IS THE HOUSING ACCOUNTABILITY ACT ANTI-PRESERVATION?

It Very Well May Be, If You Listen to City Planning

To set the stage for this post, I need to present some background information.  State regulations are very complex, and professionals may spend their entire career dealing with just one narrow field of law such as air or water quality.  These professionals are very well paid, and some of that pay goes toward keeping current with the latest rule changes and applicable court decisions.  Many rules are vague, or their intent is unclear, requiring the courts to interpret the law by issuing rulings based on the presented facts and evidence.

Since few citizens can invest the time and effort required to maintain a deep and current knowledge of all the various regulations out there, the best one can do is to learn the fundamental concepts of the law and quiz their representatives for more detail.  This is how I got here, initially raising questions about the demolition of the Sears building in East Hollywood and the pending demolition of the Silver Platter Bar in the Westlake area.  The answers I received from those who should know did not fully agree with what I already knew, and that led to more digging and this post.

Environmental Quality and Housing Accountability

When it comes to the preservation of historic resources, the primary law is the California Environmental Quality Act (CEQA). Thanks to CEQA, citizens like you and me have a say in the size and type of projects that may impact our community.  CEQA also has well defined rules as to what goes into the determination of an historic resource.  The local agency tasked with making the determination is the Los Angeles Department of City Planning Cultural Heritage Commission (CHC) and the Office of Historic Resources (OHR).  If the CHC approves a nomination, it then goes to the Los Angeles City Council for approval.

The California Housing Accountability Act (HAA) establishes limitations on a local government’s ability to deny, reduce the density of, or make infeasible a new housing development that is consistent with objective local standards and contributes to meeting the state-wide need for housing.  The State Legislature first enacted the HAA in 1982.  Recent bills amending the HAA include:

• Senate Bill (SB) 167 (2017) and Assembly Bill (AB) 678 (2017) – Strengthens the HAA by increasing the documentation necessary, and the standard of proof required, for a local agency to legally defend its denial of a low-to-moderate-income housing development project.  Requires the courts to impose a fine of $10,000 or more per unit on local agencies that fail to legally defend their rejection of an affordable housing project.

• AB 1515 (2017) – Establishes a reasonable person standard for determining conformance with local land use requirements.

• AB 3194 (2018) – Expands the meaning of zoning consistency to include projects that are consistent with general plan designations, but not zoning designation on a site if that zone is inconsistent with the general plan.

• SB 330 (2019) – Defines previously undefined terms such as objective standards and complete application.  Upon submittal of an application and payment of processing fee, a project applicant “freezes” the applicable standards to their project while they assemble the rest of the material needed for a full application submittal.  SB 330 is also known as the Housing Crisis Act of 2019.

Historic Designation and Housing Project Applications

Buried within the State Government Code Title 7, Division 1, Chapter 4.2, is Section 65913.10 which regulates the determination of historic resources under the housing code.  The section consists of three parts.  Part (a) reads:

“For purposes of any state or local law, ordinance, or regulation that requires the city or county to determine whether the site of a proposed housing development project is a historic site, the city or county shall make that determination at the time the application for the housing development project is deemed complete.”

What this regulation means is that the opportunity to nominate a building as historic must be done either prior to City Planning ruling that the project application is complete or during the subsequent time allowed for appeal.  Public appeal can be difficult when City Planning delays posting the applicable documents on their website.  People concerned about the loss of a potential historic resource expect to be able to file an appeal following demolition notification.  Part (a) of the Code moves the point of response forward from demolition notification to project application.

The Code also specifies that the term “deemed complete” means that the application has met all requirements specified in a relevant list tha is available at the time the application was submitted.  If City Planning does not request information regarding historic status, the application cannot be ruled incomplete because the information was not provided. The law is designed to ensure that the project applicant knows all of the requirements prior to filing.

City Planning has 30 days to deem the application complete unless there are specific errors and omissions.  Correction of the application restarts the 30-day clock.  Once deemed complete, there is a fixed amount of time for the public to appeal.  Unlike CEQA, one may not appeal any issue that is outside the scope of the relevant list.  The HAA is intended to speed the permitting process by shutting down repeated appeals for an expanding list of complaints.

Historic Designation Under the HAA

Often, the City of Los Angeles will deny an appeal because it is submitted too late.  This is the current situation with the Silver Platter Bar in the Westlake area.  The assessment report found that the building was not historic based on its period of significance.  The assessment report was based on physical appearance only.  The report failed to address the cultural significance of this “safe haven” bar to the LGBTQ and Latin communities.  Now, in response to calls for halting the pending demolition, the Council District office claims they can do nothing because the project has been approved and the appeal period has passed.

From what I see, it’s not that the city can do nothing, it’s that city staff are not fully informed about the law.  The city complies with Section 65913.10 (a) but fails to recognize the other parts of the law.  Recall, I said there were three parts to Section 65913.10.  Part (c) reads:

“Nothing in this section supersedes, limits, or otherwise modifies the requirements of, or the standards of review pursuant to, Division 13 (commencing with Section 21000) of the Public Resources Code.“

Section 21000 of the PRC is the California Environmental Quality Act or CEQA.  Under CEQA, the Cultural Heritage Commission has the authority to stay demolition when new information is discovered that may affect the finding of a prior assessment report.  The intent of the law is to ensure that decisions that impact a potential historic resource are based on valid and complete information.  Once torn down, the resource is gone forever.

While city staff often argue that they cannot halt a residential project once the project is approved due to the HAA, Part (c) clearly states that CEQA is the controlling act.  Thus, under CEQA, the CHC has the authority to halt demolition.  Halting demolition to reassess historic designation is not a project denial under the HAA, it is an exercise of CHC authority under CEQA.

Historic Resource Determination

Some cities have implemented an “Historic Resource Determination (HRD) Form” that requires the applicant to assess the historic status of any existing resource on the project site slated for demolition.  The form is a simplified checklist that is submitted with the application package.

The checklist identifies six different categories of historic resource ranging from National, State, or local landmark, a resource identified in a historic resources survey and eligible for listing in the State register, or any building, structure, or permanently located object that has been in existence for at least 50 years (Los Angeles often uses 45 years to be conservative).

The HRD form from the City of Los Altos CA goes even further by clearly informing the project applicant about the determination process.  Any building or structure more than 50 years old is assumed to be historic unless proven otherwise.  An assessment, conducted by a qualified professional, must be submitted with the application.  Within 30 days of receipt, the Planning Director, or designee, shall determine if the resource is historically or culturally significant.

Should the applicant not receive a determination of historic significance at the time the application is deemed complete, the lack of determination shall constitute an implied and conclusive finding that the site is historic.  The HRD form clearly alerts the applicant that the determination of an historic resource under the HAA does not supersede, limit, or otherwise modify the requirements of CEQA.  In addition:

“If new or additional information comes to the City’s attention regarding the existence of historical resources located onsite, the City shall comply with CEQA notwithstanding any initial determination by the City at the time the application for the housing development project was deemed complete.  The City shall not be bound by any inaccurate information provided by the applicant on or in connection with this form (even if confirmed by the City), and the Planning Director’s determinations as described above shall not bind the housing development project’s approval authority, in its capacity as the lead agency, in making any finding or other determination required under CEQA Guidelines Section 15064.5.”

It is unclear to me as to what extent City Planning employs an HRD form to address potential historic resources.  I was not able to find one on their website.  If you want to see the more than 300 application forms that City Planning makes available to the public, you can find them here. Clearly, if City Planning employed such an HRD form, and they followed a similar determination process, then housing development would not pose a threat to potentially historic resources.

But What About the Fines?

A common and typical response I hear from city officials when asked to halt a project so that a proper historic assessment can be performed is “We cannot stop the project now, it’s been approved.  If we deny the project, we’ll be fined $10,000 or more for every housing unit denied.”  A little melodramatic, and not really the full story.

According to the HAA Technical Assisstance Advisory issued by the CA Department of Housing and Community Development, the denial of a compliant housing project is subject to a potential fine.  Potential fine, not an absolute fine.  When a housing project is denied, the project applicant or other affected party may sue and take the city to court.

In court, the judge will determine the validity of the evidence used by the city to deny the project.  If the city can defend their action, the case is dismissed.  If the city does not defend their action, the judge will order the project to be approved.  Up to this point, no fine is incurred.  Only if the city refuses to reverse their decision after 60 days may the court impose the fine.  The fine is not due to the denial of the project, it is due to the city failing to comply with the court order.

The imposition of fines was added to the HAA to prevent small towns and cities from denying residential projects that they felt were out of scale or out of place with the local community.  Even when the project fully complied with the zoning code, the project was denied with no valid reason.

The intent of the HAA is to force all cities in California to bear their fair share when it comes to building new housing.  It is not the intent of the HAA that new residential housing create an undue burden on historic resources.  The HAA does not negate CEQA when it comes to the issue of historic designation.

Concluding Remarks

If I am wrong in my assessment, then I welcome the chance to be corrected.  I want to know the specific sections of the law, or specific court rulings, that render my view incorrect.  But, if I am correct, and I believe that I am, then City Planning should follow the law and ensure that the public continues to have a right to request a stay of demolition when there is a concern over the adequacy of the historic determination.