The Uncertain Future of Historic Preservation

There’s no doubt that historic preservation is politically popular in San Francisco: residents recently approved Prop J to create the Historic Preservation Commission (HPC), and grant it sweeping powers. But there were already solid protections in place. When people voted on Prop J, they probably didn’t know much about the California Environmental Quality Act (CEQA), which was the existing complex mechanism for dealing with historic resources, and how CEQA and the new Prop J represent alternate universes of regulation. CEQA and Prop J both try and protect historic resources, but they do it in very different ways, ways that were left un-reconciled by Prop J.

CEQA incentivizes preservation of historic resources by offering a “safe harbor” for property owners that limit changes to historic properties. Owners that chose this safe harbor, by satisfying what are known as the Secretary of Interior Standards, are exempt from CEQA, and are theoretically not subject to further costly review. So the City and the preservation community get what they want (more preservation) and the owners get what they want (expedited review). That at least is the policy; in practice it usually is not that straightforward for the property owner. CEQA is in reality a complex, expensive and time consuming process. And it was in place long before Prop J. Unfortunately, owners of many small properties more than 50 years old cannot make changes to their structures without going through what can be an arduous CEQA process.

Now we have Prop J. That measure created a powerful new commission to oversee the implementation of existing Planning Code provisions designed to protect historic resources. Those parts of the Planning Code have been in place for decades, and the Planning Department staff and the Planning Commission had been doing a good job implementing them. Now the HPC has that job, and it is not yet clear how much more difficult it will be to make CEQA and the new HPC work efficiently together. This uncertainty is heightened by the fact that the HPC was granted many new powers, including the power to review CEQA documents for any projects that might have an “impact on historic or cultural resources.”

Why did Prop J happen? This week we look way back and provide a very brief history of the historic preservation movement in an effort to place Prop J in a larger context, and comment on the future of the process in San Francisco.

How Did We Get Here? A Brief History of Historic Preservation

There are generally considered to be three phases to the historic preservation movement. The first phase began in the 19th century when nation-states began preserving landmarks as a means of preserving national identity. The iconic American nineteenth century preservation effort was that of George Washington’s Mount Vernon estate by the Mount Vernon Ladies Association. The Association purchased the home and two hundred-acre estate with contributions solicited from women in every state, thereby preventing a planned development on the site.

The second phase is typically defined as the call-to-arms following the demolition of New York’s Pennsylvania Station in 1963 and the destruction of large swaths of inner cities in accordance with post-World War II urban renewal programs. This phase saw the rise of the most visible and institutionalized aspects of the historic preservation efforts-federal, state and local historic preservation laws. The most important of these new laws was the National Historic Preservation Act of 1966 (NHPA). The use of these laws was accelerated after Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978), in which the U.S. Supreme Court upheld New York City’s landmarks law that sought to prevent Penn Central’s owners from building a skyscraper on top of the existing Beaux Arts Grand Central train station. Penn Central established, for the first time, that historic preservation regulations were not only a legitimate use of the police power, but they were also not subject to compensation as a taking, so long as certain parameters were met.

Since Penn Central, historic preservation has exploded. The National Park Service estimates more than one million individual buildings or sites have been listed in the National Register since its creation in 1966. One million. Clearly, we aren’t just preserving Mount Vernon anymore. And it is this third wave of historic preservation-the one in which we now live-where the real conundrum of historic preservation starts to arise. As Carol M. Rose wrote in the Stanford Law Review, “The phrase ‘historic preservation’ is so elastic that any sort of project can be justified-or any change vilified-in its name. In a sense, every event is ‘history,’ and it is a cliché among professional historians that views of ‘historical significance’ alter considerably with shifting social interests. . . .” At this extreme, a prominent proponent of historic preservation, Dolores Hayden, has encouraged that historic preservation should, “celebrate the history of their citizens’ most typical activities-earning a living, raising a family, carrying on local holidays, and campaigning for economic development or better municipal services.”

But by the time we get to Hayden’s level of analysis-and in San Francisco we are surely there-almost anything that means anything to anybody has standing as a historic resource. Since the definition of what it means to be “historic” has expanded to mean anything that might have a history-including mere evocations of nostalgia or even kitsch-the very notion of “historic” has lost any outer boundary. This is the preservation world in San Francisco today.

Which brings us back to Prop J. Under Prop J, the HPC was granted the ability to review any project that might have an “impact on historic or cultural resources” as that phrase is used in the California Environmental Quality Act. Without getting too deep into CEQA, that broad phrase could mean almost anything is within the HPC’s grasp. Coupled with a the larger cultural rise of history indistinguishable from nostalgia, and the HPC’s broadening itself into the realm of “cultural resources,” the HPC seems to have the power to consider almost anything in its purview, and wield its power over CEQA documents that should otherwise be cut-and-dry affairs.

Preservation and the Little Guy

As San Francisco has expanded the ambit of buildings and structures it will consider to be “historic,” the City increasingly draws smaller and smaller projects into the fray. In most of these cases, the project sponsor is not a “developer,” but simply a homeowner or a small business owner, both of which are typically unprepared to deal with the City’s byzantine historic resources process.

These small projects have no physical environmental impacts recognized by CEQA, and would otherwise be exempt from that process but for potential impacts to a historic component of an existing structure. Many such owners soon find they are down the rabbit hole and into the wonderland of the City’s preservation labyrinth.

The process starts when the owner files for the relatively inexpensive CEQA categorical exemption to confirm that their project has no “substantial adverse change” on the historic resource. City preservation experts get involved. Unfortunately, this process often becomes just another tool for neighbors that have no historic preservation interest, but only intend to oppose the project. Like the Discretionary Review (DR) process, preservation policies now provide a new way for neighbor A to fight against neighbor B about what neighbor A wants to do with his home. But unlike DR, where the opponent only has the option to challenge the project at the Planning Commission (usually just once), if an opponent wants, they can appeal the CEQA determination that the Planning Department makes directly to the Board of Supervisors.

The Perfect Storm

This is why we had deep reservations about Prop J: there were already plenty of protections of historic resources in San Francisco, both in the Planning Code and under CEQA. Now, with the HPC, there is yet another complex and expensive process, redundant of the existing protections, vague in its powers, and affecting big projects and small projects alike. It is not that clear yet how much influence the HPC will have on the CEQA process for historic buildings (a process still largely run by the Planning Department staff), but Prop J may make things even messier than they already are.

Which brings us back to the question of why did Prop J pass? It’s hard to find anyone who isn’t enamored with the San Francisco that exists. And nationally, there is a trend over the last three decades, of consideration of a greater variety of histories, and a greater variety of reasons for being historic. But there are at least two key issues San Francisco must consider.

First, does this desire to preserve require a process as contorted as Prop J put in place, especially for small projects? Probably not. Many other cities have equally effective historic resources regimes without the procedural clutter (and we believe San Francisco was doing just fine before Prop J).

Second, when we think about the future of our City, shouldn’t we leave some room for the present and the future to breathe? How long are we preserving these items for? A hundred years? Two hundred years? As the eminent planner, Kevin Lynch, once wrote of historic preservation, “I prefer to emphasize the creation of a sense of local continuity-the tangible presentation of historical context, one or two generations deep, in all our living space-over the saving of special things.” San Francisco will need to decide, sooner or later, whether its historic preservation procedures are really about preserving the past, or merely a device for the loudest voices to save their special things, often at their neighbors’ expense.

Sources cited:

Carol M. Rose, Preservation and Community: New Directions in the Law of Historic Preservation, 33 Stan. L. Rev. 473, 476 (1981)

Dolores Hayden, Placemaking, Preservation, and Urban History, 41 Journal of Architectural Education 45, 46 (1984).

Kevin Lynch, What Time Is This Place? 235 (1972)