San Mateo takes bad faith historic designations to new lows

In May, the northern California city of San Mateo passed a new historic preservation ordinance that is one of the worst examples of a nationwide trend — historic designations so broad that they prevent much-needed housing from being built.

One problem is that the ordinance is far too broad. The new Historic Preservation ordinance defines a “Historic Resource” as not only one that the city has designated, but also ones “eligible” for or listed on other historic registers, like the state or federal registry. While the new ordinance city outlaws permits for building modifications for these properties, the ordinance does not define “individually eligible historic resource,” identify who makes that determination, or exclude homes that are merely located within or contribute to an eligible historic district. Far from protecting specific historic resources, the ordinance potentially places new constraints on all properties in the city, without being clear on what standard they can expect to be held to.

Another problem is that it shifts the burden to property owners to prove their property is not historically significant. Under San Mateo’s new rules, all property owners need to be prepared to prove their lack of historic significance, by a method not defined, to a person not defined, to receive any permit to change their own property, whether or not the property is actually historic. Demolition of an “eligible historic resource” must be processed as a planning application and supported by a historic resources evaluation and/or structural report. “Demolition” is defined broadly enough to include substantial removal of a structural wall on a street-facing elevation. Under this scheme, ordinary remodels or redevelopment projects could be pulled into discretionary historic review if staff or a consultant determines the property is “eligible.” These wildly subjective standards violate the Housing Accountability Act, the Housing Crisis Act, and the Permit Streamlining Act.

To be clear, housing and historic preservation are not in conflict. Building sufficient housing doesn’t require destroying every significant building, and protecting important history doesn’t require opposing all new housing. But historic ordinances are an inviting tool for NIMBYs because historic preservation laws often carve properties out of housing reforms, locking entire neighborhoods behind expensive regulations, whether or not the properties are actually historic.

Part of the problem stems from lax procedures for preservation decisions. Before legislatures started crafting housing reform laws, historic preservation was more popular and challenges more rare. As housing reforms pass and the housing shortage becomes a more pressing issue, NIMBYs started looking for ways to extend historic protections as far as possible. The various registries and designations range from city, county, state, and federal standards. Getting a designation of some kind is easy, but often carries heavy penalties for the owner, restricting their use of the property and making any repairs more expensive.

California sees this problem rear its head in many forms. Cities are using historical status to skirt SB 79 and other housing reform laws. When the threat of new housing rears its head, there’s always something worth preserving, like a place people bought their first washing machine. The problem is being clearly recognized as "one of the easiest tools to stop housing."

Other cities are facing lawsuits over this kind of abuse of historic preservation. Philadelphia is fighting multiple lawsuits against its Historical Commission. In March, a Pennsylvania Common Pleas court found that the Commission did not provide sufficient evidence when it designated some 1400 properties as historic with under. This was at a hearing with stern opposition from property owners, less than ten minutes of testimony, and a nomination written by a Commission member. The city is appealing that decision while fighting with faith communities. Not far away, neighbors of a black baptist church nominated it against the owner’s will. The church community protested, explaining that since designated properties (and non-historical properties in historic districts) must receive city approval before making repairs from a list of approved, expensive contractors, the maintenance costs would force them to sell the property.

In Seattle, residents have adopted a practice of submitting presumptive historic nominations to preempt development. With no limit on who can make a nomination, NIMBYs can stymie or kill development by doing nothing more than filling out some forms.

The result is that city by city, our society is preserving exclusion — not historic buildings. The good news is that YIMBYs are fighting back. San Mateo’s new ordinance is so vague as to be actionably unlawful. Even so, it’s going to take an expensive, time-consuming lawsuit to even begin to untangle it.