CEQA and Historic Resources: a case study in Los Angeles
/While in our work we are consistently amazed at the lengths cities will go to in frustrating housing projects, the City of Los Angeles is especially prodigious and creative in their efforts. They are particularly adept at finding creative ways to interpret the law, and often at the forefront of cities in their attempts to add delays and other red tape to the approval of housing. While this case study is about the city of LA, please note that this is not an exclusively-LA problem, any local government in California could choose to copy the LA playbook and push the boundaries in their interpretations of state law.
One area that LA is particularly creative in exploiting is the broad power that the California Environmental Quality Act (CEQA) seemingly gives them to prevent the use of the “Class-32 infill exemption” to develop on sites that might impact historic resources.
The housing project at 1848 S Gramercy Place recently experienced this frustration first-hand. This site, located adjacent to a commercial corridor in the Arlington Heights neighborhood of Los Angeles, is zoned to allow multifamily development. The developers of this project decided back in 2018 to apply for a demolition permit, largely because they wanted to determine if there may have been any unforeseen issues with their right to demolish the existing single family home, a Craftsman-style residence built in 1905.
Since 2015, the city has had in place their Demolition Notification Ordinance, which is a strong tool to assist historic preservationists in determining whether a historic resource should be protected from demolition: before demolition permits can be issued for buildings older than forty-five years, the Demolition Notification Ordinance requires property owners to inform abutting neighbors and their Councilmember's office of any planned demolition activity and to post a public notice on the property. The ordinance creates a thirty-day window for stakeholders to potentially negotiate preservation alternatives if a significant historic property is affected. This could include nominating it for Historic-Cultural Monument (HCM) designation.
In Los Angeles, designation as a Historic-Cultural Monument does not guarantee that the building cannot be demolished, but it does allow the Cultural Heritage Commission to delay demolition in order to create opportunities for preservation solutions to emerge. For covered properties, the ordinance allows the Commission to object formally to the issuance of a demolition permit, delaying the demolition for up to 180 days, plus another possible 180-day extension if approved by the City Council, to allow for time to preserve the monument. Designation also ensures that Office of Historic Resources staff trained in preservation and architecture reviews and approves proposals for work on HCMs before any permits for alteration are issued.
A Monument is also presumed to be a significant historical resource under the California Environmental Quality Act (CEQA), triggering the requirement to perform an environmental review (that could lead to the preparation of an Environmental Impact Report [EIR]) before demolition can occur. However, we’ve found that the opposite is not true: a site that has been determined not to meet the Monument criteria can still be considered a historic resource under CEQA!
The Gramercy project was not listed on any state or local register or survey of historic places, nor was it located in a historic district. Upon applying for a demolition permit, after having received notification via the Demolition Notification Ordinance, neighbors to the project used the opportunity to nominate the site for designation under the city’s Historic-Cultural Monument program, which delayed the issuance of the demolition permit while the city considered the nomination.
The Cultural Heritage Commission held a meeting on July 5, 2018 where they determined that the house located on the site did not conform with the definition of a Monument pursuant to LAMC Section 22.171.7 by a vote of 5-0. In particular, the city staff from the Office of Historic Resources found that “The Stokes’ Angelus Vista Tract Residence does not meet the criteria for designation under the Cultural Heritage Ordinance…The subject property is not associated with any significant historical events and does not exemplify any contributions to history…It is not a distinctive or outstanding example of Craftsman-style architecture…The property is also not a notable example of a master designer, builder, or architect…The subject property was not identified by the citywide historic resources survey, SurveyLA, as eligible for designation under the national, state, or local designation programs.” and ultimately, “The City staff finds that it does not appear to rise to the level of historic significance to be individually eligible for designation as a Los Angeles City Historic-Cultural Monument.”
On October 5, 2018, the city council voted 13-0 upholding the Cultural Heritage Commission’s findings that the Gramercy site was not eligible for Historic- Cultural Monuments status. Once the Historic-Cultural Monument designation process had concluded with a council vote in the record, figuring they had clear rights to proceed with a demolition permit in the future, the developer of the site chose not to proceed with obtaining the demolition permit at that time.
While the developer was working on the demolition and Historic-Cultural Monument issues, they concurrently filed their housing project proposal: a project utilizing the city’s Transit-Oriented Communities (TOC) local density bonus incentive program in August 2018. The developer spent about a year and a half attempting to entitle the TOC housing project, but ultimately decided to withdraw it in February 2020 because the city took issue with its consistency with retail frontage requirements. Since the local TOC program didn’t work for the project, the developer then filed a new application using the state density bonus for entitlement on April 13, 2020, for an eight-story, 33-unit project with three very-low income deed-restricted affordable units, and approximately 466 square feet of commercial space.
After five hearings, the city eventually approved the proposed state density bonus housing project on a vote of 6-0 at a City Planning Commission Meeting on February 23, 2023, including making findings that the project was exempt from CEQA under the Class 32 infill exemption. Then, after the project was approved, on April 19th, 2023, the city accepted a CEQA appeal from the project’s opponents, challenging the city’s determination that the project was exempt from CEQA.
The appeal was filed by the neighbors of the property, who also represented the West Adams Heritage Association. The appellants alleged, in their appeal justification, that the Class-32 CEQA exemption was improperly issued because of several reasons, including “excessive height,” being “incompatible with the historic character of the surrounding neighborhood,” as well as arguing “a project cannot be exempt from CEQA if it varies so completely from the zoning.”
Most significantly, the CEQA appeal noted that the project site, while determined not to qualify as a historic monument by the city, and not part of a historic district, nevertheless should have been included as a contributor to the historic district, and because it is a “potentially historic property” that is enough to disqualify it from the CEQA exemption. The appellants wrote, “Moreover, although the residence is not listed in the National Register and is not designated as a City of Los Angeles HCM, the Cultural Heritage Commission in fact did not consider and did not vote to say that it was not a Contributor to the local historic district identified in the Planning Department’s own original historic survey of the Tract. That survey, completed by a well-regarded Historic Consultant, Richard Starzak of the firm Myra Frank/Jones & Stokes, in fact does indicate that 1848 South Gramercy Place is a Contributor to the identified “18th Street District” (Angelus Vista). The full documentation including photos is in your files. And to provide further clarity, while it is true that this property is not included in SurveyLA as a part of a district, that is because it was NOT SURVEYED with the adjacent residential properties because at the time it was zoned industrial. Long story, but for purposes of CEQA, as other letter writers have commented, another reason the project is not eligible for a Categorical Exemption is because it does involve the demolition of a potentially historical property. (A proper new evaluation of whether or not it is eligible as a Contributor to a local district is required).”
The map below shows that the site is not located in, nor a contributor to a historic district.
On October 15, 2024, the City Council’s Planning and Land Use Committee granted the CEQA appeal and the full City Council finalized the granting of the appeal on November 6, 2024. This meant that the city’s approval of the project was vacated, and the project was sent back to the City Planning Commission for further environmental planning. The PLUM committee and City Council’s findings primarily focused on the project’s potential impacts to historical resources. The findings relied on by the PLUM committee and City Council to grant the appeal contain nearly identical talking points as the appellants’ communications to the city. Both the City’s findings and the appellants arguments make a reference to Snowball West Investments v. City of Los Angeles, an appellate court decision that concerned the applicability of the Housing Accountability Act’s section (j)(4), for non-density bonus housing projects that aren’t consistent with the zoning, which was not relevant to the subject Gramercy Place project, which utilized state density bonus law, and was therefore protected by the Housing Accountability Act under a different section, (j)(3). Regardless, the City would likely argue that the reversal of the approval was not a denial under the Housing Accountability Act anyways, as the City of San Francisco argued when they took a similar action for a project at 469 Stevenson St. by reversing a planning commission approval and requiring additional environmental study.
Was the LA City Council’s reversal of the Planning Commission’s approval legal? After the public uproar in San Francisco concerning the 469 Stevenson project, the state legislature passed AB 1633 (Ting, 2023), which created a path to challenge a local agency’s bad-faith CEQA delay under the Housing Accountability Act. Specifically, for certain categories of infill housing projects, AB 1633 allows a developer to challenge an “abuse of discretion” related to a CEQA determination, including a city’s failure to act, or a city’s action to determine that a project is not exempt from CEQA when there is substantial evidence in the record to support a finding that the project is exempt from CEQA.
In the case of the Gramercy Place project, the City Planning Commission had already found that the project was eligible for the Class 32 infill CEQA “categorical exemption,” and the city’s Cultural Heritage Commission and City Council had already found that project site didn’t qualify for designation as a Historic-Cultural Monument, and the Cultural Heritage Commission had also already found that the project site was not “eligible for designation under the national, state, or local [historic] designation programs, and the CEQA appellants admitted that “it is true that this property is not included in SurveyLA as a part of a [historic] district.” Then the City Council overturned the Planning Commission’s determination that the project qualified for a Class 32 CEQA infill exemption based on the appellant’s argument that the project required “a proper new evaluation of whether or not it is eligible as a Contributor to a local [historic] district.”
While AB 1633 strengthened the Housing Accountability Act by allowing a developer to challenge a city’s abuse of discretion when “there is substantial evidence in the record before the local agency that the housing development project is eligible for an exemption sought by the applicant” it also balances that requirement with another requirement that “there is substantial evidence in the record before the local agency that the application of that categorical exemption is not barred by one of the exceptions set forth in [the CEQA guidelines].”
The CEQA guidelines are extremely protective of historic resources. The list of exceptions to the categorical exemptions says a “categorical exemption shall not be used for a project which may cause a substantial adverse change in the significance of a historical resource.” (emphasis added)
There is no case law directly on point regarding AB 1633 yet, as it has only been in effect since January 1, 2024. The facts in the Gramercy Place matter are compelling because the City of Los Angeles essentially cleared the way for a demolition permit on the site in 2018 after determining that the existing Craftsman style residence built in 1905 did not qualify as a Historic-Cultural Monument. Nonetheless, it is unclear whether a court would find, for the purposes of CEQA, that the city abused its discretion in overturning its prior determination that the project qualified for a Class 32 infill exemption in 2024.
Was there substantial evidence in the record that the project qualified for the Class 32 CEQA infill exemption? Certainly, because the city published just such a determination on April 4, 2023. But was there substantial evidence in the record that the exemption was not barred if the City could make the required findings that the project may cause substantial adverse change in the significance of a historical resource? This isn’t so clear, because the city did, in fact, make the findings that the project was barred from the Class-32 Infill exemption as well.
So what happens when a city makes two sets of findings: one in support of a CEQA exemption, and then another set to overturn that exemption? The Housing Accountability Act is supposed to be “interpreted and implemented in a manner to afford the fullest possible weight to the interest of, and the approval and provision of, housing.” It’s possible that when a city makes both sets of findings, that a court could decide that, in the interest of housing, the findings in favor of housing should prevail. It’s also quite possible that a court could find another reason to allow more CEQA analysis, such as the fact that the findings in support of more analysis came after the findings in support of the exemption.
Recent case law has strengthened the Housing Accountability Act in relation to CEQA, when, in May of 2022 the court in Tiburon Open Space Comm. v. Cnty. of Marin found that, “where a legal obligation limits an agency's discretion, the scope of environmental review likewise is limited”. However, courts are unpredictable, and it’s not certain that Tiburon will be helpful in settling matters when a city’s obligation to approve housing buts up against its obligation to protect the environment. Tiburon was a recent pro-housing ruling that relied upon a 1993 case, Sequoyah Hills Homeowners Assn. v. City of Oakland, which found that the Housing Accountability Act cabined CEQA such that “any decreased density alternative would be legally infeasible,” but other recent court rulings on CEQA have not been so supportive of housing. Indeed, in March of 2022, a court opined in Save the Hill Grp. v. City of Livermore,“[i]f it is illegal or otherwise impossible for the City to acquire and conserve the Project Site, why does the [EIR]'s no-project alternative analysis fail to say so?” Perhaps a similar preservation-minded court would suggest the City of Los Angeles study the possibility of using city funds to acquire the 1905 Craftsman on Gramercy Place in order to preserve the “historic character” of the neighborhood, even if it was ultimately determined to be legally or otherwise infeasible.
This Case Study illustrates the need for stronger infill CEQA exemptions. If a city is allowed to delay an infill housing project by over a year for no reason that will result in a meaningful change to the project, save perhaps the city deciding to purchase the land from the developer to preserve an old structure that it already determined had no individual historical significance, it’s clear that our environmental laws are not doing anything useful. Having a stronger, broader infill exemption, as recommended by the Little Hoover Commission, that isn’t riddled with loopholes like the CEQA categorical exemptions are, would provide much needed certainty for housing development applicants, would help to produce housing more quickly, and more affordably, while also helping to reduce greenhouse gas emissions.
The saga continues. As of this writing, there has been no resolution between the city and the developer to allow the project to move forward to obtain building permits. The developer filed an AB 1633 notice to challenge the city’s belated findings that the project was not CEQA exempt, however the city utilized a 90-day extension to delay responding to the developer, and as of this writing there has been no response to the developer’s challenge notice from the city. The developer also decided to make some modifications to the project design with the intention of addressing some of the concerns of the project’s neighbors with regards to parking.
The city’s planning department informed the developer that, in order for the planning commission to reconsider the approval of the project which the city council had remanded to them in November 2024, the developer would need to 1) file a new environmental assessment form, including paying the applicable fees, 2) submit a new, independent historic survey to re-evaluate the merits of the property’s historic status, and 3) submit new noise and air quality studies for the construction phase of the project.
The developer decided that they would only comply with the request to submit new noise and air quality studies. They pointed out to the city that California Government Code § 65913.10(a) prohibits the city from changing their determination about the site being, or not being, a historic site, after the project’s application has been deemed complete. In this case, the application was not only deemed complete years prior, but also approved by the city planning department staff and the city planning commission.
The city planning commission held a hearing to reconsider the project’s approval on May 22, 2025, but took no action to approve or deny the project because the developer’s challenge (under AB 1633) to the city’s denial of the class-32 CEQA exemption was still under consideration and the developer had made minor changes to the project design shortly before the hearing that were not included in the staff’s analysis for the planning commission hearing.
