Protecting California’s Cultural and Historic Resources An Advocate’s Guide to CEQA Brian R.Turner, Esq. Senior Field Officer and Attorney National Trust for Historic Preservation 5 Third St., Suite 707 San Francisco, CA 94103 (p) 415.692.8083 bturner@savingplaces.org
Remember: CEQA was on his watch 2
CEQA: A Process and Tool to Facilitate Informed Decision Making 3
Prior to approving a project public agencies must determine 1. current environmental condition 2. environmental impacts likely to result 3. significance of potential impacts 4. Whether there are alternatives to the proposed project or ways to lessen (mitigate) those impacts of the project so they are not significant? 5. Whether alternatives or mitigation measures render the project infeasible 6. If so, does the public agency nonetheless want to approve a project with significant environmental impacts because its other benefits outweigh those unavoidable environmental impacts? Cacities.org 4
Participate! Public participation is an essential part of the CEQA process ( Guideline § 15201) The “Fair Argument” standard: the threshold for determining whether there is a “significant effect on the environment” and an EIR must be prepared. PRC § 21080(d) TRANSLATION: Low threshhold. Cost or delay not considered RULE : substantial evidence to support a fair argument fact, a reasonable assumption based upon fact, or expert opinion supported by fact not argument, speculation, unsubstantiated opinion or narrative… 5
Be Informed! PRC § 21092.2. Filing and mailing of notice; Submission of notice (a) The notices required pursuant to Sections 21080.4, 21083.9, 21092, 21108, 21152, and 21161 shall be mailed to every person who has filed a written request for notices with either the clerk of the governing body or, if there is no governing body, the director of the agency TRANSLATION : you have the right to receive notices, but you need to ask 6
Common Pitfalls in CEQA Compliance 7
PITFALL #1 But it’s not on any Register! § 21084.1 "Historical resource” 1. Listed in the California Register of HRs 2. Eligible for listing on the California Register of HRs 3. Local Registers 4. Historic Resources Surveys 5. Or none of the above, but is still historic GUIDELINES § 15064.5(a)(3): substantial evidence in light of the whole record 8
Cucamonga “China House” Rancho Cucamonga, CA 9
Main Residence and Studio built by and lived in by Wallace Stegner from 1949-1994 Los Altos Hills, CA 10
Story Poles at Stegner House Summer 2011
Tribal Cultural Resources • Previous assumption: historic, archeological, and paleontological resources; often privileged a non- tribal view of cultural resources • New category of “tribal cultural resources:” • “sites, features, places, cultural landscapes, sacred places, and objects with cultural value to a California Native American Tribe.” – Included in or determined eligible for inclusion in the California Register – Included in a local register, or – Determined by the lead agency, in its discretion and supported by substantial evidence. In applying criteria lead agency shall consider the significance of the resource to a California Native American tribe. 12
PITFALL #2 Doesn’t an exemption apply? • 15 statutory § 21080(b) • 33 Categorical; Guidelines § 15300, et ceq. RULE A categorical exemption shall not be used for a project which may cause a substantial adverse change in the significance of a historical resource Guideline § 15300.2(f) 13
Capital Towers and Garden Apartments Sacramento, CA 14
PITFALL #3 We are going to mitigate our way out Guideline § 15064.5(b)(3): Generally, a project that follows the Secretary of the Interior's Standards… shall be considered as mitigated to a level of less than a significant impact on the historical resource. Guidelines § 15370. Mitigation "Mitigation" includes: (a) Avoiding the impact altogether by not taking a certain action or parts of an action. (b) Minimizing impacts by limiting the degree or magnitude of the action and its implementation… BUT : "As drawing a chalk mark around a dead body is not mitigation, so archival documentation cannot normally reduce destruction of an historic resource to an insignificant level.” Arch Heritage Assn v. Cty of Monterey 15
PITFALL #4 We think preservation is infeasible…seems like it is anyway Uphold Our Heritage v. Town of Woodside (2007) 147 CA4th 587: Record lacked evidence of cost of constructing new home and thus did not support conclusion that alternative of renovating historic mansion was economically infeasible 16
According to the project architect, the Polynesian or “Tiki” theme design concept would not be consistent with this objective because the character-defining features of the Tonga Room would have “no visual, programmatic, or qualitative connection to the classic beaux arts building.” DEIR IV-51. This argument is simply fallacious. There is no credible justification for removing a historically significant interior space under the pretext that it is inconsistent with the historic character of the building of which it has been a part for nearly 50 years. The Draft EIR must provide specific “evidence that the additional costs or lost profitability are sufficiently severe as to render it impractical to proceed with the project.” 18
PITFALL #5 Someone else made me do it “when environmental review is in progress, the interests of the lead agency and a project applicant are fundamentally divergent. While the applicant seeks the agency's approval on the most favorable, least burdensome terms possible, the agency is dutybound to analyze the project's environmental impacts objectively . An agency must require feasible mitigation measures for all significant impacts and consider seriously and without bias whether the project should be rejected if mitigation is infeasible or approved in light of overriding considerations.” Citizens for Ceres v. Superior Court (2013) 217 Cal. App. 4 th 889 19
PITFALL #6 Our narrowly defined project definition made us do it Reliance on a “curtailed, enigmatic or unstable definition of the project” undermines CEEQA compliance because it “draws a red herring across the path of public input.” County of Inyo v. City of LA (1977) 71 Cal.App.3d 185, 199 20
PITFALL #7 Our narrowly defined project objectives made us do it Why it matters: EIR must examine a range of reasonable alternatives that would feasibly obtain most of the project objectives, but avoid or substantially lessen any significant adverse effects of the project. Guidelines 15126.6 21
PITFALL #8 We’re replacing it with something we’ll tell you about later RULE All phases of the project must be considered when evaluating its impact on the environment: planning, acquistion, development and operation…i.e. the “whole of the action” Guideline 15126 22
PITFALL #9 We already told everyone we’re doing it so we have to honor that commitment RULE CEQA Compliance must occur before the public agency approves a project. An “approval” is a decision which “commits the agency to a definite course of action.” Guideline15352(a) 23
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