CEQA Provisions
CEQA does not apply to ministerial actions which may impact a historical
resource. For example, a project which complies with the Uniform Building
Code and for which no discretionary permit is required does not fall under
CEQA, even if the project may alter a building which is considered a "qualified
historic structure" under the State Historical Building Code (Prentiss
v. City of South Pasadena (1993) 15 Cal.App.4th 85). Common ministerial
actions include roof replacement, interior remodeling, or other activities
which require only a non-discretionary building permit. A ministerial action
applies fixed standards or objective measurements and involves "little
or no personal judgment by a public official as to the wisdom or manner
of carrying out the project" (Guidelines Section 15369).
CEQA does apply to discretionary projects and equates a substantial adverse
change in the significance of a historical resource with a significant effect
on the environment (Section 21084.1). Further, the Act explicitly prohibits
the use of a categorical exemption within the CEQA Guidelines for
projects which may cause such a change (Section 21084). "Substantial
adverse change" is defined as demolition, destruction, relocation,
or alteration activities which would impair historical significance (Section
5020.1).
This effectively requires preparation of a mitigated Negative Declaration
or an EIR whenever a project may adversely impact historic resources. Current
CEQA law provides that an EIR must be prepared whenever it can be fairly
argued, on the basis of substantial evidence in the administrative record,
that a project may have a significant effect on a historical resource (Guidelines
Section 15064). A mitigated Negative Declaration may be used where all potentially
significant effects can be mitigated to a level of insignificance (Section
21080). For example, a mitigated Negative Declaration may be adopted for
a project which meets the Secretary of Interior's Standards for Rehabilitation
and local historic preservation regulations, and so will not adversely affect
the resource.
Key Questions
This presents the Lead Agency with two key questions which it must address
in sequence. First, does a significant historical resource exist? Absent
a historical resource, the agency may proceed as usual and, depending upon
the circumstances, may be able to apply a CEQA exemption to the project.
Second, where a significant historical resource does exist, will the proposed
project result in a substantial adverse change such that the qualities that
make the resource significant are impaired or lost? This question should
be answered through preparation of an initial study for the project.
Is a Historical Resource Present?
Section 21084.1 is by turns both specific and vague in distinguishing the
range of resources which may be considered historic. First, any resource
listed in, or eligible for listing in, the California Register of Historical
Resources is presumed to be historically or culturally significant. This
includes listed archaeological resources (for example, California Landmark
Number 838, The Indian Village of Tsurai). The Lead Agency's first step
should be to consult the applicable Historical Resources File System Information
Center to ascertain whether the resource is listed in the California Register.
A side note: CEQA establishes two separate mechanisms for evaluating potential
adverse effects on archaeological resources. Section 21084.1 applies to
those resources that are listed in or eligible to be listed in the California
Register. Section 21083.2 applies to other "unique" archaeological
resources as well. For more information on the application of CEQA to archaeological
resources see CEQA
and Archaeological Resources, published by OPR.
Second, resources which are listed in a local historic register or deemed
significant in a historical resource survey as provided under Section 5024.1(g)
are to be presumed historically or culturally significant unless "the
preponderance of evidence" demonstrates they are not. The next step
is to consult the pertinent existing local register and survey. Because
a local register or survey may not employ the same criteria as the California
Register, listing or identification in a local survey does not necessarily
establish if the property is eligible for listing on the Register. The Lead
Agency will need to evaluate the resource in light of the Register's listing
criteria (these will be included in guidelines expected to be released by
SHPO in June 1994). The Lead Agency may determine that the preponderance
of evidence demonstrates that the property in question is not historically
or culturally significant despite being listed on a local register or identified
in a local historic survey. When making this determination, OPR strongly
recommends that the agency cite for the record the specific, concrete evidence
which supports that determination.
Third, a resource that is not listed in, or determined to be eligible for
listing in, the California Register of Historic Resources, not included
in a local register of historic resources, or not deemed significant in
a historical resource survey may nonetheless be historically significant,
pursuant to Section 21084.1. This provision is intended to give the Lead
Agency discretion to determine that a resource of historic significance
exists where none had been identified before and to apply the requirements
of Section 21084.1 to properties that have not previously been formally
recognized as historic. As the last step, the local agency should employ
recognized criteria to determine whether a previously unrecognized significant
historical resource exists.
As always under CEQA, the lead agency must determine whether there is "substantial
evidence" in the administrative record to support a finding of significant
effect. Substantial evidence is defined in Public Resources Code Section
21080(e) as including "facts, reasonable assumptions predicated upon
facts, and expert opinion supported by facts." Unsubstantiated claims
of historical significance do not require preparation of an EIR (Citizen's
Committee to Save Our Village v. City of Claremont (1995) 37 Cal.App.4th
1157 p; no substantial evidence existed that a landscape garden planned
in 1905 was ever installed or maintained).
Will There be a Substantial Adverse Change?
When a project would potentially affect a historical resource, the Lead
Agency should prepare an initial study. The initial study, and the information
upon which it is based, will provide a basis for determining whether the
project may result in substantial adverse changes to the resource and, at
the same time, a significant adverse environmental effect.
Section 5020.1 establishes the threshold of "substantial adverse change"
as demolition, destruction, relocation, or alteration activities that would
impair the significance of the historic resource. One example might be the
removal of a historic structure from a historic district, thereby affecting
the cohesiveness of the district. Remodeling a historic structure in such
a way that its distinctive nature is altered would be another. The Secretary
of Interior's Standards for Rehabilitation provide a standard guide to recommended
(and not recommended) treatments to historic properties. The Standards may
be obtained from SHPO.
Section 21084.1 is intended to provide, in the form of CEQA mitigation measures
or project alternatives, new protections for historical resources which
may be adversely changed by a project. Presumably, the Lead Agency may conclude
that a project will have no significant environmental effect when there
is no substantial evidence of an adverse change. Buildings and other historic
resources protected from adverse changes by local regulations such as a
historic district designation or historic preservation ordinance, may logically
be expected not to suffer such changes as long as the project complies with
those regulations. Where such protective regulations exist, or where mitigating
conditions of approval are imposed, the initial study for the development
project may cite them as evidence that no impact will occur, or that any
impacts will be mitigated to a level of insignificance. Either a Negative
Declaration or mitigated Negative Declaration could be adopted under those
circumstances.
In Citizen's for Responsible Development in West Hollywood v. City of
West Hollywood (1995) 39 Cal.App.4th 925, a California appellate court
upheld a city's mitigated negative declaration on essentially the same grounds
as discussed above. The project consisted of a 40-unit low-income housing
project which would rehabilitate and restore two craftsman-style buildings
on the front of the property and demolish another four buildings in the
rear. West Hollywood had established a "Craftsman District" which
encompassed the front buildings for purposes of historic preservation and
established a Cultural Heritage Advisory Board (CHAB) to evaluate proposed
activities within the district. When creating the District, the city had
considered including the rear buildings within its boundaries, but concluded
that they were not historically significant. The housing project was reviewed
and approved by the CHAB as being benign relative to the architectural features
and historic value of the front buildings and in conformance with the Secretary
of Interior's rehabilitation standards.
The court found that there was no substantial evidence to support Citizen's
claim that a historical resource was being adversely impacted by the project.
Those structures deemed to be of historical importance were being rehabilitated
and restored in accordance with adopted city, state, and federal regulations.
The structures proposed for demolition were neither on a historic register,
nor eligible for listing in the California Register, and their potential
historical significance had been dismissed after study by the city during
creation of the Craftsman District. Under the circumstances, the city was
justified in adopting a mitigated Negative Declaration.
Where there is no protective ordinance or other regulation in place or where
protective actions such as mitigation measures are insufficient to avoid
a "substantial adverse change" in the resource, the Lead Agency
should conclude that an adverse change will occur. In that case, an EIR
must be prepared. As mentioned before, for purposes of CEQA a substantial
adverse change in the historical resource is the equivalent of a significant
adverse environmental effect.
Historical Resources and Natural Disasters
Most projects undertaken to demolish or replace property or facilities damaged
as a result of a disaster for which a state of emergency has been declared
are statutorily exempt from CEQA (subdivision (b), Section 21080). Notwithstanding
that exemption, actions in the aftermath of a disaster which might adversely
affect historical resources are subject to State laws governing consideration
of historical resources.
Section 5028 provides that no structure listed in the National Register
of Historic Places, the California Register, or a local register that has
been damaged as a result of a natural disaster is to be demolished, destroyed,
or significantly altered (except for alterations to preserve or enhance
historic value) unless: (1) the structure represents "an imminent threat
to the public of bodily harm or of damage to adjacent property," or
(2) the action is approved by the SHPO. That section further establishes
the procedure for review of proposed actions by the SHPO.
In the wake of an earthquake, flood, fire, or other natural disaster the
local agency may only demolish or destroy those structures which are an
"imminent threat." In all other cases, the local agency must notify
and consult with SHPO immediately if there are damaged historical resources
which may require demolition, destruction, or significant alterations.
END
Back to first page
Appendix 1: Excerpts from the Public
Resources Code
Appendix 2: Historical Resources Information
Centers
For more information, contact:
State of California
Governor's Office of Planning and Research
1400 Tenth Street
Sacramento, CA 95814
916-322-2318