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. 

Lifting the Cloud: a Ray of Sunshine

In the last post, things looked pretty dire for Burlingame Park and Burlingame in general.  As Ms. Shimko said in the Planning Commission meeting, you can never entirely put the issue to bed -- new information can always be filed.  However, there are ways to manage and control the filing process. 

Best Practices

In the Planning Commission meeting, Anna Shimko and Bill Meeker called out five cities as good examples of best practices for historic preservation processes:  San Francisco, Oakland, San Diego, Redondo Beach, and West Hollywood.    All of these cities have policies and ordinances to provide structure to the process.  All of these cities have nomination forms.  All of these cities specify who may initiate the process for designation.  All of these cities provide for owner notification.   All of these cities provide for public hearings prior to designation.  All of these cities have an appeals process.

Burlingame does none of these things.    And it's paying the price.

In San Francisco, a designation may be initiated by the Board of Supervisors, the Planning Commission or other appropriate boards, or the property owner.  A non-owner needs to seek the assistance of one of the commissions or boards to proceed.  Designation of an historic district must be supported by at least 66 and 2/3 percent of the property owners.  Think you could get that support for Burlingame Park?  Not judging by the impassioned speeches at the November 9 Planning Commission meeting. 

In Oakland, historic resources are nominated by owners, the City, or the public, and are designated only after public hearings by the Landmarks Board, Planning Commission, and City Council.  Again, historic district designation needs support of the neighborhood itself.

In San Diego, a petition signed by a substantial number or a majority of the property owners within the district in support of the nomination is required to process an historic district nomination.

In Redondo Beach, nominations of an historic resource or district can be made only by the property owners.  For a district, even if other owners nominate the district, the district boundary will not include any property without the written consent of the property owner.

In West Hollywood, the Historic Preservation Commission reviews all applications, and all recommendations for designation of potential resources are forwarded to the City Council for final decision.  

These are all examples of low-cost measures that can be instituted today.  They don't require expensive consultants.  They don't require $50,000.   They do protect the city from lawsuits.  They do protect both our historic resources and property rights. And they'll even lift the cloud of uncertainty from Burlingame Park.

What about surveys? 

Wait, don't all of those cities also perform historic surveys?  Of course they do, as many cities in San Mateo County do, and as Burlingame did as part of its Downtown Plan.  But they don't let the tail wag the dog. Burlingame is in danger of just that if the City performs an ad hoc survey of Burlingame Park because one person filed.  The relationship between a city's survey process (note:  a process, not just an ad hoc survey) and its historic preservation plan is a dynamic one.  A survey provides historic context; an ordinance provides structure.  We already have historic context from the historic survey done for the Downtown Plan.  Why are we talking about surveying Burlingame Park for $50,000?  Because one person filed papers.  That's not part of a structured plan; that's simply avoiding litigation. We need to back up our historic preservation approach with some structure and community input.  Community development and historic preservation must be planned together.  If we set ourselves up for an on-going adversarial relationship between development and preservation, then we'll be making lots of lawyers very happy -- and the citizens of Burlingame very unhappy. And if we set the precedent that one person can force the City to spend $50,000, then we've allowed greenmail to run the City budget.

History, not Uncertainty

Burlingame Planning Commissioner Richard Terrones said in the November 9 meeting, "I'm a fan of history,  but I'm not a fan of uncertainty."   An historic survey of Burlingame Park may temporarily lift a cloud of uncertainty from some homeowners (and darken the cloud for others in Burlingame Park).  But until Burlingame adopts the most basic best practices pointed out by Anna Shimko and Bill Meeker, there will be no certainty for Burlingame Park, or Burlingame residents.

Stay Tuned for the Future Post:

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

The Cloud Over Burlingame Park: the $50,000 Question

It's not the rainy season yet, but there's a cloud over Burlingame Park.  That's according to Anna Shimko, the expert who presented at the Burlingame Planning Commission on November 9.

Let's look at how that cloud formed, and the possibilities for getting the sun to shine again on Burlingame Park homeowners.

According to Shimko, the cloud of uncertainty was caused by the papers then Vice-Mayor (now Mayor-elect) Baylock provided to city staff on September 25.  While the papers were targeted at 1540 Newlands Avenue, they included information on the entire neighborhood.  Thus, the papers raised two questions:  is 1540 Newlands a historic resource? And is the Burlingame Park area a historic district?

The first question was answered for 1540 Newlands when the city engaged Page & Turnbull to research and prepare a detailed historical analysis for the property, which included the historic context of the neighborhood as it related to 1540 Newlands (the homeowners reimbursed the city for the $3000 cost of the report).

However, the cloud of uncertainty remains for Burlingame Park, and on November 9 the Planning Commission recommended that the city council consider paying $50,000 to fund a historic survey of the neighborhood.

Here's the $50,000 question:  will a historic survey lift the cloud of uncertainty from individual homeowners in Burlingame Park?

The answer is, again according to Shimko:  no.   It lifts the cloud from the neighborhood in general, not from individual properties.   Confused?   Let's look at a recent example of the results of a historic survey in Burlingame.  Specifically, let's look at what happened after the downtown historic survey was conducted in Burlingame. 

Carey and Co. was hired by the city to do a historic survey for downtown.  The result?  Downtown Burlingame has no historic districts.  So far, so good, right?  There's no cloud over downtown Burlingame; the sun is shining.  However, in the course of reviewing the 500 downtown properties, the survey identifited 23 properties as "potentially historic."  Now those 23 property owners are under a bigger, darker cloud.  They can't take any discretionary actions on their properties without jumping through a lot of hoops first.  And those big tax benefits everyone talks about?  Unfortunately, historic designation of any kind does not impact property taxes unless you have an active Mills Act contract.  Let's look at the hoops property owners have to jump through once they're identified as "potentially historic."   Let's also examine the "big tax benefits" as we explain the hoops.

Hoop #1:  Now that you've been identified, either suspend all of your discretionary actions, or fund the historic analysis of your property, to the tune of several thousand dollars of your own money and a couple of months.  Didn't the downtown historic survey cover that?  Nope.  All it did was raise the question for 23 properties.  They might be historic; they might not. If the expensive analysis says your property is probably historic, proceed to hoop #2.

Hoop #2:  Try to get listed on the state register.  Didn't we cover that in Hoop #1?  No, all that happened is that an expert said you could probably get on the register.  Actually getting on the register  isn't easy, even with your historic analysis report in hand.  Your best bet is -- you guessed it -- hire an expert again who can help you navigate the process as efficiently as possible.  More time and money.  If you don't make it, you're out a lot of time and money, and forget any tax benefits. 

Hoop #3:  Now you're on the state register.  Now do you get big tax benefits?  Not so fast.  Federal tax benefits are available only if you're on the federal register (more time, money, and experts) -- and non-residential.  (Burlingame Park homeowners need not apply.)   What about the Mills Act? First, Burlingame doesn't have the Mills Act.  What if the city did decide to implement it?

According to Diane Kane (a senior planner/historian on the City of San Diego Historical Resources Board who runs seminars on the Mills Act) although the Mills Act is a state law, the program is run by each city or county, which sets its own criteria for who can take advantage of the act and decides how many can take advantage each year.  

To give you an idea of how this works in practice, let's look at a couple of cities that were mentioned as examples of best practices by Anna Shimko.  In San Francisco  over 3.300 parcels are listed in or determined eligible for listing in the California register -- and San Francisco has two (yes, two) Mills contracts.  San Diego is one of the most liberal, with 800 Mills contracts, and it charges substantial fees to the property owner to administer it: $1,185 for the historic designation process, $590 for the Mills Act agreement, $492 for monitoring your agreement, $949 for enforcement of the agreement.

The big tax benefits don't look so available when you peel back the covers on implementation.

And remember, according to Anna Shimko and Burlingame's own downtown plan:  ". . . the CEQA review for any projects on  [properties not identified as potentially historic] will be streamlined unless new information comes to light after the inventory is finalized." In other words, even when the historic survey doesn't identify you as a historic property, anyone can come in later and file papers on your specific property to raise the question later.

Summary:

A historic survey of Burlingame Park only lifts the cloud from the overall neighborhood.  Individual homeowners are still exposed to individual filings on their properties, even after the historic survey.  Tax benefits are technically available, but in practice residential property doesn't qualify for federal tax benefits, and state tax benefits (the Mills Act) are not currently available in Burlingame. 

The answer to the $50,000 question: a historic survey of Burlingame Park is a big waste of taxpayer money, of little use to Burlingame Park homeowners, and of no use to anyone else in Burlingame.  

Is there hope for Burlingame's neighborhoods?  Yes!  There are alternatives; there are solutions that will benefit all of Burlingame.  We'll examine those in the next post.

A Blueprint for Greenmail: CEQA and Historic Codes

When CEQA was established several decades ago, its intent was to make sure that our citizens have clean air, clean water, and were able to protect themselves and the environment from harmful effects of over-development.   CEQA is what is called a "self-enforcing" statute -- in other words, public agencies are responsible for complying with CEQA, and it is enforced by the public through litigation and the threat of litigation.

Unfortunately, many of the provisions of CEQA are complex and subjective, so the specter of litigation can be raised with very little basis in fact.  We are now at the point where anyone involved in improving or building real property in California is potentially exposed to what can only be described as extortion.   When you add the subjectivity and scope of the state codes regarding historic designation to the complexity and subjectivity of CEQA, you have a blueprint for greenmail.

In California, any properties that have structures over 50  years old are deemed potentially historic and thus potentially subject to CEQA if anyone raises the question.   The burden of proof is on the property owner to show otherwise, and showing otherwise generally costs thousands of dollars in fees to qualified consultants.  The bottom line?  Anyone who doesn't like what you're doing with your property can file, or threaten to file, papers raising a question about the property's historic value.  At a minimum they know they can cost you months and thousands of dollars at absolutely no legal or financial exposure to themselves. 

 

It's not Blackmail; it's Greenmail

CEQA is being hijacked. It could be rival developers; it could be Fremont vs. Newark; or it could be your neighbor who doesn't like the person who just made an offer on your house.

The process is politely called "greenmail" -- a term for using the laws of the land for legal extortion. Wrong? Yes. Illegal? Unfortunately, no.

The problem is that when CEQA is hijacked for non-environmental purposes, everyone suffers. It wastes time and money without improving the environment as was originally intended.

Historic Survey Does Not Replace Historic Analysis

An historic survey does not constitute an historic analysis for properties:

"For properties that remain on the inventory of historic resources, further analysis is required to make a final determination regarding a property’s eligibility for State of federal registry. This analysis must be completed by a qualified expert in the field of historic resource preservation. Once such an analysis is completed, this information can be considered by the City as part of the required environmental analysis for development proposals that may be submitted on the property in the future. Typically, property owners are required to fund the preparation of such
an analysis."
....

"For properties on the “Buildings of Interest” list, property owners benefit directly because the inventory documents why their building does not appear to meet the state or federal criteria for historic designation. As a result, the CEQA review for any projects on those properties will be streamlined unless new information comes to light after the inventory is finalized."


See the Draft Inventory of Historic Resources prepared by Carey and Co. (parts of which are incorporated into Burlingame's Downtown Specific Plan).

Public Agencies are required to have CEQA procedures

What are Local CEQA Guidelines?

Public agencies are required to adopt implementing procedures for administering their responsibilities under CEQA. These procedures include provisions on how the agency will process environmental documents and provide for adequate comment, time periods for review, and lists of permits that are ministerial actions and projects that are considered categorically exempt. Agency procedures should be updated within 120 days after the CEQA Guidelines are revised. The most recent amendments to the CEQA Guidelines occurred in November 1998 and included specific consideration of historical resources. An agency’s adopted procedures are a public document (14 CCR Section 15022).

Additionally, local governments will often produce materials for distribution to the public explaining the local CEQA process. The OHP strongly recommends the creation of such documents to further aid the public in understanding how CEQA is implemented within each local government’s jurisdiction. Often a local historic preservation ordinance will also come into play in that process. In such instances, the OHP further recommends that the local ordinance procedures be explained in a straightforward public document.

It is each public agency's duty to determine what is and is not subject to CEQA

Who enforces CEQA? What role does the Resources Agency have in enforcement of CEQA?

CEQA is a self-executing statute. Public agencies are entrusted with compliance with CEQA and its provisions are enforced, as necessary, by the public through litigation and the threat thereof. While the Resources Agency is charged with the adoption of CEQA Guidelines, and may often assist public agencies in the interpretation of CEQA, it is each public agency's duty to determine what is and is not subject to CEQA. As such, the Resources Agency does not review the facts and exercise of discretion by public agencies in individual situations. In sum, the Agency does not enforce CEQA, nor does it review for compliance with CEQA the many state and local agency actions which are subject to CEQA.