Seeing Red in California

The systemic issues around historic preservation and CEQA are not confined to Burlingame.  A recent article in the San Francisco Chronicle reports on delays of construction projects funded by federal stimulus money within California.  What's the hold-up?  The State Office of Historic Preservation is overwhelmed with a backlog of requests to approve those construction projects. 

While the OHP is not the only agency that must approve construction projects, the tangled requirements of  CEQA and historic preservation have slowed the approval process so much that everything from small remodeling projects to large infrastructure projects is stalled.    The OHP is asking for exemptions from the governor's furlough, new hires, or extended hours so that they can catch up.   Of course, all of that costs money.

California desperately needs the federal stimulus money, but it can't get it without expensive and lengthy state review -- which costs money the state doesn't have.   California lawmakers have written us into a hole that will be very difficult to dig out of.

Can we count on Cathy for historic preservation?

One of Cathy Baylock's campaign slogans was "You Can Count on Cathy!"  She also styles herself as a major advocate for historic preservation in Burlingame.  Let's look at her accomplishments and her own words to determine whether we can "Count on Cathy" for historic preservation in Burlingame.

In her own words:  Baylock and Burlingame

If you go to Cathy Baylock's web site, you'll find a page devoted to the issue of historic preservation, and the majority of it is devoted to explaining the most recent actions she took in her own neighborhood.

Baylock blasts the press  coverage of her actions (not surprising given the lengthy and unfavorable coverage).  Here's what she says on her web site:

The press coverage of the one in my neighborhood was particularly uninformed, so I would like you to bear in mind the following:

• These issues stem from a 30 year old State Law (CEQA).

First, Baylock gets the age of CEQA wrong by about a decade.  The act passed in 1970, not 1980.  Second, it was not possible to invoke CEQA on a private property when the law was passed.  Finally, anyone who invokes CEQA for historic preservation should be aware of the significant changes regarding historic resources made in late 1998.  Many cities in California are working hard to appropriately modify their local laws to address and support the CEQA changes made in the last decade regarding historic resources.  Baylock doesn't mention any of this.  She trivializes the tough issues facing the City of Burlingame.  We can't sweep these issues under the rug by simply saying that CEQA has been around for years.  Burlingame must update its policies to stay in sync with the CEQA of today, not the CEQA of the 1970's.  Baylock is out-of-date and out of touch with the issues.

• The property is a single house and out-buildings on a double lot, built in 1922, and a developer was proposing to demolish it and build two new homes.

There are two single-family homes and a shared garage on the property, as Baylock is aware from living across the street from the property for many years and visiting both homes.  Describing the other home (built in the 1930's) with full kitchen, two bathrooms, formal dining room, and large living room with a cathedral ceiling as an "out-building" is intentionally misleading.

The critical point which Baylock continues to obscure is that she did not talk to the homeowners, the buyer, or any of her neighbors before unilaterally invoking CEQA on her entire neighborhood.  She continues to raise the bogeyman of "developers out for profit" without providing a coherent plan for balancing historic preservation and needed development.

• I consulted the Burlingame City Attorney who indicated that I had a duty to provide him with the information about the history of the house and the neighborhood.  I had this information because it is publicly available and I knew the current homeowner had commissioned a study on the history of his property in 2004.  I did exactly what the City Attorney advised me to do--no more and no less.
  

Baylock had the information because she is Treasurer of the Burlingame Historical Society.  She is aware of many studies done by the Society.  If what she says is accurate, then she has a duty to provide all Burlingame Historical Society information of which she is aware to the City Attorney, not selective information only pertaining to her neighborhood.

• If I had not provided this information to the City, it would certainly have been discovered as part of the CEQA process and would have raised the question (a legal question) of why this information was not disclosed earlier.

There is no legal basis for this statement.  It was disclosed in the real estate literature and the sales contract that the two homes are over 50 years old.   There was no need or legal obligation for a third party to initiate action with the City Attorney.  Again, if what she says is accurate, then she has a duty to disclose all  Burlingame Historical Society information of which she is aware to the City Attorney. 

As I have advocated for the last eight years as a councilmember, the City of Burlingame needs to conduct a simple, commonly understood inventory like 15 other local cities have done.  Then buyers, sellers, developers and neighbors would have clarity and certainty on what is and is not historic according to the law.

Baylock has been desperate to have the city conduct historical inventories for years, despite the lack of support in Burlingame for spending the hundreds of thousands of dollars required to pursue this approach.  From the San Mateo Daily Journal in September 2005:

Baylock, 44, won her seat on the council four years ago after two previous tries in which she ran on a preservationist platform. Four years ago, she modified the platform to “smart growth” and won her seat. . . . She desperately wants the city to establish a registry of historical properties and this election may give her the supporting votes to make it happen. Previously, other members of the City Council said there wasn’t enough money for it. Baylock believes the city can’t afford not to.

Baylock’s latest pet project would be to investigate the possibility of creating historical districts in the city in which homeowners can benefit from generous tax breaks in exchange for an agreement to restore the home. Doing so would enable the city to create some affordable housing options and restore its historical integrity, she said.

Baylock's single-minded devotion to prohibitively expensive inventories or surveys paid for by the City reveals that she is acting in her self-interest, not the city's.  She claims that an inventory would provide ". . . clarity and certainty on what is and is not historic according to the law." 


Yet Baylock was present at the November 9 planning commission meeting where Anna Shimko drew the line between a survey and an analysis of a property to determine designation.  Surveys do not say what is and is not historic; the most they can do is identify properties that might be historic.   An inventory alone provides no tax benefits and no certainty.  Even properties that a survey say might not be historic are still potentially exposed to CEQA if additional information is provided to the City.  This additional information can be as simple as the tax roll for the property, and that is what Baylock did in her own neighborhood.   

An ordinance or clearly written public policies would give power to the entire City Council to address appropriate protections for historic or potentially historic resources.  With an inventory and no ordinance, Baylock can continue to use CEQA to unilaterally stall actions she doesn't like on any property over 50 years old.  Because Baylock is a public official, she is protected by sovereign immunity from ordinary citizens who might fight back to recover damages from her misuse of CEQA. 


Baylock has never pursued historic designation for her circa 1910's bungalow.   As such a strong advocate for historic resources, this is a surprising personal choice.  If she truly believes that historic designation provides lasting protection and generous tax benefits under state law,  why not protect her own property?  If you go to Baylock's web site looking for information on the "generous tax breaks" she is fond of invoking, you'll be disappointed.  There is a prominent link on the front page promising information on the Mills Act.  Clicking on it yields a "Page Not Found" error.  Baylock is no preservationist; she simply wants personal control of change in her neighborhood and Burlingame. 

To sum up:

• Baylock is out of touch with significant changes to CEQA affecting historic resources.
• Baylock knows that tax benefits for historic resources are not readily available to homeowners, yet she has done nothing to make them more accessible to Burlingame property owners.
  
• Baylock is misleading the public about the difference between a historic survey and a historic analysis.
• Baylock has never spent a dime of her own money on pursuing designation for her property despite the fact that it is nearly 100 years old.

Baylock has had years to address historic preservation policies, yet she has failed to get the most basic protections or incentives in place for Burlingame.  Baylock is not representing her constituency; she is only representing her own interests -- and spending our tax dollars to do it.

San Mateo County Historic Resources

San Mateo County has an in-depth section regarding historical and archaelogical resources as part of its General Plan.   Included in the historic preservation approach is a Historic Preservation Ordinance with the authority to protect historic resources.   San Mateo County has also conducted various inventories and maintains lists of historic resources, and it has a Historical Resources Advisory Board which acts as a lead agency for the county.   However, it only has jurisdiction over the unincorporated areas of the County.

The San Mateo County General Plan suggests that the Board organize a unified approach to historic preservation and coordinate with the cities within the County, as well as local  historical societies.

Burlingame should review the overall County approach as part of its historic preservation update.

Fear, Uncertainty, and Doubt: What happened in Burlingame

Even Cathy Baylock's staunchest supporters, those who campaigned for her and voted her in on November 3, admit that Baylock blundered when she filed historic papers on her neighborhood without talking to her neighbors or determining whether there was community support for her actions.

The aftermath of the mistake 

Let's look at the some of the results of Baylock's mistake:

• At least two homeowners in Cathy Baylock's neighborhood are out $3000 each for historical analyses of their properties.
• The entire neighborhood is under a cloud of uncertainty, per Anna Shimko.
  
• Baylock was left battling a publicity nightmare just weeks before the election, including losing the endorsement of the San Mateo County Association of Realtors.
• The Burlingame Historical Society is dealing with their own public image issues because Baylock used information from a report written by the Society. Despite the fact that Baylock used the information on her own initiative, unfortunately people see that she is a Board member and assume the Society condones her actions.
  

None of this sounds like a reasoned or logical approach to historic preservation.   It was a reactive, poorly considered response to a rumour.  There is no evidence that the action has had any positive effect on historic resources or the cultural environment of Burlingame, and it has created a lot of unhappiness in the Burlingame Park neighborhood, as well as creating expense and wasted time for city staff.

What about Burlingame's real need for historic preservation?

The real damage, though, is to the perception of historic preservation in Burlingame.  Historic preservation is a cultural and community good, and it should be something that citizens are incented to support and endorse instead of something they fear and avoid.  As Baylock said in 2008 when downtown property owners objected to being listed on the historic survey of downtown, "I hope we can allow this [historic inventory] as a tool and not a punishment for something."

Despite being on the City Council since 2001 and being mayor previous to this term, Cathy Baylock has not succeeded in creating incentives for owners of historic properties in Burlingame.  After the current controversy, the downtown plan was amended to suggest several incentives; however, most of them are either of questionable value or out of the reach of ordinary property owners.  Baylock's plan appears to be to invoke CEQA as the punishment to force compliance.  Yes, it will work, as threats frequently do, but at the sacrifice of willing participation and cooperation by property owners.  Without community involvement and active support for historic preservation, Burlingame is left with the bluntest of instruments to try to maintain its charms.   Long-term, this approach is disastrous for Burlingame's historic legacy.

Burlingame is still waiting for a truly sound historic preservation policy which will serve the community.   Other cities in California have accomplished a healthy balance between historic preservation, green building, and needed community development.  

Cathy Baylock will be mayor in a few days.  What will she really do for Burlingame's historic preservation?

The Five Stages of CEQA

I was going to write an article about the "Five Stages of CEQA", when  I found that someone else has already written it!

I encourage you to read The Five Stages of CEQA by  John R. McLaurin.  A quote:

With term limits at the local level, the environmental impact review (EIR) process currently outlasts the political lives of mayors, city council members and harbor commissioners. Combined, the last two EIR’s at the Ports of Los Angeles and Long Beach were approximately 6,000 pages in length. Both projects were appealed before their respective City Councils – and both still face years of litigation, a reflection of the "can do" spirit of California.

Be sure to read the comments:

The process in completely one-sided. A project proponent will be forced to spend endless money and time researching, rebutting and rewriting and must always have clear and convincing justification for all of their statements, while the opponents only have to voice an unsupported opinion to send you back to square one.

For a more local story, see this article explaining why Redwood City abandoned years of work and thousands of taxpayer dollars, going back to square one because of one person's dissatisfaction:

Mayor Rosanne Foust said the plan has broad support in the community but "unfortunately it was just one property owner -- and let me repeat, one property owner -- who was not satisfied with it."

How much is CEQA costing California's citizens?  The short answer is that no one knows -- but it's obvious that many, many thousands of dollars are spent on activities that have nothing to do with improving our environment.

From Blue Skies to Red Tape: or How Did We Go from Saving Mother Earth to Analysis Paralysis?

The California Environmental Quality Act (CEQA) is one of the most controversial and influential laws affecting community development and planning, and it has profound impacts on property rights in the state of California.   It is shaping the California economy in subtle ways that are difficult to measure or monitor.  It has the potential for great environmental good and the potential for frighteningly powerful abuse.   Let's take a look at its history and evolution over the past several decades.

CEQA's ancestry

CEQA can trace its ancestry to the National Environmental Policy Act (NEPA), signed into law by Nixon in 1969, the National Historic Preservation Act of 1966, and even all the way back to an 1850's preservation society created to save George Washington's home: the Mount Vernon Ladies' Association.  (This also gave rise to the tongue-in-cheek phrase "George Washington Slept Here" to describe properties striving to give themselves some historic status.)

CEQA, environmentalism, and litigation

CEQA is arguably an outgrowth of a wave of environmental consciousness that swept the United States approximately forty years ago.  At the time development and government-run projects were driven largely by purely financial considerations, and CEQA brought a much-needed focus on environmental issues into the planning process.   Unfortunately the judicial enforcement of CEQA has led to the planning process being overly driven by fear of litigation, and thus process is now trumping substance in environmental issues. The judiciary is driving environmental policy in California, rather than the legislative or administrative branches. 

CEQA: the structural problems

CEQA has changed significantly since it was signed into law in 1970 by Ronald Reagan. The original act was quite brief (about three pages) and was patterned closely after NEPA.  At its inception it applied only to government projects and created no new agencies.  The original act faced little opposition; it was a "feel-good" act stating broad worthy goals (clean air, clean water).  It was assumed it would have little impact on the economy.  No one could argue against ensuring clean air or clean water for the citizenry.  Nevertheless, there were two major problems embedded in the original legislation that would gradually come to light: 1)  it was a law that could only be enforced in court, not through standard enforcement methods, and 2) many of the terms were so vague as to be meaningless without interpretation ("significant effect", "substantial evidence").  Imagine if you had to sue a robber in court to establish that the robbery had a "significant effect" on your financial situation when your TV was stolen from your home!   The vagueness of the terms and the dependence on enforcement through litigation have led to a cumbersome, expensive process of enforcement -- and to a CEQA far different from the one originally signed into law.

The evolution of CEQA

Throughout the 1970's and beyond, CEQA came to be interpreted more and more liberally -- judges ruled that CEQA applied to private activities as well as government projects, and judges set precedents that the courts should examine the facts of the EIR itself and rule on its scientific basis.  Further, in reaction to the Friends of Mammoth vs. Board of Supervisors case, the legislature introduced AB 889 which attempted to clarify but also broadened the scope of CEQA.  AB 889 contained this passage which has proven to be an unanticipated and burdensome requirement on anyone who seeks a discretionary permit for a project in the state of California:

Whenever any person applies to any public agency for a lease, permit, license, certificate, or other entitlement for use, the public agency may require that person to submit data and information which may be necessary to enable the public agency to determine whether the proposed project may have a significant effect on the environment or to prepare an environmental impact report.

This wording, which seems relatively innocuous at first glance, means that the government can now require the property owners to provide essentially infinite amounts of information without regard to costs, delays, or necessity.  Remember that public agencies can be sued at any time by a member of the public for discretion of abuse in regards to CEQA. Since the cost of the provided information is borne by the property owner, and since the potential court costs are borne by the public agency, understandably government agencies have interpreted this passage to mean "provide more and more information so we don't get sued."  In practice this has meant that some development projects stall or are abandoned altogether, since requests for additional information can continue until one or both parties are exhausted.

For a good summary of CEQA's significant court cases and major changes from its beginning to the early 1990's, see this article by Robert O'Reilly.

Recent changes:  historic resources

The most recent changes to the CEQA Guidelines occurred in late 1998, when there were sweeping changes to the code affecting historic resources.  Some experts now recommend that reports prepared before 2000 be considered potentially inadequate because CEQA's definition for the lower age threshold for historic resources changed from 100 to 50 years in late 1998.  Thus many resources that would not have been considered potentially historic a few years ago are now subject to CEQA.

The sum of all these minor changes have had a profound impact on historic preservation in California.  An environmental law that was originally intended to ensure clean air, clean water, and transparency of information to the public has morphed into a state law that requires a public agency to do an exhaustive, legally defensible review of a single-family dwelling built in 1959 if the owners want to do anything requiring a discretionary permit.

Saving Mother Earth to analysis paralysis

Thus we have gone from the noble goal of saving Mother Earth all the way to analysis paralysis -- requiring the citizens to protect the government from lawsuits by producing reams of expensive reports.  Because these costs are hidden within the regulatory framework and are funded by private citizens, there is no way to measure the ultimate impact on the economy.  However, it's obvious that thousands and thousands of dollars are spent on EIRs that are not helpful to planners, provide little transparency to the public, and arguably do not protect the environment very well.

The Downtown Plan: Are Historic Incentives Enough?

If you haven't read the latest update of the Historic Resources part of Burlingame's Downtown Plan, take a look.

On November 2, there was a significant update to the section covering Historic Resources.  It's interesting to note that this section was updated the day before the election.  A couple of other things happened on that same day:

• The San Mateo County Times reported that 1540 Newlands had no historical significance, per Page & Turnbull.
• The Daily Post reported that the San Mateo County Association of Realtors had rescinded their endorsement of Cathy Baylock based on her actions regarding 1540 Newlands and Burlingame Park.

What were the November 2 updates to the Historic Resources section of the Downtown Plan?  The major updates were in the area of incentives for owners of historic properties.  The message is getting through that using CEQA alone to force the historic issue, without broad-based community support, is a bad idea.  That's a good thing.

Now, let's take a closer look at what the proposals might mean for property owners in Burlingame.  The incentives mentioned are:

• Voluntary Local Register
• State Historical Building Code
• Mills Act
  
• Federal Rehabilitation Tax Credits
• Reduced Permit Fees for Historic Renovation
• Reduced Parking Requirements for Adaptive Reuse
• Design Exceptions
• Facade Restoration Grants
  

These are all admirable concepts, but there are major limitations that owners should be aware of before signing up for the proposed local register. 

The Voluntary Local Register will automatically trigger CEQA requirements for properties on the list, and if the proposed incentives aren't implemented before the register is established, that exposure will come at no benefit to property owners.

The State Historical Building Code may or may not be of benefit to property owners.  While it eases some restrictions; it imposes different restrictions.  Individual property owners should read the building codes carefully to decide whether this is an advantage or disadvantage for their specific situation.

The Mills Act, which is probably one of the most attractive incentives for owners who want to maintain and rehabilitate a historic property, is a contract process which Burlingame is currently not offering.   As noted in a previous post, San Francisco only has two active Mills contracts, though it has thousands of historic properties.  San Diego has hundreds of Mills contracts, but it also charges thousands of dollars in fees to initiate and administer the contracts.  It remains to be seen whether the Mills Act will be of benefit to Burlingame property owners, since so much hinges on the way it is set up by the local agency.


Federal Rehabilitation Tax Credits:  Only ten projects in the entire state of California were certified to receive these tax credits in fiscal year 2008.  These are not easy to get.  To qualify for these tax credits,  at a minimum properties must be income-producing and must conform to the Secretary of the Interior's Standards for Rehabilitation.  The Office of Historic Preservation reviews and audits proposed projects before approving them for preservation tax credits.  The review may include site visits, recommendations for alternative designs, construction solutions, or preservation techniques to ensure compliance.  The National Park Service also reviews such projects.  For the vast majority of properties, this is not an achievable incentive.


Local Incentives:  As for the rest of the proposed incentives (reduced permit fees for historic renovation, reduced parking requirements for adaptive reuse, design exceptions, and facade restoration grants),  they're a laudable concept -- and the devil is in the details.  You can bet that a city that is already strapped for cash will be reluctant to implement anything that may reduce the city coffers.  The incentives are far from guaranteed if implemented as stated. They will be decided on a case-by-case basis, and some carry the provision that owners must conform to the Secretary of the Interior's Standards for Rehabilitation.  Take a look at these guidelines for interior spaces or windows to gain an idea of the types of restrictions and reviews you can expect.  Again, property owners considering volunteering for designation should carefully weigh any benefits of local incentives against their exposure to CEQA or federal regulations.


Finally, while incentives for historic preservation are a great idea and should be encouraged, Burlingame still has none of the best practices that other cities have implemented as part of their historic preservation process.