 59 Cal.App.4th 1241, 69 Cal.Rptr.2d 710 (Cal. App. 1997) (preemption of local preservation ordinance by California’s Ellis Act, Government Code § 7060 Drafting Historic Preservation Ordinances
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historical resources and the unsettled state of law with regard to religious properties (discussed below), communities should continue to regulate all institutional property owners uniformly, placing the burden on religious land users to challenge regulations they consider unconstitutional. In other words, local communities should subject religious institutions to the same preservation laws as other institutional uses that have similar land-use impacts, such as schools.

FEDERAL LEGAL BACKGROUND
In 2000, the U.S. Congress passed the Religious Land Use and Institutionalized Persons Act (RLUIPA),
62 partly to try and clarify the rules applicable to religious land uses. In short, RLUIPA prohibits federal, state, and local governments from imposing or implementing any land-use regulation that places a “substantial burden” on religious exercise, unless the regulation furthers a compelling governmental interest and it is the least restrictive means of furthering that interest.

To qualify for relief under RLUIPA, a religious property owner must first establish that the use is substantially burdened by a government regulation. Generally, courts are more receptive to arguments that religion is substantially burdened if the regulation directly creates a burden on the actual practice of the religion, as opposed to related activities such as day care. Provided a substantial burden is legally established, the burden then shifts to the government to show that its regulation serves a compelling government interest. In the land-use area, compelling government interests may include, for example, protecting the public safety, or controlling traffic and noise.

According to congressional records, the intent of RLUIPA is not to provide a blanket exclusion for all churches from zoning and preservation laws: “This Act does not provide religious property owners immunity from land-use regulation.” 63 In fact, in many
previous instances, a substantial burden has been found not to exist, and almost never exists if a religious institution asserts a substantial burden on the basis of financial impact alone.
64 Congress attempted to craft RLUIPA in such a way as to avoid the shortcomings that led to the demise of previous, similar statutes. For example, RLUIPA is limited in its application to areas in which Congress received specific testimony regarding an alleged pattern of discrimination against religious uses, especially smaller churches. Yet, despite such efforts, the constitutionality of RLUIPA is being vigorously tested in the courts, and thus its precise impacts on local regulation of religious land uses remains unclear.
65 If RLUIPA survives legal challenge, it may have the effect of prohibiting land-use laws that totally exclude or unreasonably limit religious assemblies or practices [which authorizes landlords to remove residential rental properties from the rental housing market], gives church litigant the right to demolish an historic structure of merit used as rental property). 62 Pub. L. 106-274; 114 Stat. 803, 42 U.S.C. § 2000cc, et seq. 63 146 Cong. Rec. S7774, 7776 (daily ed., July 27, 2000). 64 See, Rectors, Wardens & Members of the Vestry of St. Bartholomew’s Church v. City of New York, 914 F.2d 348 (2nd Cir. 1990).
65 “Congress Enacts Religious Land Use Law,” 19 Preservation L. Rep. 1111, 1120, 1121 (2000).

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within a jurisdiction.66 It may also determine whether religious uses may be subjected to standard land-use reviews, such as conditional use permit procedures, when not applied to similar types of facilities, such as schools.

Because the applicability of RLUIPA is currently uncertain, it appears that many California religious institutions and local governments are settling their disputes instead of committing to a trial and possible appeal.
67 CALIFORNIA LEGAL BACKGROUND
Prior to the passage of the federal RLUIPA statute, California had previously passed a law that specifically allows religious institutions to exempt themselves from historic preservation laws. The exemption provisions within that law, California Senate Bill A.B 133 (1994), are codified at California Government Code §§ 25373(c),(d) and 37361(c),(d). The full text of the pertinent part states:
(b): [Regulatory control of historical resources] shall not apply to noncommercial property owned by any association or corporation that is religiously affiliated and not organized for private profit, whether the corporation is organized as a religious corporation, or as a public benefit corporation, provided that both of the following occur:
(1) The association or corporation objects to the application of the subdivision to its property.
(2) The association or corporation determines in a public forum that it will suffer substantial hardship, which is likely to deprive the association or corporation of economic return on its property, the reasonable use of its property, or the appropriate use of its property in the furtherance of its religious mission, if the application is approved.

While this statute establishes a procedure for obtaining a special religious exemption, it is not an automatic entitlement: A religious organization must formally object to a preservation regulation applied to its property and demonstrate a “substantial hardship” in order to remove itself entirely from the scope of historic preservation regulation. (In anticipation of such objections, California local governments might consider adopting procedures in their local ordinances to define “substantial hardship” for purposes of enforcing this law, and requiring religious institutions to demonstrate why their hardships are different than those suffered by other parties.)
In the California Supreme Court case of East Bay Asian Local Development Corp. v.

State of California, decided in 2000, the constitutionality of this law was challenged on two grounds, specifically that the exemption endorses or assists religious institutions in derogation of the establishment clause of the United States and the California 66 Id. at 1118; See, Foothills Christian Ministries v. City of El Cajon, No. 01 CV 1197 JM (S.D. Cal. 2001) (growing church claimed no compelling state interest could justify denial of a conditional use permit that would allow it to move into a larger, commercially zoned space). 67 For information on current cases, presented by an organization supporting RLUIPA, see http://www.rluipa.com/cases/ .

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Constitutions,68 and secondly that the exemption violates the “no preference provision” of the California Constitution. On both counts, the East Bay Asian court found no constitutional problems, reasoning that “these exemptions simply free the owners to use the property as they would have done had the property not been designated an historic landmark.”69
In addition to the statutory exemption procedure, some California communities have attempted to incorporate specific protections for religious uses into their preservation ordinances. For example, Vallejo, California, includes an accommodation for the interior of certain religious structures in its ordinance:

Exceptions to Certificate of Appropriateness for Religious Properties – Nothing herein shall prevent any changes in the interior features of a church where such changes are necessitated by changes in the liturgy, it being understood that the appropriate church officials, as owner of the property, are the exclusive authority on liturgy and are the decisive parties in determining what architectural changes are appropriate to the liturgy; provided, that when it is proposed to make changed necessitated by changes in liturgy, the church officials shall communicate the nature of the change to the commission in order to receive comment and, if required, the commission shall issue a certificate of appropriateness. However, prior to the issuance of any certificate, the commission and church officials shall jointly explore such possible alternative design solutions as may be appropriate or necessary in order to preserve the interior features of such church.

However, the necessity of any such accommodation for religious uses is the basic subject of the ongoing litigation discussed above. (In any case, the interiors of religious facilities are a special case where development regulations and religion may conflict, and raise distinct concerns that do not exist in other provisions of land-use and historic preservation ordinances generally applicable to religious land use.) Beyond regulatory control of historically significant religious properties, the ability of local
governments to exercise condemnation powers against religious landowners is, as of this writing, also an area of active litigation in California.70 Though condemnation power is not commonly contemplated within the scope of an historic preservation ordinance, it is a legally acceptable strategy to protect historical resources71 and the 68 East Bay Asian Local Development Corp. v. State of California, 24 Cal.4th 693, 13 P.3d 1122 (Cal. 2000), cert denied, 121 S.Ct. 1735 (2001); United States Constitution, Amendment I; California Constitution, Article I, § 4.
69 East Bay Asian, 24 Cal.4th at 721. The issue of improper delegation of legislative power was not reached by the court, though discussed by the dissent, as discussed above in this report with regard to owner consent provisions.
70 See, Cottonwood Christian Center v. Cypress Redevelopment Agency, No. SA CV 02-60 DOC, Aug. 6, 2002 (C.D. Cal. 2002) (preliminary injunction granted when City attempted to condemn church-owned land planned for commercial redevelopment in an undeveloped business district). 71 Robert Wright and Morton Gitelman, Land Use in a Nutshell, West Publishing, St. Paul, Minn. (2000), 270; See, Prentiss v. City of South Pasadena, 15 Cal.App.4th 85, 93, 18 Cal.Rptr.2d 641 (Cal. App. 1993) (noting that the California historic preservation enabling statutes authorize eminent domain).

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outcome of condemnation cases may have some bearing on the standards applied to takings claims made under other historic preservation regulation.

ALTERNATIVE FORMS OF PROTECTION: C ONSERVATION DISTRICTS AND CONSERVATION

EASEMENTS
To supplement their existing historic district regulations, many communities have created a second type of resource district called a “conservation district.” Geared to preserving the character rather than the historic fabric of existing neighborhoods, conservation districts are being considered or have been adopted in a growing number of jurisdictions across the United States as alternatives to more stringent historic district regulations. Cities as varied as Dallas, Texas; Omaha, Nebraska; and Cambridge, Massachusetts have all adopted some form of conservation districts. Many conservation districts have been implemented for areas that fall short of meeting the criteria for a local, state, or national historic designation, but nevertheless have important cultural, visual, or other significance. Some are intended as step-down, buffer, or transition areas immediately surrounding a protected historic district. Others are directed at preserving the residential character of a neighborhood, maintaining a unique community center, or emphasizing an important cultural element of a community.

Conservation districts are typically established as either base districts or overlay districts within the local zoning ordinance. One California example is the Fresno Residential Modifying District:
"R-M" RESIDENTIAL MODIFYING DISTRICT. The "R-M" Residential Modifying District is an overlying zoning district which may be applied to the AE-5, R-1-B, R-1-A, R-1-AH, R-1-E, R-1-EH, and R-A districts, and is intended to provide special land development and street development standards which will create, protect, and maintain designated areas, streets, and adjacent properties as residential areas of exceptional public and private value by reason of their location, form, extent of trees and other vegetation, public improvements, and private improvements. All regulations for this district are deemed necessary for the protection of arcadian landscape quality and value and for the securing of the health, safety, and general welfare of owners and users of the private property and of pedestrian, equestrian, and vehicular traffic.
72 The use of conservation districts to protect neighborhood character is particularly effective when the applicable zoning regulations include specific standards addressing those characteristics. The City of Sacramento, for example, has an extensive system of special zoning provisions to protect neighborhood character. A number of conservation districts are established in the zoning ordinance, cited as “Special Planning Districts” and including both residential and non-residential areas. 73 The purpose and intent
statement of the Alhambra Corridor area, at Chapter 17.104.010 of the City code is excerpted below.
72 Fresno, California, Code of Ordinances, § 12-242.
73 Sacramento, California, Code of Ordinances, § 17.92, et seq. (Special Planning Districts).

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The Alhambra Corridor area consists of properties located between 26th and 34th Streets from the Southern Pacific railroad mainline levee to the W/X Freeway. The district boundaries are identified on a map in Appendix A, set out at the end of this chapter. This area consists of a number of different neighborhoods and is intended to provide residential uses along with neighborhood related commercial uses in commercial districts. The plan is intended to assist in the preservation of the neighborhood scale and character along with providing additional housing opportunities in the area.

The city council further finds and declares that, given the history, nature and scope of recent development within the Alhambra Corridor, special rules are
necessary to regulate nonconforming uses, and nonconforming buildings and structures, within the corridor. The non-conforming uses and nonconforming buildings and structures that currently exist within the corridor are generally compatible with the conforming uses that are permissible within the corridor. It is therefore appropriate to allow for the nonconforming uses to continue, and to allow for the buildings and structures to be rebuilt or replaced with buildings and structures of the same or lesser size and intensity.

The goals of the Alhambra Corridor SPD are as follows:

A. Maintain and improve the character, quality and vitality of individual neighborhoods;

B. Maintain the diverse character and housing opportunities provided in these urban neighborhoods;
C. Provide the opportunity for a balanced mixture of uses in neighborhoods adjacent to tr
ansit facilities and transportation corridors;
D. Maintain the neighborhood character of existing commercial neighborhoods while allowing for limited office to
serve the medical complex in this area;
E. Provide the opportunity for reuse and rehabilitation of heavy commercial and industrial neighborhoods to take advantage
of close-in living while reducing
the number of obsolete and underutilized buildings and sites.

The Alhambra Corridor provisions include detailed dimensional regulations, applicable to both conforming and non-conforming buildings. Sacramento also provides numerous other examples of both more and less intense regulation of conservation zones. For example, the Special Planning District established for the Central Business District includes a set of design guidelines and special procedures for development review.

In addition to conservation districts, the conservation easement is becoming increasingly
popular as a tool for preserving natural and cultural resources.

Conservation easements involve the acquisition of certain development rights by an organization seeking to preserve the character of a neighborhood or region. For example, a conservation easement for historic preservation might consist of an agreement between the owner and a city that an historic structure will not be demolished and will be maintained in good condition. The conservation easement is a real estate transaction and typically involves the creation of a covenant on the property under easement that will restrain any future development contrary to the intent of the easement. The conservation easement is possibly the most popular non-regulatory Drafting Historic Preservation Ordinances
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approach to historic preservation, though acquisition of historic properties by stewardship organizations or users who agree to adaptive reuse is also an important approach to consider.

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SECTION 5: PROCEDURES AND CRITERIA FOR ACTIONS SUBJECT TO REVIEW
Perhaps the most visible, and often most controversial, of powers exercised by preservation commissions is the review of applications for demolition or alteration of historical resources, or for new construction in historic areas (approvals for these actions are usually called Certificates of Appropriateness or COAs.) Applications to demolish historical resources often will engender heated arguments, bringing commissions face-to-face with the difficult task of juggling and balancing preservation goals with economic and political pressures.

Dealing with alteration proposals—often less controversial than demolitions but far more frequent—is no less difficult. The challenge in these cases is to encourage upgrading and continued maintenance of existing historical resources and to guide the process of change so that it is sympathetic to the existing character of the historic area. In all but a few historic areas, freezing things in time will be neither feasible nor desirable.

Applications for new construction can be equally controversial, involving, for example, the construction of a larger new building in and around the “airspace” of a historic building.
74 This section discusses key issues surrounding the review of applications for development that affect historical resources.

DETERMINING THE APPROPRIATE LEVEL AND AMOUNT OF REVIEW
A key factor to consider for all types of resources is whether the community will have the discretion to deny a demolition or alteration proposal, as opposed to merely delaying a proposal. Many California jurisdictions allow their preservation commissions to deny alterations or demolitions to the community’s most important historic properties, rather than merely delay such projects, though some California communities still lack such authority.

Experience throughout the nation demonstrates that, without the ability to say “no” to proposed projects when necessary, a community will probably not have an effective preservation ordinance. Being able to turn down projects strengthens the preservation commission’s hand in negotiations with property owners, and is an approach that has been highly effective in other cities with strong preservation ordinances. Many communities with effective preservation programs, such as the City of Monterey, allow their preservation commissions to deny alteration projects and demolition proposals that would be incompatible with the goals of their preservation programs. 74 See, San Franciscans for Reasonable Growth v. City and County of San Francisco, 189 Cal.App.3d 498, 234 Cal.Rptr. 527 (Cal. App. 1987) (building proposed in airspace of historic building occupied by various restaurants); similar proposals for high rise construction in air rights around significant historic structures can be seen near older churches in several major U.S. cities.

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In order to ensure efficient use of time by both staff and the preservation commission, some cities adopt “tiered” review systems that graduate the level of review and regulatory control according to the significance of the resource. A higher level of review and control can be assigned over more significant properties, while correspondingly less review and control can be assigned to less significant properties. The preservation commission might be granted authority to deny demolitions of designated historical resources, yet merely delay demolitions of buildings that are not locally listed but are considered eligible for listing. A tiered system can improve efficiency and add predictability to the review process. On the other hand, many communities do fine by assigning the same level of review to all historical resources, provided that they have sufficient staff to administer the ordinance.

In determining what level of review to assign specific resources, California communities display a wide range of approaches. In Pasadena, for example, the preservation commission traditionally has been only able to deny projects involving a handful of individual properties in the city and in historic districts (though a recently adopted new ordinance expands this authority).

DRAFTING APPROPRIATE REVIEW STANDARDS
The review of certificates of appropriateness is governed by standards set forth in the preservation ordinance, which the preservation commission uses in deciding whether to approve the certificate. The process of setting standards is crucial not only from a legal standpoint, but also as a way for preservationists to evaluate where their preservation program is leading. What kind of development, if any, do they really want in the local historic area? How do they intend to evaluate proposed changes? What is the most efficient and fair method of administering proposed changes? What should be the relationship of the local standards to other historical resource regulations, such as the Secretary of the Interior’s standards?
As preservation ordinances demand more from landowners and become broader in scope, they are increasingly likely to be challenged in court on the validity of these review standards. Challengers may argue that the standards violate due process because they are vague and unclear. While court decisions in most areas of land-use law have been very favorable in upholding relatively broad review standards, fairness and regulatory efficiency dictate that local ordinances contain clear standards that result in predictable decisions by staff and review commissions and limit administrative discretion.

Communities can typically narrow broad review standards through the use of detailed criteria set forth in the ordinance or in background documents such as historical resource surveys. The typical preservation ordinance sets forth broad review standards for demolition or development of historic properties. However, setting standards for reviewing such applications is normally a trickier task than setting standards for making designations. Preservation ordinances attempt to ensure that a demolition will “not have an adverse effect on the fabric of the district” or that new construction not be Drafting Historic Preservation Ordinances
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“incongruous,” but “in harmony,” with the “character,” “significant features,” or “atmosphere” of the area. The operative terms in determining the impact of a development or demolition proposal are to a degree subjective and need to be defined and limited in some fashion to give applicants reasonable notice of what is expected of them and to allow courts to judge the validity of the local decision. In his treatise on land-use planning law, Professor Norman Williams lists various considerations that might be used by a local commission in determining whether a proposed demolition or change is compatible with the historical resource:
• Mass — the height of a building, its bulk, and the nature of roof line; • Proportions between the height of a building and its width (is its appearance predominantly
horizontal or predominantly vertical?);
• Nature of the open spaces around buildings, including the extent of setbacks, the existence
of any side yards (with an occasional view to the rear) and their size, and the continuity of such spaces along the street;
• Existence of trees and other landscaping, and the extent of paving; • Nature of the openings in the facade, primarily doors and windows—their location,
size, and proportions;
• Type of roof — flat, gabled, hip, gambrel, mansard, etc.; • Nature of projections from the buildings, particularly porches; • Nature of the architectural details—and, in a broader sense, the predominant architectural
style;
• Nature of the materials;
• Color;
• Texture;
• Details of ornamentation; and
• Signs.

Not all these considerations will necessarily be relevant to every historical resource, but the
list does suggest how broad review standards can be narrowed. Drafting adequate review standards is much less difficult in historic areas that have a distinctive style or character. A proposal to add a redwood railing in New Orleans’ Vieux Carré district is plainly at odds with the iron railings of historic buildings in the district. The distinctive characteristics of historic areas in New Orleans, Santa Fe, Nantucket, and other cities with strong identifying features provide examples of the features best used to define compatible development and measure the impact of proposals for new development. If a local ordinance does not contain such narrowing criteria, the preservation commission would be well advised to adopt them by way of regulation or informal review guidelines (assuming the commission has power to do so).

Many California jurisdictions have adopted generalized standards for review of certificate
of appropriateness applications, consisting of a section about historic sites, another section about historic districts, and occasionally a third category devoted to Drafting Historic Preservation Ordinances
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other special classifications of historical resources.75 The language of the Davis code is typical of ordinances that maintain a broad standard of review:

In evaluating applications for alteration permits, the commission or the City Council upon appeal shall consider the architectural style, design, arrangement, texture, materials, color, and any other factors. The commission or the City Council upon appeal shall approve the issuance of an alteration permit for any proposed work only if it finds:
(a) With regard to a historical resources or outstanding historical resources, the proposed work will neither adversely affect the exterior architectural features of the resource nor adversely affect the character or historical, architectural, or aesthetic interest or value of such resource and its site.

With regard to any property located within a historic district, the proposed work conforms to the prescriptive standards for the district adopted by the commission and does not adversely affect the character of the district.76 The Davis ordinance also delegates authority to the preservation commission to “promulgate and publish” more specific standards “as are necessary to supplement the provisions of this article to inform property owners, tenants, and the general public of those standards of review by which applications for alteration permits are to be judged.” Another approach to review standards is to reference another authority, such as the Secretary of the Interior’s
Standards and Guidelines. San Diego makes use of such a reference in its ordinance, where compliance with the Standards and Guidelines may exempt a minor alteration proposal from other review.
77 (However, because the
Standards and Guidelines are somewhat vague and imprecise, they should be used by the local community as a starting point for more tailored and precise standards.) Still another approach is to provide a blanket reference to the eligibility criteria of the state and national register programs, as Santa Monica does in its ordinance when it references proposals that do or do not:
…embody distinguishing architectural characteristics valuable to a study of a period, style, method of construction, or the use of indigenous materials or craftsmanship and [do or do not] display such aesthetic or artistic quality that it would not reasonably meet the criteria for designation as one of the following:

National Historic Landmark, National Register of Historic Places, California Registered Historic Landmark, or California Point of Historic Interest. 78 75 See, Los Gatos, California, Code of Ordinances, § 29.80.290 (including a third category for pre-1941 structures); Berkeley, California, Code of Ordinances, § 3.24.260(C) (including, at (C)(1)(c), a third category for structures of merit).
76 Davis, California, Zoning Code, § 29-145.13 (Alteration Permit Standards of Review). 77 San Diego, California, Municipal Code, § 143.0220(a). 78 Santa Monica, California, Code of Ordinances, § 9.36.140(e)(1).

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PROCEDURES FOR REVIEWING CERTIFICATES OF APPROPRIATENESS (COAS) From a legal standpoint, the procedural considerations in reviewing applications for certificates of appropriateness are quite similar to those for designating historical resources. Basically, the historical resource owner must be given an opportunity to be heard, to present his or her case, and to rebut the opposing case, as discussed in the procedural section above regarding designation procedures. Commissions can help ensure fair, orderly hearings by making clear beforehand the rules that will govern their deliberations. Again, it is particularly important that the reviewing body gives reasons (or “findings of fact”) for its decision on applications for a certificate of appropriateness. 79 The main procedural elements that should be included in any local preservation ordinance include:
• The applicability of the review process and criteria (e.g., types of projects, any exemptions);
• The basic process (e.g., initiation, timing);
• Contents of an application;
• The criteria or source of criteria to be applied; and • Any specific powers (e.g., conditional permit approval) deemed appropriate for the certification process.

The following excerpt from the Glendale preservation ordinance addresses many of these concerns.

No person shall demolish, remove, or make major alterations to any designated historical resource without first obtaining a permit. An application for such permit shall be filed with the permit services administrator who shall thereupon transmit same to the historic preservation commission. The historic preservation commission may require that the application for permit be supplemented by such additional information or materials as may be necessary for a complete review by the historic preservation commission. The commission may impose such reasonable conditions or restrictions as it deems necessary or appropriate on a case-by-case basis to promote or achieve the purpose of this code. 80 While some municipalities, like Glendale, use a common list of procedures and criteria for both alterations and demolitions, others use a heightened review for demolition proposals. For example, the ordinance of Danville, California, has separate provisions for alteration (§

32.72.16) and demolition (§32.72.18). Each section has its own review criteria (such as alternative use strategies in cases of demolition), and also different timing -- there is a longer timeframe in demolition review to allow for potential 79 Two cases that demonstrate the important role that is assigned to a complete set of findings and supporting evidence are Figarsky v. Historic District of the City of Norwich, 368 A.2d 163 (Conn. 1976) (successful appeal on the basis of extensive fact-finding in record of local review) and Historic Green Springs, Inc. v. Berland, 497 F.Supp. 839 (E.D.Va. 1980) (court critical of Secretary of Interior for lack of reasoned decision-making in record for designation).
80 Glendale, California, Code of Ordinances, § 15.20.080(A) (Permit required for demolition, removal or major alterations of historical resources).

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acquisition or relocation of an historic structure. Santa Cruz also has developed a separate procedure for demolitions (See excerpt below.).

Numerous California communities require a replacement building permit if a protected historical resource or contributing building in a historic area is proposed for demolition.

For example, Section 15.20.080(B) of the Glendale Code of Ordinances, states that, “No permit to demolish a historical resource may be issued without the issuance of a building permit for a replacement structure or project for the property involved.” Also, some communities require evidence that funding is in place to ensure that replacement projects can actually be completed. Such requirements can be an effective means of ensuring that demolition does not occur until a replacement project is feasible and that new development is compatible with any surrounding historic context. However, such requirements also may require significant time and staff resources to effectively administer and enforce.

CALIFORNIA CODE EXCERPT:

PROCEDURES FOR REVIEWING CERTIFICATES OF APPROPRIATENESS

CITY OF SANTA CRUZ
Section 24.08.1012 (Demolition of Buildings Listed in the Historic Building Survey – Procedure).

1. Any person desiring to demolish a building listed on the Santa Cruz Historic Building Survey shall first file an application for a historic demolition permit with the planning department. Demolition of any such building may be approved only in connection with an approval of a replacement project. In case of a residential use, Part 14 of this chapter (Residential Demolition/Conversion) shall also apply.

2. The historic preservation commission shall hold a public hearing and shall take one of the following actions:
a. Approve Permit. The historic preservation commission may approve the historic demolition permit in conformance with the provisions of Part 14 of this chapter.
b. Approve Permit, Subject to a Waiting Period of Up to One Hundred Twenty Days to Consider Relocation/Documentation…
c. Continue for Up to One Hundred Eighty Days to Consider Designation as Landmark, or Other Alternatives to Demolition.

1. During the continuance period, the historic preservation commission may investigate relocation of the building on site or modification of the building for future uses in a way which preserves the architectural and historical integrity of the building…

2. During the continuance period, the historic preservation commission may initiate an application for a landmark designation for the building and/or site.
d. Deny Permit.

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ALLOWING STAFF-LEVEL REVIEWS
To what extent, if any, should responsibilities under the preservation ordinance be delegated to full-time administrative staff, as opposed to the preservation commission or some other elected or appointed review body? Nationwide, it is extremely common for preservation commissions to delegate authority for minor decisions to professional staff.

This often is done to streamline the review process and liberate the preservation commission’s time to work on more long-range and/or controversial issues. For example, staff might be given the authority to approve certificates of appropriateness for minor alterations to designated buildings (e.g., window replacement).

The City of Danville delegates to the city staff a relatively large amount of authority for administering design reviews on regulated historic properties. This ordinance reflects an approach consistent with the notion that review by the commission is most effectively focused on controversial or questionable projects:

1. The Chief of Planning, or his or her designee, shall review the completed application within ten (10) working days after receipt. If the proposed work meets the minimum design standards in subsection 32-72.15, the Chief of Planning shall approve the application and notify the Heritage Resource Commission of such action.

2. If, in the judgment of the Chief of Planning, the proposed work does not meet the standards, the Chief of Planning shall forward the application to the Heritage Resource Commission for its review and determination. The Heritage Resource Commission shall make its decision within sixty (60) days after receipt of the application.81
Distinction between minor and major alterations also is seen in Palo Alto’s ordinance:

A minor alteration shall be subject to review by the director for the purpose of providing cooperative and constructive information to the property owner about alternative methods of substantially complying with the Secretary of the Interior’s Standards… A major alteration shall be reviewed by the historical resources board.82
Delegation of review authority often is done in practice but not codified in the ordinance.

One California community, for example, has for many years delegated a substantial amount of review under its preservation ordinance to its staff, probably as much as any other city in the country. Yet, until recently, that city’s preservation ordinance did not explicitly authorize the type of staff-level review for minor actions that was taking place.

This has now been addressed, however, through ordinance revisions.

The general rule for delegating authority from the preservation commission to staff is that responsibilities should not be delegated at random, but rather should be guided by detailed provisions included either in the ordinance or in formally adopted rules and regulations that are referenced in the ordinance.
81 Danville, California, Code of Ordinances, § 32-72.16 (Review and determination). 82 Palo Alto, California, Code of Ordinances, § 16.49.134.

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In addition to delegating authority for minor project reviews to staff, many jurisdictions increasingly are choosing to delegate to staff the ability to grant minor modifications to certain standards, a process akin to a zoning variance, in order to streamline ordinance administration. This allows the staff, in reviewing development applications, to deal flexibly with unusual issues that may be addressed simply with minor modifications to existing standards. An administrative modification process can make the development review process more efficient and less time-consuming. Jurisdictions typically allow minor modifications if the deviation from ordinance requirements advances the goals and purposes of the ordinance requirements, is more or equally as effective in achieving the relevant standards from which the modification is granted, or relieves practical difficulties in developing a site for reasonable economic use.

In order to place bounds on the staff’s discretion to approve such modifications, objective standards should be included that specify what may or may not be modified and the degree to which modifications may be granted. If certain types of standards are especially significant or controversial in a community, then staff-level modifications of those particular standards could be prohibited altogether. For example, the ordinance might allow staff to approve encroachments of up to a certain percentage in required setbacks, yet would prohibit entirely any modifications to sign regulations in historic districts.

Decisions to grant or deny modifications and other actions under a preservation ordinance, like other staff decisions, should typically be subject to appeal to a review board (e.g., a preservation commission or a Board of Zoning Appeals). The City of Davis makes the availability and mechanism for an appeal clear within the same section of its ordinance that authorizes the delegation of authority to staff:

The historical resources management commission is hereby given the authority to delegate certain minor projects to the city staff for review and approval or denial. The historical resources management commission shall establish guidelines for such projects to be reviewed by city staff. Appeals of city staff decisions shall follow the procedures established in chapter 40, article 40.37. 83 THE TAKINGS ISSUE IN PRESERVATION LAW
The Fifth Amendment to the U.S. Constitution prohibits the taking of private property for public use without just compensation. If the government physically occupies private property (such as to build a post office), then that action clearly qualifies as a taking and compensation is required. However, much current litigation focuses on whether regulations – such as preservation ordinances – can so affect a property’s value as to effect a taking.

The U.S. Supreme Court has held that, if regulations deny an owner all reasonable economic use of his or her property, then they do constitute a taking and the offending governmental body is liable for monetary damages for the period during which the 83 Davis, California, Code of Ordinances, § 40.23.080(B) (Alteration Permits).

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regulations were applied.84 If some economic use of a property is available, a takings claim is decided based on a case-specific factual inquiry, typically focusing on the nature of the government regulatory action and the landowner’s investment-backed expectations.
85 Under these rules, well-drafted preservation ordinances rarely result in successful takings claims.

While the prospect of paying damages can be disconcerting to local regulatory authorities, the Supreme Court has also established a number of procedural requirements requiring a prospective developer to seek relief from the local government prior to filing a takings claim.
86 Determining When a Taking Occurs
The takings issue analysis plays out in a unique fashion in a preservation context, since preservation law is less concerned with use, bulk, and density issues and focuses more on protecting structures from demolition and on the aesthetic features of new construction. Thus, a key issue is typically whether an existing building constitutes a reasonable use of property, and if it does not, whether it might be renovated so that a reasonable return can be obtained. Similarly, with regard to new construction, the inquiry will focus not as much on the proposed use (for example, whether a parcel might be used for commercial instead of residential development as the locality desires) but whether the planned structure is compatible with existing buildings in a historic area. If it is not, the question is whether any compatible design is also economically feasible.

In terms of defining the threshold of a viable takings claim, several principles stand out from past litigation:
• Designation alone rarely creates a burden sufficient to sustain a takings claim.
87 • Regulatory takings are not found in reference to highest and best use, nor does a substantial diminution in value necessarily result in a taking. 88 Rather,
the question is whether the preservation regulation denies all reasonable economic use of the property.
• Historic conditions provide the baseline for reasonable expectations of use of the property.
89 84 Lucas v. South Carolina Coastal Comm’n, 505 U.S. 1003 (1992). 85 Palazzo v. Rhode Island, 533 U.S. __ (2001). Tahoe-Sierra Preservation Council, Inc., et al. v. Tahoe Regional Planning Agency et al. (U.S. Supreme Court Docket No. 00–1167, decided April 23, 2002). 86 See, Agins v. City of Tiburon, 447 U.S. 255 (1980); San Diego Gas & Elec. Co. v. City of San Diego, 450 U.S. 621 (1981).
87 Historic Green Springs, Inc. v. Bergland, 497 F.Supp. 839, 848-49 (listing on the National Register of Historic Places is not a taking).
88 William C. Haas & Co. v. City and County of San Francisco, 605 F.2d 1117 (9th Cir. 1979), cert. denied, 445 U.S. 928 (1980) (reduction in allowable height from 300 to 40 feet, diminishing value from $2M to $100K is NOT a taking).
89 District Intown Properties Ltd. Partnership v. District of Columbia, (D.C. Circuit, Case No. 98-7209, decided December 17, 1999) (reasonable investment-backed expectations not frustrated when property bought then subdivided then landmarked then deemed entitled to only development on one overall lot).

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• A broad range of evidence and legal theories may be used to construct and defend a takings claim.90
The most famous preservation case to litigate the takings issue was Penn Central v.

New York City, in which Penn Central proposed building a 50-story skyscraper using air rights atop Grand Central Terminal, a designated historic landmark. 91 The city turned
down the application for a certificate of appropriateness to construct the skyscraper, deciding that the new building would so affect and change the exterior architecture of the landmark as to be inappropriate. The company appealed, arguing that the denial of the permit kept the company from using its air rights and thus was burdensome enough to constitute a taking. While a lower court agreed and held for the company, the U.S.

Supreme Court reversed and upheld the denial of the permit. The bottom line in the case, according to the Supreme Court, was the fact that the property had not lost all reasonable economic value, since it could still be used as a train station.

Penn Central demonstrates the difficulties a landowner faces in establishing a takings claim: Regardless of the harsh economic and practical effects of a design control regulation – which the courts have made clear are treated no differently than any other land-use controls – it is very difficult to demonstrate that a regulation deprives a landowner of all reasonable economic value in his or her property.

Potential Procedures to Avoid Takings Issues
Some municipal governments in California have introduced administrative procedures intended to discourage takings claims and attain resolution without litigation. The following language from a Palo Alto ordinance is useful:

A. Heritage Property may be demolished if….(2) the city council finds, after review and recommendation from the historical resources board, that maintenance, use and/or alteration of the resource in accordance with the requirements of this chapter would cause immediate and substantial hardship on the property owner(s) because rehabilitation in a manner which preserves the historic integrity of the resource: (i) is infeasible from a technical, mechanical, or structural standpoint, and/or (ii) would leave the property with no reasonable economic value because it would require an unreasonable expenditure taking into account such factors as current market value, permitted uses of the property, the value of transferable development rights and the cost of compliance with applicable local, state, and federal codes.

This Palo Alto language could be adapted in other communities to cover not only demolition, but also new construction, and/or to place the administrative procedure entirely under the purview of the planning board or an administrative official.

Another strategy in drafting local preservation ordinances to avoid takings claims is to give owners of historic properties credit for transferable development rights (TDRs) 90 City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687 (1999) (jury may determine deprivation of all reasonable economic use on many grounds). 91 438 U.S. 104 (1978).

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when a significant property is preserved. Successful TDR programs exist in several California municipalities, with the specific purpose of strengthening regulatory programs for historic preservation. These municipalities include San Francisco, 92 Pasadena, Los
Angeles, and San Diego.

CEQA AND HISTORIC PRESERVATION
Originally passed in 1970 and modeled after the National Environmental Policy Act (NEPA), the California Environmental Quality Act (CEQA) 93 is a statute intended to
require specific review of environmental impacts on projects undertaken by government agencies. As with NEPA, CEQA is composed largely of procedures and study requirements, and frequently provides the basis for litigation related to controversial land development projects. Yet unlike NEPA, CEQA has actual substantive requirements for mitigation of project impacts, and requires that the environmentally least adverse alternative be adopted if feasible.

While CEQA deals with a broad range of environmental considerations, historical resources are clearly within the purview of the statute. The statute’s purpose statement expressly notes that the quality of the “historic environment” is, through review, is to be maintained in California. CEQA issues are found in a variety of historic preservation cases. For example, redevelopment of a blighted downtown area may require a local government to weigh the benefits of preserving an historic building against the social and economic liabilities associated with maintaining the building in its historic location.

Or, a local government may have to consider similar issues under CEQA when adopting a new preservation ordinance.

CEQA compliance is a complex topic and the discussion below is intended to provide only a general overview of this issue as it relates to historic preservation. The Office of Historic Preservation’s website and Technical Assistance Series provide additional information.
94 In any case, this manual is not intended to provide legal advice, and it is recommended that an attorney be consulted with questions related to any potential legal issue related to CEQA.

The Relationship between CEQA Procedures and Local Preservation Ordinances Communities should reference the CEQA review process in their local preservation ordinances and clarify whether or not the local preservation decision-making review process will be influenced by the state-mandated CEQA review process.

CEQA has the potential to preclude further review of a proposal regarding an historic resource until the specific requirements of an EIR or MND have been initiated, if not completed. As a result, some communities draft preservation ordinances that allow local review only after appropriate CEQA procedures have been followed. The City of Fresno 92 See, San Francisco, California, Planning Code § 128(a). 93 Cal. Pub. Res. Code § 21000, et seq.
94 CEQA Technical Advice Series, CEQA and Historic Resources: CEQA Provisions, available at http://ceres.ca.gov/topic/env_law/ceqa/more/tas/page3.html .

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has taken this approach in its ordinance:
…No hearing shall be held by the Commission for applications or proposals to demolish, grade, remove or substantially alter the Historic Resource until such application or proposal has undergone environmental review in accordance with the California Environmental Quality Act…
95 Alternatively, some communities draft ordinances that allow local preservation review to proceed concurrently with the CEQA process, to the extent possible. For example, the City of Davis ordinance allows for extensions in the local review process to accommodate appropriate CEQA review.

If any action under this article is subject to the provisions of CEQA, the time in which such action must be taken shall be extended in order to allow time to comply with said Act, provided, however, that such action is taken within the time limits imposed by the Permit Streamlining Act.96
CEQA’s jurisdiction over properties of historic value may extend beyond those properties recognized under a local preservation ordinance. In other words, just because a historical property is exempt from a local preservation ordinance does not necessarily mean that it is excluded from applicable CEQA provisions. 97 Discretionary Actions versus Ministerial Actions
Whether CEQA actually applies to a particular project depends on whether that project is a “discretionary” or “ministerial” action for the government agency taking action. • Discretionary actions require some sort of judgment to be used by the decision-maker. CEQA applies to discretionary actions. If there is any aspect of the project that under any local ordinance, process, or procedure must undergo scrutiny, and there is review and discretion as to approval or issuance of a permit; or if the local ordinance places alterations to historic properties or their demolition under the review of a commission, then the project is discretionary and CEQA applies. For example, whether or not a proposed rehabilitation project will comply with specific conditions typically would be a discretionary decision. Importantly, CEQA review can apply to reviews of both demolitions and alterations, if that review is discretionary. • Ministerial actions typically involve little or no judgment on the part of the decision-maker. They are based on fixed standards or objective measurements. For example, whether a proposed rehabilitation would meet the generally applicable off-street parking requirements of the local zoning ordinance typically would be a ministerial decision. CEQA does not apply to ministerial actions.
95 Fresno, California, Code of Ordinances § 13-412 (Historic Resource Permit Review Process). 96 Davis, California, Code of Ordinances § 29.145.20 (Time Extensions). 97 See, Monterey, California, Code of Ordinances § 38.74(b) (exclusion from historic preservation ordinance do not create exemption for properties to which CEQA historic provisions apply).

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The distinction between ministerial and discretionary acts is not always clear in the context of historic preservation. Each local jurisdiction and special district must adopt procedures for implementing CEQA, and these procedures usually include a list of actions that are deemed ministerial. The language of the local preservation ordinance, and the inclusion or absence of certain elements, thus determines what CEQA procedures the local government will need to follow for projects affecting historic properties and how much authority to enforce preservation goals under CEQA is given to neighborhood associations and preservation advocacy groups.

The distinction between ministerial actions and discretionary actions is a case-specific inquiry
that may provide the basis for a temporary injunction of demolition or alteration activities while the issue is being reviewed by the courts. For example, if a preservation organization learns of the issuance of a demolition permit for a historical building, that organization could file for a temporary injunction allowing a court time to rule on issue of whether CEQA review is required prior to issuance of the demolition permit.98 Most CEQA case law regarding the distinction between ministerial and discretionary actions centers on the issuance of demolition permits. In some cases, a permit to demolish a building has been treated as a simple over-the-counter action under the Uniform Building Code, and thus California courts have found that the action is ministerial, rejecting claims that CEQA review is required.99 Local ordinances that lack any specific authority to review demolition or alteration permits for adverse effects on the historic environment are likely candidates for classification in the ministerial category.

However, California courts have held that CEQA compliance is required where a city has
an ordinance allowing discretionary review of demolition permits,100 or where a proposed impact to an historic resource is part of a larger project that is discretionary.101 For example, in the case of Friends of Sierra Madre v. City of Sierra Madre, the California Supreme Court recently held that, as a discretionary action, a city council must comply with CEQA before placing a measure on the ballot that would de-list designated historic properties.
102
98 Litigating while under temporary injunction is a common posture for cases in which a demolition is proposed and an intervening organization pleads inadequate CEQA compliance. See, League for Protection of Oakland’s Historic Resources v. City of Oakland, 52 Cal.App.4th 896, 903, [60 Cal.Rptr.2d 821,] (Cal. App. 1997); Citizens for Responsible Development v. City of West Hollywood, 39 Cal.App.4th 490, 498, [45 Cal.Rptr.2d 917,] (Cal. App. 1995).
99 Id., 15 Cal.App.4th at 87; Adams Point Preservation Society v. City of Oakland, 192 Cal.App.3d 203, [237 Cal.Rptr. 273,] (Cal. App. 1987); Environmental Law Fund v. City of Watsonville, 124 Cal.App.3d 711, [177 Cap.Rptr. 542 (1981).
100 San Diego Trust & Savings Bank v. Friends of Gill, 121 Cal.App.3d 203, [174 Cal.Rptr. 784,] (1981). 101 Orinda Ass’n v. Board of Supervisors, 182 Cal.App.3d 1145, 1171-72, [227 Cal.Rptr. 688,] (1986). 102 Friends of Sierra Madre v. City of Sierra Madre, 25 Cal.4th 165, 183-91 [105 Cal.Rptr.2d 214, 19 P.3d 567,] (Cal. 2001) (distinguishing for the purposes of CEQA between council initiated (discretionary) ballot measures
and voter initiated (ministerial) ballot measures).

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Determining Whether CEQA Applies
The intent of CEQA is to require all public agencies to study thoroughly the impact of a project prior to rendering a decision. This includes local, county, and state governments, any special district, and any public college or university.

Local preservation authorities, who qualify as a public agency under CEQA, must consider several important questions as they determine whether or not a particular action falls under the CEQA statute and its extensive set of guidelines:
103
• Is the project subject to CEQA? As discussed below, CEQA generally applies only to “discretionary” projects – those in which discretion is applied by a decision-maker. CEQA does not apply to “ministerial” projects that are evaluated based on fixed, objective criteria and involve no discretion. However, projects carried out by a public agency are always subject to CEQA. • Is the project exempt from CEQA? There are both statutory exemptions created by the state legislature and also categorical exemptions. In most cases, projects that will meet the Secretary of Interior’s Standards for the Treatment of Historic Properties are categorically exempt from CEQA. • Are historical resources involved? Under CEQA historical resources include, without question, properties listed in the California Register or determined eligible for the California Register by the State Historical Resources Commission.

Properties included in a local register or identified as significant in a historical survey are presumed to be significant for purposes of CEQA unless a preponderance of evidence demonstrates otherwise. Other resources may be considered to be a historical resource provided the lead agency’s determination is supported by substantial evidence. Finally, the fact that a resource is not listed in, or determined to be eligible for listing in the California Register, not included in a local register, or identified in a historical properties survey does not preclude an agency from determining the resource may be a historical resource. • If CEQA does apply, will the project have a substantial adverse effect on the significance of a historical resource? If the project will have no substantial adverse effect, the government agency taking action must issue a set of findings known as a Negative Declaration accompanied by the analysis that supports this conclusion (Initial Study). If the substantial adverse effects can be eliminated through mitigation measures, the agency may issue a Mitigated Negative Declaration (MND). Finally, on projects where the substantial adverse effects are too numerous or complex to reasonably address initially in an MND, CEQA requires the preparation of an Environmental Impact Report (EIR). The EIR analyzes project alternatives and the feasibility and effectiveness of various mitigation strategies. The EIR may be subsequently used to justify an MND. 103 Cal. Code Regs., tit. 14, § 15000, et seq.

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Definition of Historical Resources
Section 21084.1 of the CEQA statute defines the resources that are considered “historical resources” for purposes of CEQA:

For purposes of this section, an historical resource is a resource listed in, or determined to be eligible for listing in, the California Register of Historical Resources. Historical resources included in a local register of historical resources, as defined in subdivision (k) of Section 5020.1 [of the Public Resources Code], or deemed significant pursuant to criteria set forth in subdivision (g) of Section 5024.1 [of the Public Resources Code], are presumed to be historically or culturally significant for purposes of this section, unless the preponderance of the evidence demonstrates that the resource is not historically or culturally 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 5024.1 [of the Public Resources Code] shall not preclude a lead agency from determining whether the resource may be an historical resource for purposes of this section.

This broad definition is intended to be inclusive of all significant historic resources. This issue was litigated in a prominent recent case from Oakland, California, in which demolition of a 1923 Montgomery Ward department store building was proposed. The building had been noted as eligible for the National Register of Historic Places as part of a comprehensive inventory of the city’s historical resources, even though it had not been formally designated on any local, state, or national register. In that case, the court found that the historic designation in the survey (which was part of the city’s general plan) was sufficient to make the Montgomery Ward building historically significant for purposes of CEQA, even though there had been no formal designation action under the preservation ordinance.
104
A Negative Declaration105 is all that is required if the preponderance of evidence in the administrative record demonstrates that a structure in question is not a “historical resource” for purposes of CEQA.

Substantial Adverse Change
Another key question in CEQA cases involving historic preservation is whether or not the proposed action at issue is likely to have a substantial adverse change on the significance of a historical resource. According to CEQA, at Section 21084.1 of the California Public Resources Code, “a project that may cause a substantial adverse change in the significance of an historical resource is a project that may have a significant effect on the environment.”
A Negative Declaration is all that is required under CEQA if the proposed action will not 104 League for Protection of Oakland’s Historic Resources v. City of Oakland, 52 Cal.App.4th 896, 908, [60 Cal.Rptr.2d 821,] (Cal. App. 1997).
105 Cal. Pub. Res. Code §§ 21064, 21080(c)(1).

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have substantial adverse change on the historical resource.106 A Mitigated Negative Declaration107 is appropriate if mitigation measures (e.g., redesign of a building to preserve historically significant features) would eliminate the substantial adverse change in the significance of the historical resource.

Environmental Impact Reports
For projects involving an unmitigated significant adverse change on a historical resource, CEQA requires an Environmental Impact Report (EIR). 108 California law
requires that there be some “substantial evidence” on the record that an adverse change may occur, but the standard for evidence to this effect 109 is easy to satisfy: A
party claiming CEQA applicability need only assemble a “fair argument” from all available evidence that a project will negatively impact a significant historic resource. 110
In general, the EIR “must describe all reasonable alternatives, including those capable of reducing or eliminating environmental effects.”
111 One of the alternatives always
must be a “no project” scenario (i.e., no building addition, no demolition, etc.); however, some alternatives need not be considered if they are clearly infeasible. 112 If there are
historical resources present, one of the alternatives must be to preserve the historical resources. Also, cumulative impacts and pending projects must be accounted for in the analysis of alternatives.
113
Though CEQA is primarily presented as a procedural statute, its provisions do have some substantive effect on the outcome of certain cases. Among a series of CEQA directives to local government, municipal authorities are not, for instance, permitted to approve environmental impacts if feasible alternatives or feasible mitigation measures addressing those impacts are available.
114 As a result, a project may be sent “back to
the drawing board” by a court even after complying with all EIR requirements and 106 See, Baird v. County of Contra Costa, 32 Cal.App.4th 1464, [38 Cal.Rptr.2d 93,] (Cal. App. 1995) (to fulfill CEQA requirements a project involving no change in environmental conditions is required only to have a Negative Declaration).
107 Cal. Pub. Res. Code §§ 21064, 21080(c)(2).
108 Cal. Pub. Res. Code §§ 21061, 21100, 21100.1 (definition and contents of EIRs), 21155 (EIR process).
109 See, Cal. Pub. Res. Code § 21080(e).
110 League for Protection of Oakland’s Historic Resources v. City of Oakland, 52 Cal.App.4th 896, 908, [60 Cal.Rptr.2d 821,] (Cal. App. 1997) (without fulfilling EIR requirement, City could not proceed with demolition and redevelopment when its own documentation indicated an affected building was historically significant); see also, Communities for a Better Environment v. California Resources Agency, Cal. Ct.

App., 3
rd Dist. Case No. C038844, decided October 28, 2002 (holding invalid CEQA rule 15064(h), which permitted regulatory standards to serve as a benchmark for CEQA compliance, because the rule would undermine the statutory and judicial standard of a “fair argument” that significant impacts may occur). 111 Foundation for San Francisco’s Architectural Heritage v. City and County of San Francisco, 106 Cal.App.3d 893, 909-12, [165 Cal.Rptr. 401,] (Cal. App. 1986) (emphasis added). 112 Id. ($1,000,000 loss to developer to maintain an existing structure at the City of Paris store site is not a feasible alternative requiring analysis in EIR for CEQA compliance). 113 San Franciscans for Reasonable Growth v. City and County of San Francisco, 151 Cal.App.3d 61, [198 Cal.Rptr. 634,] (Cal. App. 1984) (Mitigated Negative Declaration is of little value and does not meet CEQA statutory requirements without placing the project in larger geographic and temporal context). 114 Cal. Pub. Res. Code §§ 21002, 21002.1
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procedures.115
Closing the CEQA Process
Where a CEQA process is required, a city or county must demonstrate that it has prepared the Negative Declaration, Mitigated Negative Declaration, or EIR in order to fulfill its CEQA obligations. In a typical CEQA process a community will certify an EIR or Mitigated Negative Declaration before issuing a permit for any activity affecting historic resources.
116 After the community has adopted an EIR or MND, the CEQA process remains open to legal challenges, but with typically short time frames for appeal, in order to ensure that all project review takes place in a timely manner and within a consolidated process.
117
Regarding the quality of CEQA documents, studies produced for CEQA compliance purposes are generally acceptable if they properly “ring the alarm bell” as to project impacts and disseminate project information in a manner that allows the public to intelligently weigh environmental (including historic) consequences of a project and have a say in the review process.
118
115 See, Orinda Ass’n v. Board of Supervisors, 182 Cal.App.3d 1145, 1168, [227 Cal.Rptr. 688,] (Cal. App. 1986) (razing historic structures disallowed when EIR showed no attempt to mitigate or demonstrate the infeasibility of mitigation).
116 See, Ciani v. San Diego Trust & Savings Bank¸233 Cal.App.3d 1604, 1611, [285 Cal.Rptr. 699,] (Cal.

App. 1991); Vedanta Society of Southern California v. California Quartet Ltd., 84 Cal.App.4th 517 (Cal.

App. 2000); League for Protection of Oakland’s Historic Resources v. City of Oakland, 52 Cal.App.4th 896, 908, [60 Cal.Rptr.2d 821,] (Cal. App. 1997).
117 See, Cal. Pub. Res. Code § 21167.4 (requests for hearing not filed within 90 days of CEQA challenge subject entire claim to dismissal); San Franciscans for Reasonable Growth v. City and County of San Francisco, 189
Cal.App.3d 498, 504, [234 Cal.Rptr. 527 (Cal. App. 1987); Mitchell v. County of Orange, 165 Cal.App.3d 1185, 1192, [211 Cal.Rptr 563,] (Cal. App. 1985). 118 Dusek v. Redevelopment Agency, 173 Cal.App.3d 1029, 1038-39, [219 Cal.Rptr. 346,] (Cal. App. 1985) (involving a proposal to demolish the Pickwick Hotel in downtown Anaheim, holding that compliance with CEQA does not require adherence to the minutiae of every technical provision).

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SECTION 6: CONSIDERATION OF ECONOMIC EFFECTS
Many California communities not only protect historic resources through regulations that restrict what property owners may do; they also provide economic incentives and assistance to encourage preservation. The adoption of economic incentives is an important tool to assist owners in returning often underused historic resources back to active service within the community.

ECONOMIC INCENTIVES
One of the most important forms of economic incentives for preservation is a state law (the Mills Act, California Govt. Code §§ 50280, et seq.) that allows owners of certain historic properties and local government assessors to enter into contracts for property tax reduction. Qualification for property tax reduction under this law is conditioned on maintenance of the property as a historic resource for a set period, usually the duration of the property tax credit and/or ten years.
119
In addition, many jurisdictions have established direct grant programs or revolving funds for rehabilitation. Still others have passed laws enabling owners to donate facade easements to the local government or private organizations, thereby making the owner eligible for special federal income tax deductions.

Many communities attempt to make several forms of economic assistance available.

For example, the Glendale, California, ordinance lists several forms of incentives and assistance, including the Mills Act property tax relief, reduction in parking requirements, and allowance of a broad range of allowable uses.
120
The Glendale example shows that government funding money is not the only tool available for preservation programs. Several cities have initiated programs to help owners of historical resources obtain private financing for rehabilitation or locate prospective buyers. Communities might also consider adopting policies to house government offices in designated historic buildings, or establish a listing service to attract potential tenants to a landmark building. The Danville, California, ordinance provides several other incentive options:

The Town of Danville may offer the following incentives to the owner(s) of property meeting the criteria for designation in order to encourage their participation in the preservation program:
a. Waive restrictions contained in Section 32-45, Downtown Business District, subsections 32-45.11, 32-45.12 and 32-45.14 on the location of personal service, service/commercial, service office, and office uses in Downtown Business District Areas 1, 2, and 4;
119 More information on the Mills Act can be found at the website of the California Office of Historic Preservation, Technical Assistance Series #12, “Mills Act Property Tax Abatement Program.” 120 Glendale, California, Code of Ordinances, § 15.20.070 (Incentive program for historic resources).

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b. If located within area 1, 2 or 3 of the Downtown Business District, a reduction in the parking requirements for any approved addition to the structure and/or site, or approved change in use;
c. Relaxation of development standards for additions to designated structures and/or site;
d. A reduction in the fees for the appropriate building permits required to do improvements;
e. Expedited processing of permit applications;
f. Liberal interpretation of the Historic Building Code; g. If located in the Downtown Business District, a reduction of the anticipated beautification assessment;
h. Availability of low interest loans for alteration of the improvement; i. Availability of grants for rehabilitation from a portion of the Town's retail sales tax revenues, as may be budgeted from time-to-time;
j. A reduction in property taxes;
k. Inclusion in a pamphlet to be distributed to residents and tourists; l. Identification plaques for designated improvements;
m. Such other incentives as Town Council may from time-to-time implement.121 The County of Santa Cruz provides a flexible approach in its zoning code that encourages the continued use of nonconforming historic properties.

The County of Santa Cruz’s 2004 code amendments provide a series of indirect incentives to encourage the continued used of historic properties:
a. State Historic Building Code. . . .
b. Parking. The parking requirements of Section 13.10.550 et seq., may be modified in connection with an application involving an historic resource. . . . c. Non-conforming structures. The ordinary maintenance and repair, structural enlargement, extension, reconstruction or alteration of a non-conforming historic resource shall be allowed according to Section 13.10.265(d). d. Floor Area Ratio. For development on properties where an historic resource exists, the Floor Area Ratio shall be 0.6:1.
e. Lot Coverage. For development on properties where an historic resource exists, maximum lot coverage shall be 1.125 times the standard lot coverage for the particular zone district. 122
Some communities, including San Juan Bautista, have adopted the Secretary of the Interior’s Standards for the Treatment of Historic Properties as the threshold to invoke exceptions to existing zoning codes, making the use of the Standards an indirect economic incentive.

The following preservation incentives shall be made available to properties listed on the City of San Juan Bautista Register of Historic Resources that undergo maintenance or alteration consistent with the Secretary of the Interior’s Standards for the Treatment of Historic Properties.
121 Danville, California, Code of Ordinances, § 32-72.5 (Incentives). 122 Santa Cruz County, California, Code of Ordinances, § 16.42.090 (Incentives).

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C. The following exceptions to the underlying zoning standards, upon grant of a Use Permit and Site Plan and a Design Review by Planning Commission:
a. Multi-family residential uses in a single-family residential district b. Commercial uses in a multi-family district
c. Industrial uses in a commercial district
d. Guest Houses on lots less than the minimum required lot size for the R- 1 and R-2 zoning districts. 123
The approaches identified above have one thing in common; they tend to defuse many of the economic issues surrounding historic resource regulation.

Not every community, particularly smaller ones, will be able to offer the various forms of economic assistance noted above - nor does the law require that they do so.

Fortunately, the economic development stakes are not as great in those places as they are in big cities in which millions of dollars may be involved in a single development. 124
The idea is to make preservation easy for owners of historical resources. Economic assistance may not only help preserve buildings but may also help keep a difficult case out of court. And if litigation does arise, such aids may make the difference to a court that would like to uphold restrictions but is troubled by a seemingly severe economic impact on the owner.

EDUCATION AND TECHNICAL ASSISTANCE
In addition to providing for economic assistance, in California, many current preservation ordinances (e.g., San Francisco, Oceanside, Oakland) note that it is the purpose and duty of the preservation commission to promote the preservation program.

Applications for inappropriate work on landmark properties through the certificate of appropriateness process can become contentious and controversial. Many people have the perception that historic preservation is necessarily expensive or difficult. Others lack the knowledge or skills to carry out sensitive maintenance or rehabilitation work and rely on quick fixes from the local building supply store. Many people are unaware of the history or significance of their neighborhood or town. Often, there are common perceptions about the extent of the local government’s regulatory reach — just what actions may the city deny or delay?
For these reasons, an important part of a comprehensive preservation program should be educational and outreach efforts to inform homeowners, developers, and others about why historic resources are significant in the community, and what steps the city is taking to protect those resources. Education efforts might target specific audiences with information that will be useful to them; the real estate community, for example, may wish to understand better any impacts that historic regulation will have on local home sales prices. Some communities, including the City of Ontario, take the time to explain to property owners the significance of their neighborhood, assist owners in identifying 123 San Juan Bautista, California, Code of Ordinances, Ch. 13,§ 11.13.100 (Incentives) 69 124
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and locating appropriate building materials such as siding and windows, and then recognize those property owners who carry out good projects.

Notwithstanding the publicity often given demolition battles, they are not the norm.

Effective education and outreach programs can help inform the public about the many benefits of preservation, and thus can help build support for voluntary compliance with preservation ordinances. The education process can both explain the specific mechanics of the protections afforded by the ordinance, and also can help citizens understand the local history and why historic resources are worth preserving.

ECONOMIC HARDSHIP
To ensure compliance with federal and state constitutional requirements, the ordinance should include a procedure allowing a property owner to make the case that, in some situations, enforcement of the ordinance will cause unusual and extreme economic hardship. This is analogous to the variance provisions of a standard zoning ordinance, which provide a “release-valve” in unusual cases where regulation of development and use of a property may potentially rise to the level of an unconstitutional “taking.” 125
From a policy perspective, it may also be desirable to allow for some degree of flexibility within a preservation ordinance in order to encourage rehabilitation and economic use of the property, to avoid making “mothballing” of regulated properties the result of historic preservation efforts. As courts continue to reject frontal challenges to preservation ordinances and review standards, commissions should expect that much litigation will focus on economic matters, such as whether the owner is earning a reasonable return on the property.

CURRENT ECONOMIC RETURN
While economic considerations should play no role in designating historical resources, they can play a central role in reviewing applications for certificates of appropriateness.

While most preservation commissions do consider the economic impact of the preservation regulation on the applicant, many do it somewhat haphazardly. Haphazard consideration of economic evidence is not only an invitation for a court challenge but may also fail to give the local commission all the information it needs to make a reasoned decision. In many instances, the real economic facts of a case may support preservation rather than demolition.

A key inquiry in determining whether preservation regulation is onerous centers on the current economic return on the property in light of the amount originally invested, taxes, and other considerations, including caliber of management. As the Supreme Court noted in Penn Central Transportation Co. v. New York City, 126 courts will examine
whether a historic property owner can earn a “reasonable return” and whether the historic property is “economically viable” in its present use or form. 125 U.S. Constitution, Amendment V (“nor shall private property be taken for public use, without just compensation”).
126 438 U.S. 104 (1978).

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In some communities, like New York, the preservation commission applies a fixed statutory definition of what constitutes a reasonable return. This approach may work well if the commission has resources to make a sophisticated analysis of reasonable return. Other communities use the standard zoning variance approach, one that often does not produce useful information regarding economic hardship.

In most jurisdictions, a better answer is to establish an administrative procedure to bring out certain facts that courts have held important in determining whether land-use regulation is overly burdensome. The reviewing body should require an applicant for a certificate of appropriateness to produce information regarding the price originally paid for the property, potential rental or lease income, the level of taxes, and the net profit derived from the historical resource, if any, over the past several years. Opponents of the proposed application might be given an opportunity to show there are feasible alternatives to demolition or that the historical resource could earn a reasonable return if properly managed. If the local government has such a procedure, the landowner should be required to utilize it before suing in court.

The Washington D.C. preservation ordinance127 demonstrates just how effective this approach can be. It establishes an administrative procedure whereby anyone seeking to demolish or alter a historical resource must produce evidence that a denial of a permit would cause serious economic deprivation. Since the ordinance was enacted, these provisions have been instrumental in court cases upholding the D.C. ordinance. 128

OWNER'S BONA FIDE ATTEMPT TO RENT OR SELL PROPERTY
Courts in several jurisdictions have held that an important factor in determining whether an owner has been deprived of all economic use of his property is whether there has been any bona fide effort to rent or sell the property. If an owner is holding the property off the market in anticipation of being able to demolish it, then any claim that the regulations prevent all reasonable use rings hollow. As explained in First Presbyterian Church of York v. City Council of York:
…the Church, having failed to show that a sale of the property was impracticable, that commercial rental could not provide a reasonable return or that other potential uses of the property were foreclosed, had not carried its burden of proving a taking without just compensation.129
127 D.C. Code Ann. §§ 5-1001-1015.
128 See, Committee of 100 v. District of Columbia, 571 A.2d 195 (D.C. 1990); Cf., 900G Street Assoc. v.

Dep’t of Housing & Community Dev., 430 A.2d 1387 (D.C. 1981) (diminution in cash value of property is not an undue economic hardship so long as some reasonable alternate economic use of property remains).
129 360 A.2d 257 (Pa. 1976). See also, Maher v. City of New Orleans, 516 F.2d 1051 (5th Cir. 1975); 900 G St. Assoc. v. D.C. Department of Housing & Community Development, 430 A.2d 1387 (D.C. App. 1981).

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Thus, a preservation commission should delve into these issues: Has the property been offered for sale through a real estate broker? Has the property been advertised in any newspapers? How was the selling price established, and was it reasonable?

FEASIBILITY OF PROFITABLE ALTERNATIVE USES
To present a case for a certificate of appropriateness for alteration or demolition, some communities require the historical resource owner to show that the existing use is not profitable and, furthermore, that it would not be feasible to renovate the property or undertake an alternative development compatible with the preservation of the property.

The owner of a historic property may claim that historic regulation or potential designation limits the economic use of a property, but California law does not recognize such a claim based only on maximum potential economic return. To illustrate, in an Orange County case, the planning commission found that an historic building at a noisy intersection could be appropriately intensified in use from single family residential to “garden office” uses. This recommendation did not, however, entitle the property owner to a change from the existing designation status.
130
Evidence regarding a profitable alternative use of the existing structure or development sensitive to preservation concerns is relevant to the issue of reasonable use. As required by the court in Lafayette Park Baptist Church v. Board of Adjustment of City of St. Louis
131 a landowner could be asked to make a case that alternatives to demolition are impracticable:

In order for the landowner to raise the question of unconstitutional application as to his property, he must prove that it is impractical to rehabilitate, and as we have stated, this contemplates not only infeasibility because of physical condition but also a negative answer to the question as to whether the property can be turned to use or account profitably. Economic profitability contemplates restoration, and if not, then the question arises: Can it be sold profitably? If the owner is unable to restore from an economic standpoint he must then establish it is impractical to sell or lease the property or that no market exists for it at a reasonable price. Only then is he entitled to a demolition permit.

And only then are his constitutional rights denied.

In the context of an application for a demolition permit, economic practicability of alternative economic uses was specifically raised in the California case of Foundation for San Francisco’s Architectural Heritage v. City and County of San Francisco, 132
where the court determined that substantial evidence existed for the city’s finding that no feasible economic use remained for the City of Paris building. More recently, the “substantial evidence” standard was again cited by a California court when affirming San Francisco’s decision to allow portions of its downtown Emporium Building to be demolished as part of a revitalization project.
133 The court noted that, in making the
130 See, Mitchell v. County of Orange, 165 Cal.App.3d 1185, 211 Cal.Rptr. 563 (Cal. App. 1985). 131 599 S.W.2d 61 (Mo. 1980); see also, Committee of 100 v. District of Columbia Department of Consumer & Regulatory Affairs, 571 A.2d 195 (D.C. App. 1990). 132 106 Cal.App.3d 893, 165 Cal.Rptr. 401 (Cal. App. 1980). 133 San Franciscans Upholding the Downtown Plan v. City and County of San Francisco (Forest City Drafting Historic Preservation Ordinances
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determination that no feasible economic use existed for the Emporium property, the applicant had followed provisions of the City Planning Code specifically devoted to viability of rehabilitation for properties of historical significance. Particularly, Planning Code §1112.1 states that an application to demolish an historically significant structure must include the following economic evidence:
(a)

For all property:
(1) The amount paid for the property;
(2) The date of purchase, the party from whom purchased, and a description of the business or family relationship, if any, between the owner and the person from whom the property was purchased;
(3) The cost of any improvements since purchase by the applicant and date incurred; (4) The assessed value of the land, and improvements thereon, according to the most recent assessments;
(5) Real estate taxes for the previous two years;
(6) Annual debt service, if any, for the previous two years; (7) All appraisals obtained within the previous five years by the owner or applicant in connection with his or her purchase, financing or ownership of the property; (8) Any listing of the property for sale or rent, price asked and offers received, if any; (9) Any consideration by the owner for profitable and adaptive uses for the property, including renovation studies, plans, and bids, if any; and (b) For income-producing property:
(1) Annual gross income from the property for the previous four years; (2) Itemized operating and maintenance expenses for the previous four years; (3) Annual cash flow for the previous four years.

It is important that economic evidence be considered in any case involving a potential impact to historic property, and San Francisco’s procedure provides a model for other California ordinances. Economic evidence is also an important consideration in the context of takings claims, as discussed in detail below.

CERTIFICATES OF ECONOMIC HARDSHIP
To keep the administration of a preservation ordinance running smoothly and to deal with cases of hardship, every ordinance should have what might be termed “safety valves.” Generally, preservation commissions will need flexibility in dealing with two situations: first, when an owner faces economic hardship because there is no reasonable economic use for the historical resource; and, second, when there is an economic use, yet legal restrictions, such as zoning regulations or building codes, preclude necessary renovations. If the owner can satisfy the reviewing body that applicable preservation restrictions are causing a unique and serious economic hardship, that body might grant relief (in the form of a permit to allow an alteration or new construction). Local governments must determine when and what types of such relief might be appropriate.

Development, Inc.), Case No. A095827, California Ct. App., First District, Division Three (decided Sept. 30, 2002, scheduled for publication in Cal. App. 4th).

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While it is easy to sympathize with an owner who is having a difficult time making ends meet because of high taxes, energy costs, and the like, the simple fact that a property is located in a historic district should never be, in and of itself, a reason to allow a variance from local preservation and land-use controls or to grant a demolition permit. Nor is the owner's desire to increase the property's economic return adequate ground for relief.

Such claims were rejected in a seminal case from New Orleans, in which the owner wanted to construct, in violation of the local ordinance, another building on a lot on which a historical resource was situated:
. . . in the absence of a showing that approval of . . . non-violative construction could not have been obtained from the Vieux Carré Commission, we cannot hold appellant suffered financial loss in being denied an opportunity to obtain an increased return from its property. Even if financial loss had been shown, such loss is only a factor to be considered in determining hardship and will not, standing alone, constitute a hardship sufficient to justify a variance. And here the hardship referred to, the requirement of conformity to two separate and sometimes conflicting standards of construction, is neither “unusual” nor “particular” to [the plaintiff]. It is common to all property owners in the zoning district in which [the plaintiff’s] lot is located and therefore is not a hardship which justifies the granting of a variance. To hold otherwise would have the effect of destroying the zoning district.
134
To the extent that local preservation controls are made part of the local zoning ordinance, state law may control situations in which relief due to economic hardship can be granted as part of the general variance process. Though the majority of California jurisdictions limit the variance power to special physical circumstances, there is no limitation placed on the consideration of economic hardships. California’s preservation enabling legislation likewise does not specifically define economic hardship for purposes of variances, so it appears in all California jurisdictions that the best approach may be to establish an administrative procedure whereby an owner who seeks relief bears the burden of showing that the historical resource cannot be put to some reasonable economic use in its present state. If it is determined through such a procedure that the property cannot be put to some reasonable economic use, the procedure should set forth options for next steps, perhaps including incentives to allow use of the property, variances from certain standards, or possibly acquisition by the local government.

The administrative procedure used to accept and review economic hardship information need
not be complicated. The Burbank ordinance contains a short section that succinctly establishes the purpose, content, timing, and criteria for issuing what is referred to as a Certificate of Economic Hardship (See excerpt below.). 134 Phillips v. Board of Zoning Adjustments of City of New Orleans, 197 So.2d 916, 916-20 (La. 1967).

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CALIFORNIA CODE EXCERPT:

CERTIFICATE OF ECONOMIC HARDSHIP

CITY OF BURBANK
Section§ 31-929(b)(2).

An owner of a designated historic place or structure of merit may request that he be allowed to alter the place or structure in such a manner as will adversely affect its distinctive significance, or that he be allowed to remove the structure, on the basis of extreme financial [de]privation or adversity. An application made on this basis shall be in accordance with procedures pr[e]scribed by the Commission.

The Commission shall be authorized to request the applicant furnish material evidence supporting his request for a Certificate of Economic Hardship. The Commission shall review all the evidence and information required of an applicant and make a determination within ninety (90) days of receipt of the application as to whether the denial of a Certificate of Appropriateness will deprive the owner of the property of all reasonable use of, or economic return on, the property.

If the applicant presents facts and evidence demonstrating to the Commission that failure to approve the application will cause an immediate hardship because of conditions peculiar to the particular structure or other feature involved, and the damage to the owner of the property is unreasonable in comparison to the benefit conferred to the community, the Commission may approve or conditionally approve such certificate.

As another example, the Santa Monica ordinance also includes provisions for a Certificate of Economic Hardship.135 The Santa Monica ordinance is somewhat more elaborate, with specific examples of the type of economic and feasibility evidence the Commission may consider, including a number of items very similar to the economic evidence listed in the sample San Francisco ordinance in the above section of this Manual. In addition to purely fiscal evidence, the Santa Monica ordinance includes an architect or engineer’s determination of structural stability and feasibility of rehabilitation.

The Certificate of Economic Hardship procedure also specifically instructs that hardships may not be caused by the owner’s negligence or intentional lack of appropriate maintenance.

As an example of policy in other jurisdictions, Denver has inserted a special use variance in its local zoning ordinance that permits nonresidential use of historical resources, such as professional offices, in residential zones where the owner can demonstrate economic hardship. Such relief is limited to designated historical resources, thereby avoiding the problem of widespread conversion of homes to commercial uses in residential areas.
135 Santa Monica, California, Code of Ordinances, § 9.36.160.

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SECTION 7: APPEALS
How are decisions made under the ordinance appealed, and to whom? A defined appeal process provides an option for a local administrative resolution to a claim that might otherwise spur litigation in the immediate aftermath of a decision by the preservation commission. Establishment of an administrative review process also produces a record for review in the event that a court challenge does follow from a preservation action.

An appeals section is a key feature in many historic preservation ordinances, though its presence is optional under typical enabling legislation. The appeals section generally clarifies the rights of property owners, public agencies, and other citizens to appeal decisions regarding local government historic preservation actions. Appeals provisions may also specify what types of decisions (e.g., designations, certificates of appropriateness) are open to appeal, as well as the timing and board action required for an appeal.

In California, the majority – though not all – of the local jurisdictions with current preservation ordinances contain an appeals section. Typically, staff decisions are subject to appeal to the preservation commission, and decisions by the commission are subject to appeal to the local legislative body. The City of Sacramento follows this approach:

The decision of the Preservation Director shall be subject to appeal to the [Design Review and Preservation] Board pursuant to Article VIII herein. The decision of the Board, including the decision of the Board on an appeal from the Preservation Director, shall be subject to appeal to the City Council pursuant to Article VIII herein. 136
The best approach is for preservation-related appeals to go to a specialized board, as is done in Sacramento, as opposed to a general Board of Adjustment, as is sometimes done when the preservation regulations are contained in the zoning ordinance.

Preservation ordinances often enumerate the specific types of decisions that can and cannot be challenged in an appeal. For example, the City of San Francisco specifically allows only appeals of disapproved, as opposed to approved, designation proposals. 137
The community should consider what parties have the right to appeal decisions under the ordinance. Some communities, such as the City of Los Angeles, state in their ordinance that “an appeal may be filed by the applicant or any aggrieved party.” 138 This
broad authority allows any member of the community a right to appeal a preservation decision. Similarly, the City of Davis gives an unqualified right of appeal to “any resident of the city,” but requires that the appeal must have at least one advocate from within the local community.
136 Sacramento, California, Landmarks Preservation Ordinance, § 15.124.360. 137 San Francisco, California, Planning Code, § 1004.5. 138 Los Angeles, California, Municipal Code, § 12.20.3(J).

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Other communities find it advantageous to provide a more explicit limitation on appeals, where an appealing party must have some sort of tangible or official interest in the outcome of the decision. The City of Berkeley, for example, allows for appeals by:
…the City Council on its own motion, by motion of the Planning Commission, by motion of the Civic Art Commission, by the verified application of the owners of the property or their authorized agents, or by the verified application of at least fifty residents of the city aggrieved or affected by any decision of the [Landmarks Preservation] Commission…. 139
Generally, communities that choose to limit the appeals process typically allow appeals only from parties that participated in the initial decision in some way, including the applicant, adjacent landowners who received notice of the initial decision, persons providing verbal or written testimony at a public hearing on the initial decision, and members of the local governing body. Often, the decision is made to limit appeals in communities where an open-ended appeals process has been used in the past to slow down the development approval process.

In addition to specifying what decisions are subject to appeal and who may file an appeal, the ordinance may also spell out procedural requirements for the appeals process, such as the fee required and the timetable for the filing and/or processing of appeals. A fee has the dual benefit of recapturing the cost of holding hearings and administering an appeals case, while also discouraging the filing of frivolous appeals as a stalling or harassment tactic. Typically, an ordinance will authorize the establishment of a fee to process a case, but will specify the exact amount of the fee in a separate resolution (which may be periodically adjusted by the governing body). A deadline for filing appeals assures that any challenge to a preservation decision will be resolved in a timely manner. A five- to fifteen-day period during which appeals may be filed is generally considered reasonable. San Diego’s language is typical:

The action of the Historical Resources Board in the designation process is final 11 business days following the decision of the Board unless an appeal is filed with the City Clerk no later than 10 business days after the action of the Board. 140
CALIFORNIA CODE EXCERPT:

APPEALS

CITY OF SANTA MONICA
Section 9.36.180(a)
Each of the following actions by the Commission may be appealed to the City Council:
• A determination of the Commission that an application for the designation of a Landmark or of a Historic District does not merit formal consideration by the Commission, and a determination thereto not to schedule a public hearing. • A decision of the Commission, after a public hearing, to approve, in whole or in part, or disapprove the designation of a Landmark.
• A decision of the Commission, after a public hearing, defining and describing an appropriate Landmark Parcel upon which a Landmark is situated. 139 Berkeley, California, Code of Ordinances, § 3.24.300(A). 140 San Diego, California, Municipal Code, § 123.0203.

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• A determination of the Commission, after a public hearing, amending, modifying or rescinding any decision to designate a Landmark or Landmark Parcel, or any preliminary or supplemental designations, determinations or decisions, as additions thereto.
• A decision of the Commission to approve in whole or in part, or disapprove an application for a certificate of appropriateness.
• Any decision of the Commission relating to a structure of merit. • The approval or disapproval of an application of a Landmark, Historic District, Structure of Merit, or certificate of appropriateness that occurred as a result of the expiration of the required time periods for processing such applications.

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SECTION 8: ENFORCEMENT
A preservation ordinance will only be as effective as the power and willingness of the community to enforce it. Ignoring the details of enforcement when drafting a local ordinance may have unfortunate consequences. In Chicago, for example, Rincker House, the second oldest structure in the city and a designated historical resource, was torn down without official approval by a developer who apparently found that the prospective profits from redeveloping the site far outweighed the puny penalties contained in the local preservation ordinance. In other municipalities, preservation commissions find that the enforcement of local controls, particularly in large districts, cause some serious administrative headaches—it is simply too expensive and time- consuming to keep an eye on designated historical resources to make sure the local law is being observed by owners. Thus, in drafting enforcement provisions of an ordinance, one should keep in mind several major issues, including remedies for noncompliance, maintenance and upkeep requirements, and ordinance administration.

REMEDIES FOR NONCOMPLIANCE
As more and more historical resources are designated and the scope of preservation controls is broadened to control everything from demolition of exterior features to day- to-day upkeep, the issue of remedies for noncompliance is certain to become more crucial. The challenge in drafting effective enforcement provisions is to craft remedies strong enough to deter violations and induce compliance, but not so draconian that courts shy away from imposing them. The experience with building and housing codes regulations is instructive. If monetary fines are set at a low level (as fines for ignoring preservation laws often are), owners conclude that, even if they are caught violating a building code provision, the economic consequences are insignificant or can be treated as just another cost of doing business. On the other hand, experience also demonstrates that heavy reliance on criminal penalties is less than optimal. For example, judges in most jurisdictions simply do not put people into jail for zoning code violations. The middle ground options outlined below are likely to be most effective, particularly when used in combination with one another.

Fines
Money fines are the most widely used method of enforcing local codes. A local government generally has statutory authority to issue a notice of violation (not unlike a traffic ticket) and then proceed to court and collect a fine if it can prove its case. For example, the Fresno ordinance authorizes substantial fines in its preservation code:

It shall be unlawful for any person to permit or maintain violations of any of the provisions of this article by undertaking the alteration, grading, removal, demolition or partial demolition of an Historic Resource or a building, structure, object or site within a Historic District without first obtaining the written approval of the Specialist, Commission or Council as provided in this article, or to defy any order or decision rendered by the Specialist, Commission or Council. Any violations of this article may be enforced as provided in this Code, except in the case of administrative citations issued pursuant to this Code, wherein the administrative penalty imposed shall be up to $10,000 for each Drafting Historic Preservation Ordinances
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violation. As part of any enforcement proceeding, violators may be required to reasonably restore the building, structure, object, or site to its appearance or condition prior to the violation, under the guidance of the Development Department.141 The Fresno example notwithstanding, the major problem with fines in a preservation context is that they are generally not high enough to deter violations. A fine of $500 for an illegal demolition is simply inadequate to deter anyone, especially commercial developers who stand to gain much by clearing a site for new construction.

In order for fines to serve as effective deterrents, they must be based on the degree of the offense. A sliding scale might be used to cover a variety of situations: a nominal fine for a first offender who out of ignorance fails to, for example, secure a necessary alteration permit and who agrees to rectify the error; a larger fine, perhaps $300, plus a further fine of several hundred dollars for each day the violation continues, for second offenders or where a violator is recalcitrant; and a significant fine, measured by the amount of the pecuniary gain derived from the offense, for a persistent offender or one who acted willfully to demolish a building. When used in tandem with other remedies, such as injunctive relief, fines can be an effective method of deterring future violations and also depriving landowners from ill-gotten economic gains.

Injunctive Relief and Compliance Orders
The primary goal of an enforcement provision should be to secure compliance with the local preservation law and to protect historical resources, not to punish offenders. Thus, while fines may be necessary to deter future violations, the preservation ordinance should vest the local government with power to seek injunctive relief to, for example, put an immediate stop to an illegal demolition. In more minor, everyday cases (e.g., when an owner has altered a historical resource without permission) administrative compliance orders issued by the preservation commission may be useful in securing voluntary compliance, as well as establishing a firm ground for court action if necessary.

The Berkeley ordinance expressly authorizes the use of abatement orders and injunctive relief: “In addition [to the city manager serving notice of the violation and ordering the violation to cease] the city attorney may seek injunctive relief or maintain an action in abatement to further the provisions of this chapter.” 142
Receiverships and Entry on to Land to Correct Violation If an owner of a historical resource ignores an administrative compliance order, a court- ordered receivership, which a court can usually establish under its power authorizing injunctive relief, can be very effective. To create a receivership, the local commission will first secure a court order requiring that an illegal alteration be redone or that the owner undertake necessary repairs as previously demanded in the administrative action. The commission should then ask that the court establish a receivership overseen by a third party who would collect rents, make repairs, and manage the property until compliance is achieved. While an owner could also, in these 141 Fresno, California, Code of Ordinances § 13.423 (Civil and Criminal Penalties). 142 Berkeley, California, Code of Ordinances, § 3.24.380(B).

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circumstances, be fined or held in contempt of court, neither of these remedies necessarily ensures that the historical resource is protected.

A variation on this approach is to give the local government the power, upon securing a judicial dec
ree, to enter onto the owner's property, make necessary repairs or alterations, and then place a lien on the property. Then, before the property can be sold, the local government must be reimbursed.

Forcing Reconstruction
There will be times when preservationists feel that reconstruction is the only adequate remedy in
a case when a historical resource (or at least part of it) has been destroyed.

While it may be useful to include such a provision in the local ordinance as an option in egregious cases, experience in analogous zoning cases indicates that courts can be expected to enforce such a penalty only under the most exceptional circumstances. In zoning cases, the analogous situation is in reverse: an owner builds a structure in violation of the zoning ordinance, and the court forces it to be demolished. Such a remedy is granted in only the rarest of cases. Most likely, the application of a forced reconstruction provision will be cases of partial demolition, where the building can be repaired to its original state without starting from scratch.

The West Hollywood ordinance contains language that permits a removal order as one alternative method
of enforcing the historic resources provisions of the zoning code:

A. Any person who violates a requirement of this Chapter or fails to obey an order issues by the Advisory Board or comply wi
th a condition of approval of
any certificate or permit issues under this chapter shall be guilty of a misdemeanor and subject to provisions of Section 1200(a) of this Code.

Any person who constructs, alters, removes or demolishes a cultural resource in violation of t
his Chapter shall be required to restore the building,
object, site or structure to its appearance or setting prior to the violation. Any action to enforce this provision may be brought by the City of West Hollywood or any other interested party. This civil remedy shall be in addition to, and not in lieu of, any criminal prosecution and penalty and any other remedy provided by law.
143
The local government may want to also consider including provisions for the removal (or modification) of new construction within historic districts where such new construction would adversely impact of the historic character of adjacent properties or the district as a whole. Recent cases in other jurisdictions have upheld the authority of local governments to apply such enforcement measures to new construction in historic districts.
144
143 West Hollywood, California, Code of Ordinances, § 19.58.180(B). 144 See, City of Dayton v. Carroll, 515 S.E.2d 144 (Ga. 1999).

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Loss of Further Entitlement
Especially in cases of demolition, a court may find forced reconstruction of the entire regulated structure to be an impractical remedy; however, a court will have little difficulty imposing a penalty that prohibits redevelopment of a previously regulated property in a way that is detrimental to its historic characteristics or in a way that provides unjust enrichment to the violator. For example, the Palo Alto ordinance restricts future building and development entitlements on a property where a preservation violation has taken place:

Alteration or demolition of a historic structure in violation of this chapter shall eliminate the eligibility of the structure's lot for any transfer of development rights, pursuant to the Palo Alto Comprehensive Plan, and such lot, if it is the site of an unlawfully demolished historic structure from which development rights have been transferred, shall not be developed in excess of the floor area ratio of the demolished structure for a period of twenty years from the unlawful demolition. 145
San Clemente’s ordinance provides an additional example:

Any person, whether principal, agent, employee or otherwise, who demolishes a structure on the City’s Designated Historic Structures List in violation of Section

17.16.170 Demolition of Historic Properties, shall be guilty of a misdemeanor. In addition, no Building Permit shall be issued for any new development on the property in question for a period of five years from the date the violation occurs, other than as may be required to comply with applicable health and safety requirements and regulations, and in no event shall any permit authorize the new construction to exceed the building square footage, lot coverage, and use of the original structure.
146

MAINTENANCE AND UPKEEP OF HISTORIC PROPERTIES
Many communities impose affirmative maintenance requirements on historic properties to ensure these properties are occupied, looked after, and repaired in a manner that will protect the historic integrity of both the structure and the surrounding area. Courts have been very supportive of ordinances that require general maintenance and upkeep of historic properties. Nevertheless, there are four primary issues to be considered in this area:
• First, communities should be sensitive to the possibility that complex and time- consuming procedures associated with preservation controls may persuade some owners to forego needed repairs simply to avoid the bureaucratic hassle. • Second, maintenance requirements should be accounted for in the local ordinance and may then be used to set a standard for improvement to historic properties.
145 Section 16.49.090(a)(4)
146 San Clemente, California, Code of Ordinances, § 17.16.170(F) (Penalty for Demolition of Historic Structures).

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• Third, there may be situations that call for the imposition of affirmative maintenance requirements where, through neglect, historical resources are eroding to a state of being beyond repair—so-called “demolition by neglect.” • Finally, preservation code drafters should be aware that most local building and health codes allow historical resources to be torn down despite opposition from the local preservation review body, based on the specific finding that the buildings have fallen into such disrepair that they are a threat to public safety.

This section examines these four issues and suggests considerations for drafting local ordinances to avoid associated problems.

Sensitivity to Procedural Requirements
Communities should think carefully about subjecting every minor change or alteration of a historical resource to review by the local preservation commission. The downside of such close scrutiny is that, if owners are forced to obtain a permit for every minor repair to their properties, the results will probably be either that the repairs are not made or are made without a permit. Moreover, burdensome procedures will win the preservation review process no friends politically.

One answer to this problem is to insert an exclusion in the ordinance for ordinary maintenance or minor alterations, as discussed below. The precise language will vary from community to community – based in part on established local procedures for granting building permits. The ordinance might give local officials some leeway in deciding what constitutes a major change that must be reviewed by the preservation commission, or it might exempt improvements below a specified dollar amount unless the impact on the historical resource is significant. As with other operative terms in a preservation ordinance, "ordinary maintenance” should be defined carefully.

Maintenance Requirements
Many local preservation ordinances require that historical resources be maintained in accordance with local building and housing codes. Others go further, specifying a list of structural defects or faults that must be repaired by an owner on a continuing basis. The Pasadena ordinance is typical and creates a broad duty to keep historic resources in good repair.

A. Nothing in this chapter shall be construed to prevent the ordinary maintenance and repair of any exterior architectural feature of any designated landmark that does not involve a change in design, material, color or appearance thereof; nor the repair of an unsafe or dangerous condition as provided in Section

2.75.330.

B. Every landmark and historic treasure shall be maintained in good repair by the owner or such other person who has legal possession or control thereof, in order to preserve it against decay and deterioration to the extent practicable.147
147 Pasadena, California, Code of Ordinances, § 2.75.150 (Maintenance of landmarks and historic treasures); see also, Santa Monica, California, Code of Ordinances, § 9.36.190 (duty to repair); Berkeley, Drafting Historic Preservation Ordinances
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Minimum maintenance standards are not particularly controversial from a legal standpoint. The leading case is Maher v. City of New Orleans, in which the court rejected an argument that the local ordinance's maintenance provision was unconstitutional:

Once it has been determined that the purpose of the Vieux Carré legislation is a proper one, upkeep of buildings appears reasonably necessary to the accomplishment of the goals of the ordinance.... The fact that an owner may incidentally be required to make out-of-pocket expenditures in order to remain in compliance with an ordinance does not per se render that ordinance a taking. In the interest of safety, it would seem that an ordinance might reasonably require buildings to have fire sprinklers or to provide emergency facilities for exits and light. In pursuit of health, provisions for plumbing or sewage disposal might be demanded. Compliance could well require owners to spend money. Yet, if the purpose be legitimate and the means reasonably consistent with the objective, the ordinance can withstand [an] attack of invalidity.
148
Many other cases from across the country uphold minimum maintenance requirements contained in local building codes. However, that is not the end of the legal inquiry.

Notice that the Maher court said the regulations could withstand a frontal attack. That was legal shorthand for the proposition that if an owner can show affirmative maintenance requirements are overly burdensome as applied, then they may be invalid.

That is the general rule for virtually all building code requirements. A law that obligates owners of new apartment buildings to install expensive smoke detectors, fire and other prevention equipment may be valid on its face, but a court might strike it down as applied retroactively to a small, 50-year-old apartment building on which the rental return is very low. Although courts have almost uniformly upheld tough code provisions despite relatively large expenditures, for the most part, courts apply a reasonableness test in assessing the constitutionality of building code provisions—the importance of the public interest at stake versus the economic burden on the owner. Local review bodies thus should be prepared to defend affirmative maintenance requirements with proof of public need and evidence that rehabilitation is economically feasible, or the local preservation ordinance may include relief provisions in the local ordinance to deal with more difficult cases.

In California, local governments are required to administer and enforce the State Historical
Building Code (SHBC). This code is specially tailored to meet the needs of historic properties in need of maintenance and repair. Local preservation ordinances frequently contain language requiring conformance with the SHBC, but even lacking that language, individual owners still have the statutory right to utilize the SHBC.

Maintenance requirements raise another important legal issue related to property inspections
. Compliance with most preservation restrictions, notably those relating to demolition or alteration, can be policed with relative ease because violations are California, Code of Ordinances, § 3.24.290.
148 516 F.2d 1051, 1066-67 (5th Cir. 1975).

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obvious and usually can be discovered from a public street without entering onto the property itself. But what about cracks in the foundation that threaten a historic building or a leaky roof that might eventually cause serious structural problems? To detect such problems, preservation commissions may include language that allows a program of periodic inspections. In the landmark case of Camara v. Municipal Court, 149 the U.S.

Supreme Court ruled that the Fourth Amendment did apply to administrative searches and that a warrant based on “administrative probable cause” was required before an inspection could occur.

The Court explained that there is sufficient probably cause to issue a warrant:
…if reasonable legislative or administrative standards for conducting an area inspection are satisfied with respect to a particular dwelling. Such standards…may be based on the passage of time, the nature of the building (e.g., a multifamily apartment house), or the condition of the entire area, but they will not necessarily depend upon specific knowledge of the condition of the particular dwelling. If a valid public interest justifies the intrusion contemplated, then there is probable cause to issue a suitably restricted search warrant.

A periodic inspection program may run into fewer Fourth Amendment objections in practice than in legal theory. Still, it is important that such a program be governed by predetermined standards as suggested in Camara to dispel any claim that the program does not meet the requirements announced in that case.

Demolition by Neglect
Many communities in California are seeking guidance on how to address the gradual destruction of historic buildings by property owners who fail to engage in regular maintenance and upkeep of their properties, and who then request a demolition permit on the grounds that rehabilitation of the structure is no longer practicable. In this situation, one alternative is to authorize the jurisdiction to fix neglected properties and then place a lien on the property and recoup the cost of its expenditure at the time the property is sold.

Local commissions will find it very useful if they have the authority to protect a property that is being demolished by neglect. A number of communities have enacted laws that permit a specified local agency to take necessary steps to secure a derelict historical resource against vandalism. Others take the additional step of granting the local government and its preservation agency the power to make repairs and bill the owner.

In at least two U.S. cities (Richmond, Virginia, and San Antonio, Texas), the local preservation commission has the power to initiate or recommend condemnation proceedings where demolition by neglect is occurring, allowing the local government to assume ownership of and begin repairs on neglected properties. The viability of these more far-reaching ordinance provisions will generally depend on the economic impact to an owner. Courts may be less inclined to make an owner pay for necessary repairs if 149 387 U.S. 523 (1967); see also, Meffert, “Affirmative Maintenance Provisions in Historic Preservation: A Taking of Property?” 34 S.C. L. Rev. 713 (1983).

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the chances of earning reasonable return on the property are slim. Nevertheless, courts have not hesitated to impose costs or deny development rights to historical resource owners who have allowed properties to fall into serious disrepair.150 Fresno’s Minimum Maintenance provisions, included below, are a model for creating specific maintenance duties, enumerating areas of neglect that could lead to serious repair costs if left unattended, and also serve as a model of a general regulation prohibiting demolition by neglect.
a. All designated Historic Resources including Contributors to any Historic District shall be preserved against decay and deterioration, kept in a state of good repair and free from structural defects. The purpose of this section is to prevent an owner or other person having legal custody and control over a property from facilitating demolition of a Historic Resource by neglecting it and by permitting damage to it by weather and vandalism.
b. Consistent with all other state and city codes requiring that buildings and structures be kept in good repair, the owner or other person having legal custody and control of a property shall repair such building or structure if it is found to have any of the following defects:

1. Building elements so attached that they may fall and injure members of the public or property.

2. Deteriorated or inadequate foundation.

3. Defective or deteriorated flooring.

4. Members of walls, partitions or other vertical supports that split, lean, list or buckle due to defective material or deterioration.

5. Members of ceilings, roofs, ceiling or roof supports or other horizontal members which sag, split or buckle due to defective materials or deterioration.
or deterioration.

6. Fireplaces or chimneys which list, bulge or settle due to defective material

7. Deteriorated, crumbling or loose exterior plaster.

8. Deteriorated or ineffective waterproofing of exterior walls, roofs, foundations or floors, including broken windows or doors.

9. Defective or lack of weather protection for exterior wall coverings, including lack of paint, or weathering due to lack of paint or other protective covering.

10. Any fault, defect or deterioration in the building which renders it structurally unsafe or not properly watertight.
c. If the Commission has reason to believe that a Resource is being neglected and subject to damage from weather or vandalism, the Commission shall direct staff to meet with the owner or other person having legal custody and control of the Resource and to discuss with them the ways to improve the condition of the property. If no attempt or insufficient effort is made to correct any noted conditions thereafter, the Commission may, at a noticed public hearing, make a formal request that the Development Department or other appropriate department or agency take action to require corrections of defects in the subject 150 District of Columbia Preservation League v. Department of Consumer and Regulatory Affairs, 646 A.2d 984 (D.C. App. 1994) (demolition permit for dilapidated structure revoked because building condition was caused by neglect of owner, contrary to D.C. preservation act).

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Resource in order that such Resource may be preserved in accordance with this article.151
Public Safety Exclusion
Many local preservation ordinances contain provisions whereby a historical resource declared to be a public hazard can be altered, repaired, or demolished without the local preservation review body having any say whatsoever. The code in Berkeley contains a provision for a public safety exemption from historic preservation regulations, but carefully instructs that the exemption is specifically limited to activities necessary to correct public safety issues (preventing demolition in many cases):

None of the provisions of this chapter shall be construed to prevent any measures of construction, alteration or demolition necessary to correct or abate the unsafe or dangerous condition of any structure, other feature, or part thereof, which such condition has been declared unsafe or dangerous by the planning and community development department or the fire department, and where the proposed measures have been declared necessary, by such department or departments, to correct the said condition; provided, however, that only such work as is reasonably necessary to correct the unsafe or dangerous condition may be performed pursuant to this section. In the event any structure or other feature is damaged by fire or other calamity or by an act of God, or by the public enemy to such extent that in the opinion of the aforesaid department or departments it cannot reasonably be repaired or restored, it may be removed in conformity with normal permit procedures and applicable laws. 152
On their face, public safety exclusions appear reasonable—if a building is about to tumble down on pedestrians below, surely something must be done quickly—but in practice, they are sometimes used by a local government or owner to circumvent local review procedures or to avoid facing up to hard choices between a proposed redevelopment scheme and preservation of an important historical resource.

At a minimum, local preservation ordinances should attempt to strike a balance between concerns about public safety and preservation, perhaps allowing the preservation commission to comment on the proposed demolition unless the legislative body specifically finds there is an immediate and serious threat to the public safety that cannot be addressed through less drastic measures. At least one city, Washington, D.C., has taken an additional step. Its local preservation ordinance provides that the local Board of Condemnation cannot issue permits for demolition of private historical resources except in accordance with the procedures and standards set forth in the preservation law.
151 Fresno, California, Code of Ordinances, § 13.421 (Minimum Maintenance). 152 Berkeley, California, Code of Ordinances, § 3.24.280 (Landmarks, historic districts or structures of merit – Unsafe or dangerous conditions – Effect); see also, Davis, California, Code of Ordinances, § 29- 145.17 (Unsafe or dangerous conditions).

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DEVELOPMENT MORATORIA AND EMERGENCY DEMOLITION BANS
Several California communities, including Palo Alto most recently, have adopted interim regulations to prevent demolition of historic resources or new construction in historic areas while new permanent regulations are being drafted or a comprehensive historical resources inventory is being prepared. Palo Alto will not process applications for development of a property while designation procedures are taking place under the preservation ordinance, stating in the City code that,
…no building, demolition, or other city permit for a change that would constitute an alteration or demolition of a proposed heritage property shall be issued while the application for designation is pending…153
The Redondo Beach ordinance contains a similar provision to suspend the issuance of permits once historic preservation review is initiated:

Once a completed application has been accepted for the designation of a landmark or an historic district, no building, alteration, demolition, removal, or relocation permits for any historic resource, improvement, building, or structure relative to a proposed landmark or within a proposed historic district shall be issued until a final determination is made regarding the proposed designation, except as provided under Article 6 of this chapter.
154
In California, municipal government moratoria on development permits are allowed under the authority of Government Code Section 65858.155 Courts have also generally upheld such emergency provisions, realizing that surveys, studies, and ordinance drafting may be necessary and cannot be done overnight. A recent U.S. Supreme Court case from California affirmed the ability of local governments to enact temporary moratoria.
156
In jurisdictions where demolitions are ministerial, situations continue to arise in which an owner is able to secure a permit to demolish a potentially significant historic building.

When preservation interests learn of the plans, a battle to protect the structure often ensues. In other instances, a preservation commission may announce its intent to study a neighborhood for possible designation as a historic district. Some owners, in an attempt to circumvent anticipated future restrictions, may rush to city hall to secure demolition permits. What can a local government do under these circumstances to protect threatened historical resources without violating the legal rights of property owners?
Surveys take time and can be expensive, and, even when a survey has been completed, it may be several years before identification is translated into designation.

What, then, should a local commission do when a building of landmark quality that 153 Palo Alto, California, Code of Ordinances, § 16.49.80. 154 Redondo Beach, California, Code of Ordinances, § 10.4.305 (Delay of work pending hearing). 155 See, Bank of the Orient v. Town of Tiburon, 220 Cal.App.3d 992 [269 Cal.Rptr. 690] (Cal. App. 1990). 156 Tahoe-Sierra Preservation Council, Inc., et al. v. Tahoe Regional Planning Agency et al., U.S.

Supreme Court Docket No. 00–1167, decided April 23, 2002.

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enjoys no official protection is threatened with demolition? Provided the Government Code authorization for local government moratoria applies in the given situation, the local government or commission may enact a temporary ban or moratorium that would halt all activities that could be affected by the survey or designation process, including, potentially, revocation of an already issued building permit or halting demolition. The availability of this type of authority in California may be evidenced by Davis’s ordinance, which contains the following provision that could potentially halt a wide variety of development activities:

While the commission’s public hearing or the City Council’s decision on the commission’s [designation] recommendation is pending, the City Council upon the commission’s recommendation may declare a work moratorium. During the moratorium, any work that would require an alteration permit if the improvement were already designated a historical resource or outstanding historical resource or if it were already located in a historic district shall not be carried out. The work moratorium will end upon the earlier of the City Council’s decision on the proposed designation, the moratorium termination date designated by the City Council, or one hundred eighty calendar days from the date of commencement of the moratorium.
157
Invoking emergency demolition bans raises two major legal issues, involving procedural due process and "vested rights." While the constitutional guarantee of due process generally requires that affected persons be given notice and an opportunity to be heard before adoption and application of a restrictive ordinance, it is well established that a governmental body may take temporary emergency action without prior notice or hearing if affected persons are afforded an opportunity to be heard before such action becomes final. For example, as soon as possible after enacting a demolition ban, the local government should afford the owner or developer an opportunity to be heard and contest designation or revocation of a building permit. 158
Assuming that the local government has satisfied procedural due process dictates, it must still face the so-called "vested rights" issue. This arises, for example, when a developer, relying on existing law, spends money in anticipation of demolishing a building of landmark quality. Although there is no such thing as a "vested right" under the U.S. Constitution, most state courts recognize it in some form. If developer has done nothing more than obtain a demolition or building permit, they probably cannot claim a vested right to proceed. If, however, the developer has signed a contract with a demolition company and has spent funds to plan for a new development on the site prior to enactment of the ban, the question is a more difficult one. The vested rights issue can be defused by establishing an administrative proceeding that places the burden on developers to produce evidence that they should be allowed to proceed. In this way, the local government can determine if the facts support its decision to forbid demolition.
157 Davis, California, Code of Ordinances, § 29-145.11 (Designation Procedures – Work Moratorium). 158 See, Selinger v. City Council, 216 Cal.App.3d 259, 270-71 [216 Cal.Rptr. 499] (Cal. App. 1989).

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While valuable and often essential to preservation, moratoria have serious ramifications and thus require forethought. Of equal importance, they should not be used as an excuse to do nothing. The ordinance establishing the moratorium should state the reasons for its invocation, set forth a specific expiration date, and contain a safety valve to allow the preservation commission to deal with hardship cases. From a practical perspective, the types of development or alteration to be prohibited or made subject to review should be carefully delineated.

Administration
Elaborate controls on alterations, strong affirmative maintenance requirements, and tough enforcement provisions may look good on paper but be unworkable in practice if the local government lacks adequate staff or will to enforce the law.

From a practical aspect, local commissions should establish procedures to ensure uniform and efficient enforcement of the preservation law. Communities should consider all options to reduce the administrative burden of monitoring demolition and alterations as well as the affirmative maintenance of hundreds of historical resources. A portfolio of photographs of existing (pre-modification) conditions for each historical resource can often be a useful tool toward this end. If an owner illegally alters a structure, the change will usually show up clearly in photographs. Photos also are very useful evidence in court enforcement proceedings.

What other information should be in the records maintained for each property? Not to be overlooked is the simple fact of who owns each property and where they may be served with legal notice. This information may be crucial if emergency action is necessary to stop an illegal demolition or alteration. The file also should include a history of the property from an enforcement perspective—past violations, inspection results, and so forth.

All this information will be crucial if a case goes to court. It is not uncommon for enforcement cases to be handled by a municipal attorney who is largely unfamiliar with the case and who has little time to brush upon the facts before trial. Thus, whether a case is lost or won may depend on whether the preservation commission and enforcement staff has put together a good factual case. The property file can supply essential evidence, particularly photographs and inspection records. A chronology summarizing the case for the attorney—notices of violation, attempts at voluntary compliance, and the like—will also be very helpful.

A subsidiary issue is who should be liable for the fines or duty to repair. Most land-use ordinances provide that the property owner or person controlling the property, particularly a lessee, can be held liable for violations. In a preservation context, the ordinance drafters should consider allowing actions against entities such as construction firms or demolition companies responsible for illegal demolition or alterations.

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Another issue is who should be able to enforce local preservation regulations—the local government, private citizens, or both. Many environmental and land-use laws allow citizens to bring suits to enforce preservation provisions, particularly when the relevant government body has refused or failed to act. Who is empowered to initiate enforcement actions will depend largely on local considerations. Does the local government have adequate resources to enforce the law? Is a citizen suit provision politically feasible? Is it likely that citizens or neighborhood groups would use such a power?
Clearly, municipalities should attempt to enforce preservation restrictions as evenhandedly
as possible. Failure to do so should not lead to wholesale invalidation of such restrictions, but in close cases in which compliance would, for example, create a serious economic hardship, the courts may be hesitant to enforce the local law.

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SECTION 9: DEFINITIONS AND SEVERABILITY

DEFINITIONS
Effective local preservation ordinances will contain a thorough and carefully conceived set of definitions for essential terms. Nationally, court cases have shown that it is not sufficient to rely on common sense where terms may be subject to judicial challenge. A District of Columbia court, for example, found that a proposal to completely gut an historical hotel, leaving only the façade standing, was not subject to the preservation ordinance because the D.C. ordinance at the time applied only to “alterations.” The court found that the proposal was a “demolition” and therefore specifically exempted from preservation regulations. According to an Ohio case, signs in an historic district were not subject to the rules of a local preservation ordinance because the ordinance applied to only “buildings” and “structures.” In both these cases the authority of a local preservation ordinance was diminished without adequate definitions to clarify its intent.

The ordinance should clearly define the distinctions between alterations and demolitions, and should clarify the types of buildings, structures, signs, or other features that are regulated under the ordinance. Other essential terms that should be defined in a typical ordinance include (but are not limited to):
• “Historical resource” (or “landmark,” “historical monument,” or other term used in the local ordinance to designate a property of preservation quality), • “Contributing building or structure,”
• “Significant features or characteristics,”
• “Structure of merit,”
• “Dangerous building,”
• “Certificate of appropriateness,”
• “Project” (or “development”),
• “Environmental change,” and
• “Affected property.”
Most preservation ordinances also contain a set of definitions for the various actors in the preservation process. Terms such as “applicant,” “planning director,” and “preservation commission” are routinely defined, often in a shortened form for convenience (i.e., “commission” for preservation commission). Local governments that authorize an “interested party” or “aggrieved party” to file appeals should also define those terms, as appropriate.

CALIFORNIA CODE EXCERPT:

DEFINITIONS
City of Danville
32-72.2 Definitions.

As used in this chapter, the following words and phrases have the following meanings:

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Alteration shall mean any demolition, exterior change or modification to a historically significant resource or heritage resource or of a contributing property located within an historic district including, but not limited to:

1. Exterior changes to or modifications of structure, architectural details or visual characteristics including paint color and surface texture;

2. Grading or surface paving;

3. Construction of new structures;

4. Cutting or removal of trees and other natural features;

5. Disturbance of archaeological sites or areas; and

6. The placement or removal of any exterior objects including signs, plaques, light fixtures, street furniture, walls, fences, steps, plantings and landscape accessories that affect the exterior visual qualities of the property.

Architectural feature shall mean the architectural elements embodying style, design, general arrangements and components of the exterior of any building or structure, including, but not limited to, the kind, color and texture of the building materials and the style and type of all windows, doors, lights, signs and other fixtures.

Certificate of Approval shall mean a certificate issued pursuant to this chapter approving any proposed alteration to a historically significant resource, a heritage resource or a contributing property located within a historic district.

Contributing property shall mean a building, structure, site, feature or object within an historic district that embodies the significant physical characteristics and features, or adds to the historical associations, historic architectural qualities or archaeological values identified for the historic district, and was present during the period of significance, relates to the documented significance of the property, and possesses historic integrity or is capable of yielding important information about the period.

Design guidelines shall mean the “Town of Danville Design Guidelines for Heritage Resources” adopted by the Town and as may be amended from time to time.

Heritage resource shall mean a structure, site, improvement or natural feature that has been designated for heritage preservation pursuant to Section 32-72.6.

Heritage Resource Commission (HRC) shall mean the Town’s Heritage Resource Commission established pursuant to the provisions of this Code… Other terms will require definition based on the specific policies enacted in a local preservation ordinance. For example, if a local jurisdiction elects to provide an administrative process for economic hardship claims, then such terms as “economic hardship” and “reasonable return” should be defined. Similarly, if a timetable for appeals is incorporated into the ordinance, definitions should be provided for “business days” or other measure of time used in the appeals section. Finally, the definitions section may be used to provide for a shortened version of any phrase used multiple times within the Drafting Historic Preservation Ordinances
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ordinance (e.g., “Secretary’s Standards” refers to the Secretary of the Interior’s Standards for the Treatment of Historic Properties).

Placement of the definitions section at the end of a preservation ordinance, like a glossary in a book, is recommended as a way to clarify that the definitions are uniformly applicable to all provisions of the preservation ordinance. Where a preservation ordinance is codified within a larger development or zoning code, it is advisable to incorporate preservation-related definitions within the general definitions section of the overall ordinance. Consolidating all definitions within a single section is an effective way to identify and eliminate potentially conflicting uses of the same or similar terms.

Another way to eliminate potential confusion is to use terms and definitions shared by the National Register, the California Register, and the CEQA guidelines. These definitions are commonly understood and have withstood the test of time and judicial challenges. When the ordinance uses the same terms and definitions as used in CEQA, it is facilitates environmental reviews and promotes better understanding among decision makers, consultants, and members of the community.

SEVERABILITY
It is important to include a severability statement to protect the ordinance as a whole in case a particular section is later determined to be unconstitutional or void. Danville, Fresno, and Davis all include the following language in their ordinances:

If any section, subsection, subdivision, paragraph, clause or phrase in this ordinance, or any part thereof, is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity of the remaining sections or portions of this ordinance or any part thereof. The Town Council hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause or phrase of this ordinance, irrespective of the fact that any one or more sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases may be declared invalid or unconstitutional.

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CONCLUSION
Because historic preservation takes place at the local level, the ordinance is perhaps the most important tool in developing and implementing a successful preservation program. Because communities have different preservation goals and issues, no single “model” ordinance exists. However, as demonstrated throughout this manual, there are key issues that all jurisdictions will want to address.

Below is a checklist which can be used to analyze existing or draft ordinances.

Note that in some communities, key elements of the preservation process may be found in other local ordinances and regulations.

ORDINANCE REVIEW CHECKLIST

JURISDICTION REVIEWER
DATE OF REVIEW Comments

STATEMENT OF PURPOSE/ GOALS
Legitimate Purpose of Government
Resource types to be protected
Survey & inventory
How to protect
ENABLING AUTHORITY – LEGAL BASIS

ESTABLISH PRESERVATION COMMISSION
Powers & Authority
Existing zoning and land use regulations/tools
Level of authority
Monitoring
Enforcement
Duties
Qualifications of commissioners
Terms of service
Relationship to other Loc Gov. LUP entities

PROCEDURES & CRITERIA FOR DESIGNATION
Property types to be protected
Criteria for eligibility
Interiors
Who may apply/nominate
Application/nomination format
Owner Consent/objection
Public notice
Fees
Alternatives to designation
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Recordation

PROCEDURES & CRITERIA FOR REVIEWABLE ACTIONS
Actions Subject to Review Defined
Demolition/Major alteration
New construction in historic districts or areas
Design review
Cumulative effects
Hazardous/Unsafe Conditions
Review Authority (Binding or Advisory)
Legal Effects of Review
Process
Fees
C

ONSIDERATION OF ECONOMIC EFFECTS
Incentives
Extreme economic hardship
Provisions to prevent mothballing
Inverse condemnation
A

PPEAL PROCEDURE
Administrative resolution of contested decisions

ENFORCEMENT
How to ensure compliance
Required Maintenance
Cures/penalties for Demolition by Neglect
Penalties
Recordation
D
EFINITIONS – KEY TERMS

SEVERABILITY
OTHER
Preservation Elements in Other Ordinances?
Drafting Historic Preservation Ordinances
OHP Technical Assistance Bulletin #14
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RESOLUTION NO. R-51-24

A RESOLUTION OF THE OF THE CITY COUNCIL OF THE CITY OF

COLTON TO APPROVING GENERAL PLAN AMENDME NT FOR A

COMPERHENSIVE UPDATE TO THE CULTURAL RES OURCES
ELEMENT OF THE GENERAL PLAN (FILE INDEX NO: DAP-001-767).

WHEREAS, local governments are authorized by Government Code section 65350 et seq. to prepare, adopt and amend general plans; and

WHEREAS, an update to the Safety Element of the General Plan has been initiated and prepared by the City of Colton; and

WHEREAS, the proposed Safety Element Update leaves the General Plan internally consistent; and

WHEREAS, the staff report accompanying this res olution is found to be true, adopted as Findings and incorporated in this resolution; and

WHEREAS, the Safety Element Update was reviewed, studied, and found to comply with the California Environmental Quality Act (“CEQA”), as more fully described below; and

WHEREAS, the Planning Commission held study sessions and community meetings on February 13, 2023 and March 12, 2024 with completion of public notice to stakeholders and Native American Tribes at which time all persons wishing to testify in connection with the application were heard and the application was fully examined.

WHEREAS, on May 28, 2024, the Planning Commission of the City of Colton (“Planning Commission”) held a duly noticed public hearing at which time all persons wishing to testify in connection with the application were heard and the application was fully examined and adopted Resolution No. R -08-24, 3-0-2 Vote, recommending City Council approval of the General Plan Amendment for a Comprehensive Update to the Cultural Resources Element.

WHEREAS, on June 18, 2024, the City Council held a duly noticed public hearing at which time all persons wishing to testify in connection with the application were heard and the application was fully examined.

WHEREAS, Pursuant to the California Environmental Quality Act (“CEQA”), the project is categorically exempt under Article 19, Section 15308 (Actions by Regulatory Agencies for Protection of the Environment), Class 8 of the State CEQA Guidelines. Projects characterized as an action by City of Colton for p rotection of the Environment and General Rule Exemption (or Common-Sense Exemption) of the CEQA Guidelines Section 15061(b)(3).

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF COLTON DOES HEREBY RESOLVE AS FOLLOWS:

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Colton City Council Resolution No. R-51-24
DAP-001-767 General Plan Amendment – Cultural Resources Element Update June 18, 2024 – Page 2 of 2

SECTION 1. Based on the entire record before the City Council of the City of Colton, all written and oral evidence presented has been considered and reviewed, and the City Council finds that the Cultural Resources Element Update is consistent with State l aw, will promote the public health, safety and welfare, and will leave the General Plan an integrated and internally consistent statement of policies – attached Exhibit-A.

SECTION 2. The City Council of the City of Colton in accordance with the California Environmental Quality Act (“CEQA”), has found that the project will not have a significant impact on the environment and is categorically exempt under Article 19, Section 15308 (Actio ns by Regulatory Agencies for Protection of the Environment), Class 8 of the State CEQA Guidelines.

Projects characterized as an action by City of Colton for protection of the Environment and General Rule Exemption (or Common-Sense Exemption) of the CEQA Guidelines Section 15061(b)(3).

SECTION 3. Based upon the findings set forth in Sections 1 and 2 of this Resolution, the City Council hereby approves the General Plan Safety Element Update and Addendum to the General Plan Update EIR, as presented to the Planning Commission and City Council.

SECTION 4. Certification/Publication. The City Clerk shall certify the passage of this Resolution and cause the same or a summary thereof to be published within fifteen (15) days after adoption in a newspaper of general circulation published in the City of Colton.

SECTION 5. This Resolution shall become effective thirty (30) days after its adoption in accordance with the provisions of California law.

PASSED, APPROVED, AND ADOPTED this 18th day of June, 2024.

FRANK J. NAVARRO
Mayor

ATTEST:

Stephanie Vargas
Deputy City Clerk

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City of Colton General Plan
Cultural Resources
Element Update

PREPARED FOR:

City of Colton | Planning Division
Development Services Department
659 N. La Cadena Drive | Colton, CA 92324

PREPARED BY:

SWCA Environmental Consultants
Contact: Debi Howell-Ardila, MHP
320 North Halstead Street, Suite 120 | Pasadena, California 91107

May 2024

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Table of Contents
Introduction .................................................................................................................... 1 Project Objective .................................................................................................................. 1 Purpose of the Cultural Resources Element ........................................................................ 2 Authorization and Scope ...................................................................................................... 3 Relationship to Other Elements ........................................................................................... 3 Existing Conditions .......................................................................................................... 5 Historic Preservation Ordinance .......................................................................................... 5 Mills Act Historic Property Contract Program ...................................................................... 6 Citywide Historical Resources Survey .................................................................................. 6 Certified Local Government ................................................................................................. 7 Cultural Resources Element ................................................................................................. 7 Landmarks and Historic Districts .......................................................................................... 7 Historic Setting ............................................................................................................. 19 Archaeological Resources .................................................................................................. 19 Historic Overview ............................................................................................................... 23 Agua Mansa and La Placita................................................................................................. 36 South Colton....................................................................................................................... 38 Challenges, Issues, and Priorities ................................................................................... 46 Goals, Policies, & Action Items ....................................................................................... 53 Bibliography ................................................................................................................. 81 List of Tables
Table CR–1 Challenges and Issues for Historical Resources ................................................... 48 Table CR–2 Challenges and Issues for Archaeological Resources .......................................... 49 Table CR–3 Challenges and Issues for Tribal Cultural Resources ........................................... 50 List of Figures
Figure CR-1. Agua Mansa Pioneer Cemetery, Historic Landmark #7. Source: City of Colton .................................................................................................................... 1 Figure CR-2. Louisa Pino, a member of Colton’s Serrano village, circa 1900. Source:

Arcadia Press ......................................................................................................... 1 Figure CR-3. Colton Area Museum, Historic Landmark #8. Source: City of Colton ..................... 2 Figure CR-4. Anderson Hotel, circa 1950s. Source: City of Colton .............................................. 2 Figure CR-5. Colton citrus workers. Source: South Colton Oral History Project .......................... 3 Figure CR-6. Arcade Building, 8th Street, shown in 1924. Source: City of Colton ........................ 3 Figure CR-7. Fleming Park, Historic Landmark #2. Source: City of Colton ................................... 5 Figure CR-8. Red & White Grocery Store, Historic Landmark #36. Source: City of Colton .................................................................................................................... 5 Figure CR-9. Mills Act Property, Maxwell House (1150 N. La Cadena), Historic Landmark #5. Source: City of Colton ..................................................................... 6 Figure CR-10. Mills Act Property, Fisher-Hodge House (958 N. La Cadena), Historic Landmark #14. Source: City of Colton ................................................................... 6

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Figure CR-11. Colton Fire Station, Historic Landmark #10. Source: City of Colton ...................... 7 Figure CR-12. Colton Museum, Historic Landmark #8. Source: City of Colton ............................ 7 Figure CR-13. Colton, Designated Historic Landmarks and Districts as of May 2023 .................. 9 Figure CR-14. Overview of Colton’s Designated Historic Districts ............................................. 11 Figure CR-15. Terrace Historic District ....................................................................................... 12 Figure CR-16. La Cadena Historic District .................................................................................. 13 Figure CR-17. 9th Street Historic District ................................................................................... 14 Figure CR-18. Citrus Park Historic District ................................................................................. 15 Figure CR-19. San Salvador Historic District .............................................................................. 16 Figure CR-20. Agua Mansa Historic District ............................................................................... 17 Figure CR-21. “Guachama” Rancheria, CA Historical Landmark #95. Source: Michael Kindig, 2005 ......................................................................................................... 24 Figure CR-22. “Guachama” Rancheria, CA Historical Landmark #95. Source: Michael Kindig, 2005 ......................................................................................................... 24 Figure CR-23. The city’s bustling Southern Pacific Railroad Depot. Source: City of Colton .................................................................................................................. 25 Figure CR-24. Early view of Colton, railroad and orchards. Source: City of San Bernardino ........................................................................................................... 25 Figure CR-25. 1973 view of the Earp House (528 W. “H” St.), Historical Landmark No.

33. Source: Maltsberger ...................................................................................... 26 Figure CR-26. The landmark Earp House as of 2022. Source: Google Maps ............................. 26 Figure CR-27. Orange crate label for Colton Orange Growers Association. Source:

Colton Area Museum ........................................................................................... 27 Figure CR-28. Colton citrus packing house, 10th Street between H and I streets.

Source: Maltsberger ............................................................................................ 27 Figure CR-29. Ashley House (736 N. La Cadena Dr.), Historic Landmark #1. Source:

City of Colton ....................................................................................................... 28 Figure CR-30. Van Luven House (611 N. 4th St.), Historic Landmark #38. Source: City of Colton .............................................................................................................. 28 Figure CR-31. Fleming Park, shown in circa 2021, Historic Landmark #2. Source: City of Colton .............................................................................................................. 29 Figure CR-32. Caldera Plunge, shown in circa 1926. Source: South Colton Oral History Project ..................................................................................................... 29 Figure CR-33. Early map of Colton, n.d. Shows the intersecting railway lines, adjacent small lots for residential and commercial settlement, and larger-scale parcels for small farms to the north. Note the cement and marble works in the lower-left hand portion of the map. Source: City of Colton .............................................................................................................. 30 Figure CR-34. Spanish Revival style home at 1167 North 9th Street. Source: City of Colton .................................................................................................................. 31 Figure CR-35. Row of Craftsman bungalow homes. Source: City of Colton .............................. 31 Figure CR-36. Streetcar line through downtown Colton, circa 1910. Source: City of Colton .................................................................................................................. 31 Figure CR-37. “I” Street commercial corridor in 1920s, after rise of the automobile.

Source: Olson, 1989 ............................................................................................. 31

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Figure CR-38. Garfield School (1927). Source: South Colton Oral History Project .................... 32 Figure CR-39. First Baptist Church, 1920s. Source: Olson, 1989 ............................................... 32 Figure CR-40. Woodrow Wilson School (1938), Historic Landmark #45. Source: City of Colton .............................................................................................................. 32 Figure CR-41. Colton Fire Station built in 1936 with WPA assistance ....................................... 32 Figure CR-42. Colton Civic Center. ............................................................................................. 33 Figure CR-43. Howard Johnson Restaurant. .............................................................................. 33 Figure CR-44. Fidel Hernandez American Legion Post (No. 754) and American G.I.

Forum Members, circa 1969. Source: South Colton Oral History Project ........... 34 Figure CR-45. Downtown commercial corridor in the 1940s, with Helman Department Store on left. Source: City of Colton ............................................... 34 Figure CR-46. Colton’s new US Post Office. Source: City of Colton .......................................... 35 Figure CR-47. Better Business Bureau (315 N. La Cadena Dr.). Source: City of Colton ............. 35 Figure CR-48. Trujillo Adobe, Riverside County Historic Landmark ........................................... 36 Figure CR-49. Agua Mansa Pioneer Cemetery, Historic Landmark #7. Source: City of Colton .................................................................................................................. 36 Figure CR-50. San Salvador Church, n.d. Source: Frank Acosta ................................................. 37 Figure CR-51. Early Latino settlers of South Colton, from left to right: Mejia Family, Victoria and Sixto Rivera, Juana and Tomás Luna. Source: South Colton Oral History Project ............................................................................................. 38

Figure CR-52. South Colton citrus workers. Source: Lee Muratalla, South Colton Oral History Project ..................................................................................................... 39 Figure CR-53. Asociacion de Trabajadores Unidos, founded in 1917. Source: South Colton Oral History Project .................................................................................. 39 Figure CR-54. Cervantes Market. Source: South Colton Oral History Project .......................... 39 Figure CR-55. Caldera Plunge, shown in ca. 1926. .................................................................... 39 Figure CR-56. “Bienvenidos a Colton” (Welcome to Colton), La Cadena Dr. and “O” St., 1967. Colton Historical Landmark No. 29. Source: South Colton Oral History Project ............................................................................................. 40

Figure CR-57. South Colton’s Mercuries baseball team, circa 1950. Source: South Colton Oral History Project .................................................................................. 40 Figure CR-58. Fiestas patrias (patriotic celebrations), South Colton, circa 1920 ...................... 41 Figure CR-59. The barrios (neighborhoods) of South Colton..................................................... 41 Figure CR-60. Dates of Construction, Overview and Index Map ............................................... 42 Figure CR-61. Dates of Construction, Inset Map B-1 (Central Colton) ...................................... 43 Figure CR-62. Dates of Construction, Inset Map B-2 (Southeast Colton) .................................. 44 Figure CR-63. Dates of Construction, Inset Map B-3 (Southwest Colton) ................................. 45 List of Appendices
Appendix A: Summary of Community Input, Cultural Resources Element Update Community Workshop, December 7, 2022
Appendix B: Summary of Planning Commission Input, Cultural Resources Element Update, February 2023

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Introduction
Project Objective
For any city or community, physical places, spaces, and artifacts are the caretakers of our shared history. To better understand our present, and to effectively plan for the future, it is key to recognize the past. This past heritage is embodied in “cultural resources” —which include historical resources, archaeological resources, and Tribal Cultural Resources.

Such physical resources reflect, embody, and convey the story of a city’s past. They are the physical cues that trigger and preserve the community’s collective memory. In the City of Colton, this is an all-inclusive memory—all who have gone before are participants.

This Cultural Resources Element provides a road map for the future in the City of Colton’s management and preservation of its varied cultural resources. The Goals, Policies, and Action Items presented in this Cultural Resources Element are designed to enhance the appreciation, identification, and protection of the City’s cultural heritage. The update includes public participation/outreach from the local community, interest groups, Native American Tribal community, and by the City’s Planning Commission. Through the recognition of our City’s cultural heritage, we preserve and enhance the quality of life for all of Colton’s citizens, while also honoring and protecting our heritage, for the enjoyment and edification of future generations.

As the physical remnants of the City’s past, cultural resources can include prehistoric sites, artifacts, buildings, collections of buildings, and designed and natural cultural landscapes.

In terms of the differences between “archaeological” and “historical” sites, archaeological sites can be any mound, midden, burial ground, mine, trail, rock art, or other location documenting human activities occurring prior to European contact. A “historic” site can refer to any building, structure, place, or feature created after European contact . Designed campuses, landscapes, hardscaping, and parks can also be historic sites.

Figure CR -1. Agua Mansa Pioneer Cemetery, Historic
Landmark #7. Source: City of Colton
Figure CR -2. Louisa Pino, a member of Colton’s
Serrano village, circa 1900. Source: Arcadia Press

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To manage and preserve such cultural resources, cities in California have the option of enacting a specialized General Plan chapter focused on cultural resources, called a “Cultural Resources Element.” This element supplements those requirements already included in Colton’s zoning code, as well as best practices and regulations governing the protection of cultural resources codified in state and federal laws.

California Government Code Sections 37361 and 25373 recognize the value of identifying, protecting, and preserving places, buildings, structures, and other objects of historical, aesthetic, and cultural importance, and empower cities to adopt regulations a nd incentives for the protection, enhancement, and perpetuation of these resources.

The California Environmental Quality Act , as codified through the Public Resources Code, further defines the legal basis for the protection and preservation of significant archaeological and historic resources in California. At the federal level, the National Historic Preservation Act (16 United States Code 470f), the Archaeological Resource Protection Act, 36 Code of Federal Regulations Parts 800 and 1500–1508, 1978 establish federal precedence in the oversight, study, and protection of cultural resources.

Purpose of the Cultural Resources
Element
As an integral part of the General Plan, Colton’s Cultural Resources Element establishes goals and priorities for the identification, management, and protection of cultural resources .

The Element also provides a path forward for incorporat ing such practices into long -term land-use, community development, and economic planning processes.

The Cultural Resources Element provides a strategy for identifying and retaining the cultural resources that reflect Colton’s heritage. Taken together, the Goals, Policies, and Action Items included in this Cultural Resources Element provide a comprehensive program for the protection of cultural resources —one that builds on the work of the past to create a sustainable, realistic road map for the future.

Figure CR-3. Colton Area Museum, Historic Landmark
#8. Source: City of Colton
Figure CR-4. Anderson Hotel, circa 1950s . Source: City of Colton

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Figure CR -5. Colton citrus workers . Source: South
Colton Oral History Project
Figure CR-6. Arcade Building, 8th Street, shown in 1924.

Source: City of Colton
Authorization and Scope
As codified in 1974, Section 65303(j) of the California Government Code includes cultural resources as an optional element of the general plan. In this section, cities are given the latitude to prepare cultural resource elements to aid in “the identification, establishment and protection of sites and structures of architectural, historical, archeological or cultural significance.” Although Cultural Resource Elements are not mandatory, if they are included, they occupy an equal level of importance as other elements in the general plan.

Relationship to Other Elements
State law requires that the Cultural Resources Element be consistent with the other General Plan elements. While other elements are independent, they also overlap in some ways .

The Cultural Resources Element , for example, most directly overlaps and relates to the Housing, Land Use, and Open Space and Conservation Elements.

Fiscal concerns and development priorities, along with planning principles , typically drive land use decisions. And land use decisions ultimately play a role in impacting the City’s cultural resources and built environment.

In addition, the City’s recently adopted Housing Element sets priorities for the expansion of housing in the near- to long-term future. A clear nexus exists, of course, between prioritizing housing and preserving cultural resources, including built environment landmarks, historic districts, and cultural landscapes.

Similarly, the policies of the Open Space and Conservation Element can overlap and affect cultural resources. The presence of cultural resources could also be the determining factor in the designation of open spaces, landmarks, or cultural landscapes.

Given the interplay between elements, the proactive identification of cultural resources and an open discussion of City priorities and alternatives related to preservation are key in ensuring that these separate elements complement (rather than conflict) with each other.

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Existing Conditions
The Cultural Resources Element of the General Plan builds on previous initiatives and actions to recognize and protect cultural resources in Colton. Such initiatives have included adopting an ordinance and cultural resources element, completing historic resource surveys, obtaining status as a Certified Local Government (CLG) with the State Office of Historic Preservation, communicating with local Native American tribal group representatives, and designating landmarks and historic districts, among many other steps. This section describes the current framework for the protection, identification, and management of cultural resources.

Historic Preservation Ordinance
In 1987, the City adopted the “Historic and Scenic Preservation Ordinance of the City of Colton” (Ordinance No. 0 -11-87), which established the regulations governing designation and preservation of historic resources and scenic properties. The ordinance described the criteria and process for designating landmarks and districts. A Historic and Scenic Preservation Commission was also established, along with the authority for the commission.

In 1996, the City adopted Ordinance No. 0 -11-96, with refinements to the original Historic Preservation Ordinance. In 1999, Ordinance No. 0 -02-99 provided additional refinements, include a designation program for historic resources and the appointment of the City Manager as the City’s “Historic Preservation Officer.”
The current Historic Preservation Ordinance was modified in 2018 (Ordinance No. 0-01-18).

This iteration of the ordinance further expanded on purpose and intent and disbanded the Historic Preservation Commission, delegating its duties and authority to the Planning Commission. A detailed process for nominating and designating historic resources and districts, as well as amending or rescinding designation, was also included. Steps and requirements for Certificates of Appropriateness and Certificates of Economic Hardship were also included in the updated ordinance, along with a description of the State Historic Building Code and maintenance and upkeep guidance for historic buildings.

Figure CR-7. Fleming Park, Historic Landmark #2 .

Source: City of Colton
Figure CR -8. Red & White Grocery Store, Historic
Landmark #36. Source: City of Colton

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Mills Act Historic Property Contract
Program
To incentivize preservation and private investment in the City’s cultural heritage , Colton offers the Mills Act Historic Property Contract Program to owners of designated landmarks.

As of January 2024, the City has 11 Mills Act Historic Property Contracts in place.

The Mills Act is a highly effective economic incentive program in California for the rehabilitation and preservation of qualified historic buildings. Enacted in 1972, Mills Act legislation gives participating cities and counties the authority to establish contracts with property owners to offset the costs of the rehabilitation, restoration, preservation, and maintenance of their historic properties. Through the Mills Act, property owners often see significant reductions in their property taxes, with those s avings then invested in the long- term preservation of historic buildings.

Under this program, property owners design a 10 -year preservation, rehabilitation, and repair workplan with all work efforts designed to comply with the Secretary of the Interior’s Standards for the Treatment of Historic Properties (Secretary’s Standards). The estimated costs of those plans, along with operating costs, form the basis for a reassessed value, which generally results in a significant tax savings. In this way, the property tax savings directly offset the ongoing stewardship and care of the historic property, thereby assisting property owners and also helping retain those historical resources with great value for the community.

Citywide Historical Resources Survey
In 1988, the City commissioned a citywide survey of those properties 50 years of age and older. Omitted from the survey was the swath of the City south of the Santa Ana River and Agua Mansa Road, as well as the area west of the Southern Pacific Railroad line.

Among a target list of 1,540 properties, over 800 were found eligible for historic landmark designation at the local, state, and in some cases federal levels. Another 86 of those eligible resources were carried forward for recordation on California Department of Parks and Recreation Historic Resources Inventory forms , with photographs, property-specific research, and descriptions. The survey also identified eight eligible historic districts.

Figure CR-9. Mills Act Property, Maxwell House (1150 N.

La Cadena), Historic Landmark #5. Source: City of Colton Figure CR -10. Mills Act Property, Fisher-Hodge
House (958 N. La Cadena), Historic Landmark #14 .

Source: City of Colton

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Certified Local Government
Since 1988, Colton has been a CLG with the State Office of Historic Preservation.

Administered by the National Park Service, the CLG program encourage s the direct participation of local governments in the identification, registration, and preservation of historic properties and promotes the integration of local preservation interests into local planning and decision-making.

To attain CLG status, cities apply to the State Office of Historic Preservation . Requirements include the following: (1) Enforce state and local laws for the designation and protection of historic properties; (2) Establish an historic preservation review commission by local ordinance; (3) Maintain a system for the survey and inventory of historic properties; and (4) Provide for public participation in the local preservation program. Benefits to CLG s include technical assistance from the State Office of Historic Preservation, access to grant opportunities, and credibility for local programs consistent with federal and state standards.

Cultural Resources Element
Adopted in 2000 (Resolution No. R -82), Colton’s current Cultural Resources Preservation Element provides Goals, Policies, and Implementation Measures for the management of archaeological and historical resources. For historical resources, the foundation for the Cultural Resources Element was the 1992 Historic Resources Survey. For archaeological resources, a records search was conducted, with results on file with the City, and maps showing areas of known and potential sensitivity were provided. The previous element did not include a specific goals, policies, and strategies for addressing Tribal Cultural Resources.

Landmarks and Historic Districts
Colton has over 50 designated historic landmarks, including buildings, parks, landscape, and hardscape features. In addition, six historic districts have been designated in Colton— 9th Street, Agua Mansa, Citrus Park, La Cadena, Terrace, and San Salvador. Figure CR-13 shows all designated landmarks in the City. Figure CR -14 through Figure CR-20 show the location and boundaries of Colton’s designated districts.

Figure CR-11. Colton Fire Station , Historic Landmark # 10.

Source: City of Colton
Figure CR-12. Colton Museum, Historic Landmark
#8. Source: City of Colton

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Figure CR-13. City of Colton, Designated Historic Landmarks and Districts as of May 2023

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Figure CR-14. Overview of Colton’s Designated Historic Districts

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Figure CR-15. Terrace Historic District

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Figure CR-16. La Cadena Historic District

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Figure CR-17. 9th Street Historic District

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Figure CR-18. Citrus Park Historic District

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Figure CR-19. San Salvador Historic District

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Figure CR-20. Agua Mansa Historic District

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Historic Setting
Archaeological Resources
Prehistoric and Ethnographic Overview
Southern California has a long history of human occupation. The earliest extant evidence of human occupation dates to the late Pleistocene, circa (“ca.”) 11,000 years B.C. (Glassow et al. 2007: 191). Prehistoric material in southern California has been categorized according to periods or patterns that define technological, economic, social, and ideological elements.

Within these periods, archaeologists have defined cultural patterns or complexes specific to prehistory within southern California, including San Bernardino County and vicinity. The chronological framework developed for southern California is divided into four major periods as described below.

Paleoindian Period (11,000 - 7000 B.C.) – This period is defined by hunting and gathering near coastal and lake shores, with an emphasis on hunting in the earlier period and greater emphasis on gathering plant foods and hunting small animals as the climate turned warmer and drier during the latter years of this period.

Milling Stone Period (7000 - 3000 B.C.) – This period is characterized by an ecological adaptation to collecting, accompanied by a dependence on tools associated with grinding small seeds, including milling stones (metates, slabs) and hand stones (manos, mullers).

People during this period practiced a mixed food -procurement strategy and s ubsistence patterns became more specialized.

Intermediate Period (3000 B.C. - A.D. 500) – During this period, a pronounced trend toward greater adaptation to regional or local resources can be observed, including a wider variety of land mammal remains, more diverse assemblage of hunting tools and wider use of plant foods and plant processing technology across the region.

Late Prehistoric Period (A.D. 500 - 1769) – This period demonstrates continued variety and complexity of culture. More diverse classes of artifacts are typically found, including finely made atlatls ( a tool used by early Native Americans to propel a spear or dart) and small projectile points suggesting utilization of the bow and arrow for hunting . L arger, more permanent villages with greater numbers of inhabitants also indicate an increase in population (Wallace 1955:223).

Prehistoric resources from these periods have been recorded within the City. Areas of high sensitivity for prehistoric resources have also been identified in past studies in the vicinity of the Santa Ana River, Warm Creek, Lytle Creek, La Loma Hills and Re che Canyon. As comprehensive cultural resources studies have not been conducted for all parts of the City, it is likely that significant prehistoric archaeological resources exist in subsurface contexts throughout the City.

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Ethnography
Colton was a well-inhabited area at the time of Spanish colonization and is an ethnographic transition zone between three Native American groups: the Kizh, Serrano, and Cahuilla. All three groups are speakers of Takic languages, which are part of the Uto -Aztecan linguistic stock. The lifeways of all three groups were deeply affected by the California mission system and subsequent immigration and development of the area. Forced removal, disease, and other factors greatly reduced the Indigenous population in the region after contact with Europeans.

Extensive ethnographic research was not conducted for this Cultural Resources Element; however, it is likely that some ethnohistoric sites exist within the City. For example, according to the memoirs of G. Hazen Shinn and as remembered by the Kizh, the Serrano told Shinn that prior to Spanish contact , the Kizh Village of Homhoa existed between present-day Colton Avenue and the Southern Pacific Railroad tracks east of the Santa Ana River on the lands where San Gabriel Mission fathers held mass outside under ramadas ca. 1810–1830 (Johnston 1962:16; Shinn 1941). The Yuhaaviatam clan of Serrano people — known as the Yuhaaviatam of San Manuel Nation today —fled into the San Bernardino Valley to escape deadly conflict with a San Bernardino militia. Led by Sant os Manuel, the Yuhaaviatam clan ventured through the valley along Warm Creek before settling near the confluence of Warm Creek and the Santa Ana River, near the borders of the Cities of San Bernardino and Colton.

Other areas sensitive for precontact resources, such as the Santa Ana River and La Loma Hills, may also have potential for the presence of ethnographic resources, as well as properties and neighborhoods associated with Native Americans living in the City post- contact. Additional study and consultation with descendant communities would identify those areas with the highest potential for resources associated with the Indigenous and ethnographic groups described in this section.

Kizh/Gabrieleño/Tongva
The names “Kizh” (also spelled Kisianos or Kij), “Gabrieleño” (also spelled Gabrielino), and “Tongva” are used to designate Indigenous inhabitants and lineal descendants of the Southern Channel Islands, Los Angeles Basin, San Fernando Valley, San Gabriel Valley, Western San Bernardino County, Western Riverside County, and Western Orange County people (Bean and Smith 1978; Johnston 1962; McCawley 1996; Strong 1929). The farthest ancestral territory of the Kizh/Gabrieleño/Tongva is documented through the oral history of the informants and Tribal elders of the Serrano and the Cahuilla. They clearly state the areas into Redlands, Yucaipa, and Crafton are their ancestral lands (Strong 1929). Once the Spanish colonized the Kizh -Tongva ancestral territory, they began using the term “Gabrieleño” as a reference to the California Native Americans who were associated with Mission San Gabriel, which many times included members of surrounding groups such as the Kitanemuk, Serrano, and Cahuilla.

Some ethnographers have stated that the Gabrieleño people did not have an overall name for their cultural group; however, others indicate they had a clear name for themselves

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(Dakin 1978:22; McCawley 1952:10; Strong 1929: 7- 8, 112). According to one informant, people living near San Gabriel identified themselves as Kichireños, which is a blend of Indigenous self-identification (Kizh) and Spanish suffix (eño, meaning “belonging to”) (Bean and Smith 1978:548; Johnston 1962:15). In the local tongue, Indigenous people would have identified themselves as belonging to a specific community with locational suffixes, much as someone from New York is called a New Yorker (Johnston 1962:10). Today the Indigenous and lineal descendants in this portion of southern California use the terms Kizh Nation – Gabrieleño Band of Mission Indians, Gabrielino/Tongva Indians of California Tribal Council, Gabrielino -Tongva Indian Tribe, Gabrielino /Tongva Nation, and the Gabriel eno (Tongva) San Gabriel Band of Mission Indians to designate their tribal groups.

Prior to Spanish contact, the basis of Kizh/Gabrieleño/Tongva religious life consisted of the Chinigchinich religious belief system. The Chinigchinich was born in the village of Povuungna, and the religion spread out to the surrounding Tribes. The Chinigchinich was known by three distinct names: Saor, Quaguar , and Tobet , with each one possessing a particular significance, diversity and difference in time. The foundation of the Chinigchinich religion taught the laws, institutions and songs of the “toloache c ult” and the annual mourning ceremony. Elaborate mourning ceremonies included a variety of offerings that varied with gender and status, including seeds, stone grinding tools, crystals, otter skins, baskets, wood tools, bone awls, strings of Olivella shell disk beads, ocean pendants and ornaments, projectile points , and knives (Dakin 1978; Johnston 1962:52 –54; McCawley 1996:155–165). Many of these goods were luxury items that signaled wealth and prosperity to surrounding inland Tribes and functioned as social and physical currency.

Stretching from the coastal islands to the interior mountains, the Kizh/Gabrieleño/Tongva inhabited a variety of environmental and biotic zones rich in natural resources that allowed them to support a large territory with numerous villages and inhabitants. They were considered one of the wealthiest T ribal groups in s outhern California at time of Spanish contact (Bean and Smith 1987). The Kizh/Gabrieleño/Tongva used a variety of tools and implements in their everyday practices as complex hunter-gatherers, including the bow and arrow, traps, nets, blinds, throwing sticks and slings, spears, harpoons, and hooks. Food was processed with a variety of tools such as mortars and pestles, manos and metates, strainers, leaching baskets, bowls, knives, bone saws. Stone tools such as hammer stones, anvils, and spear points were made of obsidian, chert, quarts and various other cryptocrystalline, while raw materials like juncas, deergrass and asphaltum were used to create cooking baskets, water bottles, burden baskets, an d many more ingenious tools.

Some materials from Pimungna (Santa Catalina Island) were brought to the mainland and traded extensively throughout the region. The Pimungna steatite was a favorite Kizh-traded good used as cooking bowls and flat comales (griddle-like surfaces).

Serrano
The Serrano occupied an area of the San Bernardino Mountains between approximately 1,500 and 11,000 feet above mean sea level. Their territory extended west into the Cajon Pass, east to Twentynine Palms, north past Victorville, and south to the Yucaipa Valley. Year- round habitation tended to be on the desert floor, the base of the mountains, and in the

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A ROAD MAP FOR THE FUTURE

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foothills; all habitation areas required year-round water sources ( Bean and Smith 1978; Kroeber 1908). Most Serrano lived in small villages near water sources (Bean and Smith 1978:571). Many of the villages had a ceremonial house used as a religious center and the residence of the lineage leaders. A village was usually composed of at least two lineages, referred to as a lineage set. Both lineages served important functions during religious ceremonies and in day-to-day activities. The Serrano were loosely patrilineal and associated themselves with one of two moieties or “clans” —the Wahiyam (coyote) or the Tukum (wildcat) moiety.

Colton City CouncilJune 18, 2024

Colton City Council
June 18, 2024