Proposed Revisions to Cultural Heritage Ordinance

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By Laura Meyers

Amending a decades-old historic preservation ordinance is not proving to be a smooth ride for city officials. After some vocal opposition by some owners of major historic properties, including the Biltmore Hotel, the Pacific Mutual Building and the Los Angeles Athletic Club, the previously scheduled public hearing on the matter has been deferred to May. The City Planning Commission's consideration of amendments to the Cultural Heritage Ordinance, originally scheduled for March 12, has been continued to the Commission's meeting of May 14. The City Cultural Heritage Commission voted on November 20, 2008 to recommend these amendments, which represent a significant overhaul of the City's historic preservation ordinance.

The Office of Historic Resources (OHR) is proposing important changes, including increasing the size of the Cultural Heritage Commission from five to seven, clarifying criteria for historic designation, and changing the notification process for property owners. The revised ordinance would also create an application process -- similar to that used by property owners in Historic Preservation Overlay Districts -- when owners of Historic Cultural Monuments propose any work that requires a building permit.


One of the more controversial proposals within historic preservation circles is the section that would change demolition review procedures, while at the same time creating a City Council review process that may permit demolition for "hardship" reasons. Some observers are concerned this clause could create politically-inspired demolition approvals and/or demolitions based on economic "highest and best use" principles, which could easily lead to numerous demolitions.

The Cultural Heritage Commission held several public workshops and hearings on these ordinance amendments last year. The amendments have since gone through additional refinements as recommended by a Cultural Heritage Ordinance Working Group, convened by the OHR and the Office of Council President Eric Garcetti, that met five times between June and October 2008.

West Adams Heritage Association had testified at a hearing on February 6, 2008 and presented its "What Is Integrity?" PowerPoint slideshow, resulting in some clarifications to the proposed ordinance. However, WAHA was not asked to be a participant in the Working Group. One of the changes proposed by that group, which included representatives from city departments, was to exempt city-owned properties from the same duty of required maintenance of their historic properties as private property owners have. WAHA has expressed concern about that exemption, given the often-poor maintenance record of city-owned landmarks (and other buildings) in the West Adams area. (Consider, for instance, the current conditions found at the original Washington

Irving Library, HCM No. 307, at 1803 South Arlington, the Engine Company No. 18, HCM No. 349, at 2616 South Hobart, or the former Dr. Mary McLeod Bethune Library, 3665 South Vermont, which is not a landmark but has become a magnet for graffiti and gang activity since the city abandoned it last year.)

The United Neighborhoods Neighborhood Council (UNNC) Governing Board, which represents stakeholders in Historic West Adams, voted on March 5 to oppose any maintenance exemption(s) given to city-owned properties, while at the same time requesting that special consideration be given to private property owners who may be on low fixed incomes. UNNC also voted to oppose the hardship clause as a reason to permit demolitions. The OHR hosted an additional informational workshop on the ordinance for owners of Historic-Cultural Monuments, on March 4. At the workshop, many owners requested additional time to review the ordinance prior to City Planning Commission consideration.

Background: The City of Los Angeles' Cultural Heritage Ordinance, originally approved by the City Council in 1962, created the procedures for the designation and protection of significant Los Angeles buildings and sites as Historic-Cultural Monuments. While the Ordinance has undergone several minor, procedural modifications over the past 45 years, it has never been comprehensively updated to give our city a state-of-the-art historic preservation program.

With the creation of the Office of Historic Resources in 2006, the Cultural Heritage Commission began discussing potential amendments to the Ordinance. The OHR staff has conducted considerable research on other cities' ordinances and has utilized guidance publications from the State Office of Historic Preservation to propose ordinance language that reflects "best practices" nationally. The staff also convened a Cultural Heritage Ordinance Working Group, including representatives of several City departments, that met five times between June and October 2008 and proposed additional refinements to these amendments.

Here is a summary of the proposed ordinance changes:

• Increase number of Cultural Heritage Commissioners from five to seven

When the Commission experiences a vacancy and/or a recusal due to professional employment, it has, at times, lacked a quorum necessary for action. The City of Los Angeles is now a Certified Local Government (CLG) for preservation, which enables the City to obtain State and Federal grants for historic preservation planning. As a CLG, the Cultural Heritage Commission must have a required level of professional expertise in architecture, landscape architecture, architectural history, planning and related fields. A slightly larger commission size would allow access to a broader cross-section of professional expertise, while still ensuring diverse community representation on the Commission.

• Spell out designation criteria for Historic-Cultural Monuments

While the current ordinance does contain criteria for designation, they are ambiguously buried as a lengthy paragraph labeled "Definition of Monument," rather than defined as clear, separate criteria to evaluate eligibility. The new ordinance would generally retain the existing language, but would clearly label these provisions as criteria and differentiate them in separate numbered sections that would parallel California Register and National Register criteria. In addition, at the suggestion of the Cultural Heritage Ordinance Working Group, the proposed Ordinance would add a fifth criterion recognizing places that are significant because they reflect or exemplify the diversity of Los Angeles.

The other major substantive change in this section is to require that designated Monuments retain integrity -- that the proposed Monument still have the ability to convey its significance. The current ordinance is silent on the issue of integrity, often leading to confusion as to how the Commission should evaluate significantly altered structures. The OHR has included language clarifying that the integrity finding should be applied with flexibility, particularly for resources that are significant for historic, social, and cultural associations, rather than their architectural or design qualities. In addition, the ordinance clarifies that a building's poor maintenance or dilapidated condition does not necessarily equate to a loss of integrity.

• Change procedures for temporary stay of demolition to allow a property owner to be notified of the initial Historic-Cultural Monument (HCM) nomination hearing

The current ordinance does not allow for notification of the property owner that an HCM nomination has been filed until after the Commission holds an initial hearing to take the nomination officially under consideration. Many property owners therefore feel "blindsided," not only by the nomination itself, but also by the realization that they were unable to participate in an initial public hearing affecting their own property. The delay in owner notification is currently necessitated because the "stay" preventing demolition or alteration of a resource does not go into effect until the Commission officially acts to take the matter under consideration. On several occasions (most recently for one of the first homes built in Van Nuys), property owners have demolished a building before it could be considered for potential HCM status.

Under the new proposal, the stay of demolition would begin when an application is deemed substantively complete by staff and scheduled for the Commission's hearing, rather than after initial Commission consideration. While this would lengthen the "stay" period by 10-20 days, it would provide for the ability to notify property owners of the initial hearing without triggering a preemptive demolition, and provide more appropriate due process.

• Add provision for Certificate of Appropriateness (COA) review of additions, alterations, and demolitions

The Cultural Heritage Commission is sometimes the last, "hidden" step in the process to obtain a building permit. The Commission reviews projects only at the permit stage, not typically in coordination with other project entitlements. The Commission may only "object" or "not object" to the permit issuance, and its objection period is limited to 180 days, with a possible 180-day extension by the City Council.

By contrast, the City's Historic Preservation Overlay Zone (HPOZ) Ordinance has a well-defined "Certificate of Appropriateness" (COA) process to review additions, alterations, and demolitions. The new ordinance would parallel the COA procedure in the HPOZ Ordinance, placing preservation review earlier in the process to improve clarity for the development community. The City Planning Commission has also previously requested that preservation-related input on projects affecting historic properties occur earlier in the process.

The draft ordinance proposes a streamlined Administrative COA (with no fee associated) allowing staff-level approval for minor rehabilitation work. The current draft ordinance adds language specifying more than a dozen categories of requests to which an Administrative COA would apply. A full COA would be required (with an application fee) for major alterations, additions, and demolitions. Ordinary repair and maintenance work is exempted from COA review altogether.

A COA process is found in most big-city preservation ordinances -- including the ability to deny a demolition request, not just temporary delay demolition. The Commission's COA decisions would be appealable to the City Council; today, the Commission's 180-day demolition objections are not further appealable. The ordinance would create standards for review of demolitions that would directly parallel the standards that have long existed in the HPOZ Ordinance. Today, the City actually provides a higher level of protection for thousands of often-modest "contributing structures" in HPOZs, as opposed to its most cherished historic resources, the more than 900 HCMs.

• Limit Certificate of Appropriateness (COA) review to designated Historic-Cultural Monuments

The original draft revisions to the Cultural Heritage Ordinance proposed that a COA be required for all "designated historic resources," including properties listed in or determined eligible for the National Register of Historic Places or the California Register of Historical Resources. This provision raised significant concerns from the development community, as properties may have been determined eligible for the National or California Registers without going through the same public review process as properties officially designated by the City as Historic-Cultural Monuments.

Following discussions by the Working Group, the current draft limits COA review to designated Historic-Cultural Monuments.

Properties listed in or determined eligible for the National Register and California Register would still be considered "historical resources" under the California Environmental Quality Act (CEQA) and, under a provision in Section of the Municipal Code, would still require environmental review before the issuance of any permit that would adversely affect the resource.

OHR staff is proposing a separate amendment to Section specifically applying this required CEQA review to properties listed in the California Register, which had been omitted from the current version of this code section. In addition, based on input from the Working Group, projects that have received approval for Federal Rehabilitation Tax Credits or under Section 106 of the National Historic Preservation Act will be exempted from the COA process, to avoid duplicative reviews.

• Create a "Certificate of Hardship" process to allow approval of demolition in specified circumstances

The Cultural Heritage Ordinance Working Group discussed concerns that the new COA process might "set the bar" too high and essentially prohibit all demolitions of designated Historic-Cultural Monuments. To address these concerns, the draft ordinance now contains a separate review process for proposed demolitions, allowing applicants to obtain a "Certificate of Hardship" based on specified findings.

The Certificate of Hardship details the specific information that should be submitted to substantiate a finding that denial of the demolition permit will deny a property owner of substantially all reasonable use of, or economic return on, the property. It also allows for approval of demolition based on a finding that an extreme hardship exists due to the peculiar conditions associated with the property and that the purpose and value of an alternative use of the property significantly outweighs the benefit conferred to the community from the preservation of the historical resource. The new language reflects the presumption that demolition of a Historic-Cultural Monument should occur only rarely, but allows policymakers some flexibility in reviewing demolition proposals.

• Allow City Departments to enter into a Memorandum of Agreement (MOA) with the Commission to tailor Certificate of Appropriateness review to the unique needs of City-owned historic resources

Several City departments participating in the Cultural Heritage Ordinance Working Group had indicated that the proposed COA process was not well-suited to certain public properties, public improvements, and infrastructure where no building permits are required. To address these concerns and ensure that the COA process does not adversely affect the City's public safety responsibilities and capital improvement programs, the new draft allows the Commission to enter into a Memorandum of Agreement (MOA) with other City departments upon request. The MOA may exempt from review certain types of activities affecting City-owned properties that would not alter character-defining features. It may also exempt from review those requests that have already completed reviews under CEQA and Section 106 of the National Historic Preservation Act, or clarify the timing of the Commission's review process and create protocols for inter-departmental coordination. To ensure transparency and public input, the MOA would require Commission approval, following a public hearing.

• Update Ordinance sections addressing purpose and duties of the Commission and definitions

Unlike most state-of-the-art preservation ordinances, the Cultural Heritage Ordinance presently lacks clear statements articulating either the City's overarching goals for historic preservation, or the Commission's specific duties. A new "duties" section would define the Commission's role and purview in preservation. The addition of a definitions section will allow the public to clearly understand the specific usage of terms.

• Clarify process for potential repeal of Historic-Cultural Monument status

Occasionally, as with St. Vibiana's Cathedral in 1996, there is an attempt to repeal a site's Monument status. This section would clarify that repeals are only possible if the evidence used to establish the designation was significantly erroneous, or in case of fire or disaster. It would also clarify that removal of Monument status triggers review under the California Environmental Quality Act (CEQA).

• Add language on compliance with CEQA requirements

The California Environmental Quality Act contains some of the most significant protections for historic resources in California. The Ordinance will ensure that projects affecting historic resources are given full review under the provisions of CEQA.

• Add enforcement and penalties provisions, and owner's duty to keep a historic resource in good repair

The Cultural Heritage Ordinance does not presently have clear provisions on enforcement and penalties for violations of the code. This section would reference the existing penalty for illegal demolition -- a five-year building moratorium under the "Scorched Earth" Ordinance. It would also propose a new administrative remedy for violations, including a new monetary penalty of one half the fair market value of the property for an illegal demolition and one-half the cost of restoration for an illegal alteration.

Most effective preservation ordinances include clear provisions to address potential neglect and vandalism of designated historic properties.

This section would reference existing City provisions in Municipal Code Section 91.8119.5 allowing the City to require securing and fencing of historic structures to prevent vandalism. These provisions ensure that historic resources are maintained to preserve their historic status.

• Include preservation incentives in ordinance

The Cultural Heritage Ordinance should not be seen as solely regulatory or punitive: it should include positive incentives that help make good historic preservation projects possible. The Ordinance therefore references the City's successful Mills Act Historical Property Contracts Program, the California Historical Building Code, and other preservation incentives found in other sections of the City's codes.

In response to the opposition by some property owners, OHR has posted a statement on its website,

Here is an excerpt:

"The OHR believes that the new ordinance will significantly improve the review process for owners of Monument properties, in the following ways:

• Well over 90% of requests for alteration of Monument properties will continue to be signed off administratively under the new ordinance, just as they are today -- usually on the same day, "over-the-counter" or electronically.

• The new ordinance will create greater clarity for owners and make clear that certain work, such as ordinary maintenance and repair, is exempt from review altogether.

• The historic preservation standards on which approval is based will not be changing. These standards, used in every local government's preservation law, are meant to allow significant change to historic properties, not to "freeze" historic buildings in time.

• Demolition of Historic-Cultural Monuments may still be approved, and may be approved even if no economic hardship exists. Visit the website to download the complete proposed ordinance.