Friday, March 06, 2009

The city fails to protect our historic resources

Mary Miles (SB #230395)
Attorney at Law, and
Coalition for Adequate Review

President Ron Miguel and Members of the
San Francisco Planning Commission
1650 Mission St., Suite 400
San Francisco, CA 94103

DATE: February 19, 2009


Item 17, San Francisco Planning Commission Agenda of February 19, 2009: Market and Octavia Area Plan Historic Resources Survey

This is Public Comment on the proposed adoption of the Market and Octavia Area Plan Historic Resources Survey (“the Survey”). Adoption of this item as proposed may place sites of great historic merit and significance in danger of destruction. A more complete Survey is essential.

Identifying historic properties and areas is critical to any preservation effort. Surveys are a “key element in making city preservation planning and development goals complementary.” (Anne Derry et al., U.S. Department of the Interior, National Park Service: Guidelines for Local Surveys: A Basis for Preservation Planning, Ch.IV, p.1) Data from historic resource surveys is a "building block" for local and statewide preservation. (San Francisco Planning Department Preservation Bulletin No. 11) If the Survey is incomplete or its objectivity is altered by the Project’s development incentives, it fails to accomplish these purposes.

The Survey’s integrity is compromised since it has been tailored by the Planning Department to accommodate development proposals already in the pipeline in the Market and Octavia Area Plan (“the Project”), which will demolish structures and recognized Historic Districts of great historic and architectural merit.

The Survey omits a number of sites and fails to follow up on its own recommendations for hundreds of sites, including several that are proposed for demolition and degradation by the Project. The Survey thus fails to achieve its purpose of preserving historic resources in the Project area and actually facilitates their destruction. Some examples are included below.

The Survey also cites to other partial surveys that are inadequate because they did not cover the Project area to begin with and are more than five years old.

The Survey admits that it has failed to follow up with California Department of Parks and Recreation (“DPR”) Forms 523B (analysis) on at least 732 of the 1,563 buildings for which it claims to have compiled Forms 523A, even though the Market-Octavia Project proposes rezoning more than 4,000 parcels. Thus, the Survey proposes a piecemealed approach to protection that is contrary to CEQA’s requirements of cumulative analysis of the whole Project.

In any event, the Commission should insist on a Survey that provides a complete listing of historic resources in the Project area, and should include a listing by Parcel number and Street address of every building that has been included in the Survey and every Parcel that has not been included and should keep all protections for the entire area in place until the Survey is complete.


The Market-Octavia Project rezones more than 4,000 parcels in the city’s center, giving incentives for high-rise, high-density development by eliminating or drastically changing former regulations on density, height, open space, setbacks, backyards and parking. The Project is of large magnitude and public importance, changing the appearance and character of the center of San Francisco and many neighborhoods within it.

The City’s Ordinance 72-08 contains the Planning Code amendments rezoning the Project area. That 270-page ordinance directs the Planning Department to present “any eligible districts as recorded on DPR 523D forms, and 523A and 523B forms to the Landmarks Preservation Advisory Board (LPAB)." (Executive Summary, p. 2) The LPAB Board no longer exists as a result of the November, 2008 election, wherein voters approved Proposition J. Nevertheless, on December 17, 2008, the Planning Department presented the Survey to the obsolete LPAB, which approved the Survey even though it had no further authority to complete the requirements of Ordinance 72-08 to: 1) initiate landmarking under Article 10 of the Planning Code; and/or 2) nominate all California- or National Register-eligible districts with the California Office of Historic Preservation (OHP).

Even if the LPAB and Article 10 of the Planning Code remained in effect (they do not), the Survey’s acknowledged omissions would fail to comply with the requirements described in the Executive Summary to present “any eligible” landmarks and districts to the entity that will submit them to the OHP. The Survey has not compiled all of the districts and landmarks in the Project area, and its omissions make compliance with the Ordinance impossible. The Survey cannot comply with the Ordinance until it is complete because the Ordinance requires it to submit any historic resources, not just some, particularly in view of the large number in the Project area and the importance of the omitted resources.

Ordinance 72-08 states that if this Commission approves the Survey, the interim building permit review procedures set up to protect historic resources in the Project area will expire. “The procedures, as a precautionary measure securing against the loss of potential historic resources, shall ensure extra scrutiny” in the interim period between adoption of the Ordinance and adoption of the Survey. (Ordinance 72-08, pp.267-271) The Ordinance explicitly defines the Survey as “the area-wide survey of buildings to assess whether they can be considered historic resources, individually or as districts.” (Id., p.267) The Survey falls far short of that definition. If the Commission approves the incomplete Survey, there is no provision for continued scrutiny in the Ordinance. Nor does the Ordinance provide a plan for further survey of the Project area.

Contrary to LPAB Resolution 629 (Executive Summary, Attachment H), the Survey does not conform with the Secretary of the Interior’s Standards and National Register of Historic Places Criteria, since it omits many important landmarks and at least one National Historic District in the Project area.

The proposed Conditions of Approval (“Conditions”) before the Commission do not specify whether conditional protections pending completion of the Survey will apply to “proposed new construction” that the Planning Department has already approved, such as the examples cited below. Nor do the proposed Conditions list the parcels that will require additional work and interim protections by number and address.


The Project is being litigated. (See Coalition for Adequate Review et al. v. City and County of San Francisco, SF Super. Ct. Case No. 508038) CEQA requires that environmental review must take place before legislative action on a Project. The Project is certain to have significant direct, indirect, and cumulative impacts on historic resources, requiring a mandatory finding of significance under CEQA. (Pub. Res. Code §21084.4; Guidelines §15064.5) The city cannot use the Survey as a post hoc rationalization for its failure to conduct proper environmental review of the Project prior to its adoption.

CEQA’s mandatory protections apply to historical resources that are “listed in, or determined to be eligible for listing in, the California Register of Historical Resources.” (Guidelines §15064.5(a)(1).) “Historical resources included in a local register of historical resources, as defined in subdivision (k) of Section 5020.1, or deemed significant pursuant to criteria set forth in subdivision (g) of Section 5024.1, are presumed to be historically or culturally significant for purposes of this section...” (Pub. Res. Code §21084.1, emphasis added) If the survey is incomplete, the omitted resources are not included in these provisions.

Further, the “Executive Summary at p. 2 is incorrect in stating that the Survey itself is exempt from environmental review as an activity “strictly for information gathering purposes, or as part of a study leading to an action which a public agency has not yet approved, adopted or funded.” In fact, the Project has been approved, adopted and funded by Board of Supervisors (Ordinances 246-07 (10/23/07), 71-08 (4/15/08), and 72-08 (4/22/08)). The Environmental Impact Report (“EIR”) on the Project was approved on June 19, 2007 by Board of Supervisors Motion 07-75.

Nor is the purpose of the Survey “strictly for information gathering.” Surveys are used to establish historic resource status and existing conditions for purposes of the California Environmental Quality Act (“CEQA”). [1] (Pub. Res. Code §§21084.1; 5020.1; 5024.1(g); 14 Cal. Code Regs. (“Guidelines”) §15064.5(a)(2).)


1. The Survey Is Untimely

The City failed to conduct the Survey before it approved the Project and its EIR. Following the Commission’s recommendation, the Market-Octavia Project EIR was approved by the Board of Supervisors on June 19, 2007 with no historic resources survey, no coherent statement or analysis of historic resources in the Project area, and no identification and mitigation of the Project’s impacts on historic resources in violation of CEQA, which requires that the analysis must be completed before EIR approval and before Project approval.

2. The Survey Is Unfinished, Incomplete, and Incoherent

The Survey states:

“The minimum documentation required for a resource to be filed with the OHP [State of California Office of Historic Preservation] is a completed DPR 523A form (primary Record), which comprises a non-evaluative record of the physical aspects of the resource and a representative photograph. For built resources, further documentation entails the completion of a DPR 523B form (Building, Structure, Object Record), which comprises a property history and a site map showing the resource’s location, or a DPR 523D form (District Record), which comprises documentation of a specific geographic area with a shared history or resources.” (Market & Octavia Area Plan Historic Resource Survey, Survey Report Final (“the Survey Report”), December 16, 2008, p. 8)

Yet the Survey Report admits that even within the limited area it covers, a total of only 1,553 DPR 523A forms were compiled for 2,003 age-eligible parcels, and that “approximately” 482 parcels were not surveyed at all. (Survey Report, p.8) From this incomplete assemblage, “155 resources were selected for intensive level documentation through [DPR 523B] forms.” (Id., p. 10)

The Survey’s results on the Hayes Valley area are a particularly egregious example of its defects. The Survey says that the proposed Hayes Valley Residential Historic District is based on a 1997 survey, which resulted in a “memo” prepared by William Kostura “based on a survey he performed in association with development of the Hayes Valley Housing Project.” (Executive Summary, Attachment 4, p. 1 (hereinafter the Kostura memo is referred to as “the Kostura Survey” while the Market-Octavia Survey is referred to as “the Survey.”).) However, the Kostura survey was only a “windshield survey” [2] that viewed only 800 buildings, with only 90 that had a “known” history. (Executive Summary, Attachment 4, p. 17) The Survey admits that it is incomplete and includes “only those areas north of Waller Street and east of Webster or Buchanan streets...evaluated for potential additions and expansions. Further survey and documentation is recommended to fully update the Hayes Valley Residential Historic District.” (Id.)

The Kostura Survey found that 372 buildings were contributors to the District. (Executive Summary, Attachment , p. 7) The Survey here, characterized as an “update” to the Kostura Survey, includes only “158 additional contributing properties located both within the original district area and in expanded areas to the northeast and east of the original district.” (Executive Summary, Attachment 4, p. 2) The present Survey lists only those 158 properties as contributors but does not list the 372 properties in the Kostura Survey as contributors, dismissing them with the cursory statement: “Page & Turnbull did not uncover a list of all 372 resources in the District.” (Id., p. 7)

Thus, neither the older Kostura Survey nor the new Survey conforms with the purpose described in the Secretary of the Interior’s Guidelines for Local Surveys, “the development of a complete, fully documented, comprehensive inventory of the community’s historic properties.” (Anne Derry et al., U.S. Department of the Interior, National Park Service: Guidelines for Local Surveys: A Basis for Preservation Planning, Ch.I, pp.6-7, emphasis added) The Survey should list the 372 contributors noted by the Kostura Survey as well as its 158 additional contributors and all others that remain unsurveyed.

The Survey Report admits that at least 532 parcels in the Project area were recorded on DPR 523A forms but “were left unevaluated” by the Survey. Of those, the Survey notes that at least 159 are ranked as “high priority for future documentation based on visual observation and subsequent consideration of their architectural merit and apparent potential historic significance,” requiring follow-up with DPR 523B forms. (Survey Report, p. 22) The LPAB noted that “732 age-eligible properties [are] currently without determinations of eligibility.” (LPAB Resolution, p.3)

However, nothing in the proposed Resolution or Conditions specifies which parcels will receive survey or follow-up work. Instead, the Conditions only say that the Survey will be amended by another consultant, Kelley & VerPlanck, and that “protection will be provided for roughly 732 properties...that had not been assessed” without listing those properties or their location.

3. The Survey’s Findings Reject Three Districts Identified by the Survey and Omit a National Historic District

The Survey did compile “a total of eight DPR 523D (District Record) forms to examine significant concentrations of properties with similar histories or characteristics” of which “six new DPR 523D forms were completed, while two DPR 523D forms were completed as expansions to existing historic districts.” (Survey Report, p. 12) Of the new Districts proposed in the Survey, the Planning Department “did not concur” with three, including two that appear to clash with the Project’s development plans for a cluster of 400-foot high-rise buildings under the Project’s Market-Van Ness Downtown Residential Special Use District. (Executive Summary, p. 10, and Attachments E-7 and E-11) Thus, the proposed Findings improperly advance the Project’s development incentives instead of providing a valid historic resources Survey. (Executive Summary, p. 11)

One of the proposed Survey districts, the “San Francisco State Teacher’s College Apartment Discontiguous Historic District,” does not meet the definition of an historic district, and conspicuously omits the centerpiece of the contributing historic resources, the State Teacher’s College National Historic District itself. In fact that National Historic District is mentioned nowhere in the Survey. (14 Cal.Code Regs. §4852(a)(5): “Historic districts are unified geographic entities which contain a concentration of historic buildings, structures, objects or sites united historically, culturally, or architecturally. Historic districts are defined by precise geographic boundaries.”) Alternatively, the proposed District could be thematically unified, but without the omitted centerpiece of the State Teacher’s College, it does not include such a theme.

The contributing apartment buildings are certainly of historic and aesthetic merit, but the Survey should also recognize their central focal point, the State Teacher’s College National Historic District. [3] Instead, the proposed district conspicuously omits the central focal point---the actual State Teacher’s College National Historic District, which the Project has approved for demolition in the near future. (Board of Supervisors Ordinance 66-08) The Survey thus disingenuously papers over the Project’s approved demolition of the already-designated State Teacher’s College National Historic District. Aside from failing to meet the definition in §4852(a)(5), the Survey’s “discontiguous” district thus fails to protect the largest publicly-owned property and a National Historic District in the Project area.

4. The Survey Does Not Cover the Project Area and Its Piecemealed Approach Violates CEQA

Even if it had been timely prepared before adoption of the Market-Octavia Project EIR, the Survey falsely claims to include the entire Project area. In fact, it does not, and no comprehensive or coherent historic resources survey exists of the whole Market-Octavia Project area.

The Survey claims coverage by other surveys, which in fact cover only small parts of the Project area. Many cited documents cover only selected types of structures, do not include all structures within their boundaries, consist only of windshield surveys, and/or are more than five years old. Resources in surveys more than five years old are not eligible for listing in the California Register unless the surveys are updated, precluding the category of mandatory CEQA protection that such eligibility provides. (Pub.Res.Code §5024.1(g)(4); 14 Cal. Code Regs. §4852(e)(3).) Thus, by its fragmented coverage and its reliance on older surveys, the Survey excludes from CEQA’s mandatory protections not only the sites it has not covered, but also the sites it claims were covered by older surveys.

The basic purpose of the Survey, to create a comprehensive inventory for protecting historic resources from impacts of development in the Project area, is undermined by the Survey’s jigsaw puzzle approach. The piecemealed approach of citing other surveys also violates CEQA’s requirement to protect the whole Project area with an analysis of cumulative impacts of the Project on historic resources in the Project area, the City, and the State.

5. The Survey Omits Recognized Historic Resources that Are in Imminent Danger of Destruction under the Project’s Rezoning: Examples

The Survey claims it prepared the required forms for the incomplete areas covered, but the vast majority of the forms are only DPR 523A forms with no follow-ups, even on properties where the Survey itself states follow-ups should have been conducted.

Many properties of great historical significance and value have not been analyzed in this survey. Not coincidentally, they are located on sites where large developments are proposed by the Project that place these landmarks in danger of destruction or alteration that will forever destroy their existing character, the cumulative character of existing neighborhoods, and public views. The Survey makes no commitment to do any further follow-up.

The following are only three examples of the Survey’s hundreds of omissions:

a. 67-71 Waller Street: The Victorian Tudor-style structure at 67-71 Waller Street is cited in the Survey as requiring follow-up on the DPR 523-A form. (Survey Report, p. 27) Yet no follow-up has been conducted. In the meantime, with no historical analysis and no interim protective measures, the City has approved a large ten-story building at 1844 Market Street to abut and wrap around this unique and beautiful old structure on two sides. The City has already allowed the structures surrounding the historic residence to be demolished with no environmental review of the impacts on surrounding historic resources, including 67-71 Waller Street. The City has invoked the Project as authority for that demolition.[4]

Not coincidentally, the Project proposes a “street wall” of large high-rise (more than seven-story) condominium structures on both sides of Market Street from Van Ness Avenue to Church Street, as well as a cluster of 400-foot high-rises proposed in the Project’s Van Ness and Market Downtown Residential Special Use District, a significant upzoning of this area with substantial impacts. The proposed “street wall” structures clash in height, bulk, size, and hard-edged modern character, and will dwarf the small, old, residential structures of great historic and aesthetic merit in Edwardian, Victorian and Deco styles that lie immediately adjacent on the streets that parallel or meet the proposed “street wall.”

This fact, combined with the Survey’s failure to follow-up and analyze the site-specific and cumulative impacts on the neighborhood streets and buildings of great merit and character that lie behind the Project’s “street wall,” severely compromises the Survey’s integrity.

The Survey and the proposed Conditions make no commitment to follow up on this parcel in spite of its own recommendation and ranking as a “high priority for future documentation of this property.” (Survey, pp. 22, 27) Thus, the interim protection measures and the Survey failed to account for or protect this and at least 159 other important sites in the Hayes Valley Residential District. The Conditions contain no mention or commitment to study these resources that have not been included or evaluated in the Survey or to follow up on the resources already identified as important contributors.

b. 1960-1998 Market Street: The Survey’s DPR-523A form shows a gas station at this address, which is proposed for demolition to make way for a 10-story condominium development that will wrap around existing historic structures and completely block public views of the United States Mint, a unique, monumental structure of enduring character and prominence adjacent to the proposed development on Mint Hill at 155 Hermann Street. The Mint is on the National Register of Historic Places (No.1988-02-18) and is designated a local landmark in the San Francisco General Plan, which is a local register for CEQA purposes. (Preservation Bulletin No. 16, March 31, 2008; Pub. Res. Code §5020.1(k).) The proposed development, endorsed by the Planning Department under the Project, will adulterate or obliterate all public views of the Mint, substantially impairing its aesthetic and historic significance.

Incredibly, the Planning Department’s Negative Declaration on that proposed development claims that the development will not block views of the Mint. Even the DPR 523A form clearly shows the contrary. The Mint lies immediately north/west of the existing one-story structure. All public views of the Mint will obviously be blocked by any structure that is more than one or two stories in height. The proposed 10-story structure will also abut and completely remove all light, air and views from other structures around the Mint.

Combined with plans for 10-story “street wall” box structures and the large condominium development proposed by the Project on the adjacent Safeway site, views of the historic Mint will be completely blocked from every public vantage point to the south, west and east.

The Survey contains no reference to the unique Mint, its status as a National Historic landmark, or to the impacts of the Project on that structure. The Planning Department’s negative declaration for 1960-1998 Market Street is pending before the Planning Commission.

c. 55 Laguna Street: State Teacher’s College National Historic District. This National Historic District incredibly is not included at all in the Survey. The City has approved the destruction of this entire National Historic District within the Project, which is also the largest space in the Project area zoned for public use. The omission of the State Teacher’s College National Historic District severely flaws the Survey’s integrity for any purpose, particularly in view of its imminent danger of demolition.

This site has not been accurately described as a National Historic District in either the Project EIR (from which it is omitted) or in the 55 Laguna Project EIR (which does not recognize its status as a National Historic District). Besides contributing to the District, four of the buildings on the 55 Laguna Street campus have been designated as local landmarks, i.e., Woods Hall, Woods Hall Annex, Middle Hall, and Richardson Hall. (SF Planning Code, Article 10) Their status as individual landmarks is also absent from the Survey. The entire site is slated for degradation and development, which will forever destroy this publicly-owned National Historic District, and will gut and alter the historic character of any remaining structures. The Project rezones the public National Historic District for private development of 450 market-rate housing units in hard-edged modern high-rise structures. The development proposal in no way complies with the Secretary of the Interior’s Standards for the Treatment of Historic Properties and violates CEQA, the National Historic Preservation Act (NHPA), and the National Environmental Policy Act (NEPA).

The Survey’s omission of this entire site and National Historic District thus facilitates the destruction of an important historic resource.

The Survey’s Executive Summary, p. 4 states, “All possible potential historic districts were documented, and all existing historic districts that may be expanded were documented on DPR 523L forms.” That statement is patently false in view of this and other omissions.

6. The Conditions of Approval Do Not List the Resources Proposed for Further Survey Work, Leaving those Resources Unprotected by Omission

The Survey fails to follow up on many important historic resources. Neither the proposed resolution nor the Conditions define the sites proposed for further survey work, leaving the Survey’s omissions unaddressed with the proposed adoption of an incomplete document.

The Conditions and the Survey should carefully define what has already been surveyed and what has not been surveyed and what has not received follow-up in this Survey and past surveys. The Survey and the Conditions should list each parcel that has not been surveyed by both parcel numbers (block and lot) and street address so that the public, staff, and decisionmakers can be aware of what has and has not been included in the Survey and what will receive further analysis. Both the Survey and the Conditions should also list all parcels by number and address that have been surveyed and those that will receive follow-up analysis by number and address. Without that essential information, the Survey and Conditions do not result in a complete survey that lists every resource, district, and contributing resource in the Project area. Pending completion of the Survey, the entire Project area should remain subject to interim protections, and the protections should not sunset without completion of a comprehensive survey of the whole Project area.

7. The Survey’s Omissions Defeat Cumulative Analysis under CEQA

The Survey has no meaningful comprehensive inventory of the area that would enable analysis of cumulative impacts on historic resources under the Project’s goals to approve large, very dense structures that abut smaller, older structures and clash in architectural style, size, height and bulk with existing neighborhoods. The Survey’s omissions and the lack of comprehensive analysis are a prescription for piecemealed environmental review and exemption in violation of CEQA. To comply with CEQA, the Market-Octavia Project should have been analyzed as a whole area, identifying and mitigating the direct, indirect, and cumulative impacts on historic resources in the whole area. The Survey does not provide the data necessary for that analysis.

8. The Protections Should Cover the Whole Project Area and Should Not Sunset

9. The Survey Is Inconsistent with the General Plan and with the Eight Priority Parcels of Proposition M (Planning Code §101.1(b).)

The incomplete Survey is inconsistent with §§101.1(b)(2) which requires “That existing housing and neighborhood character be conserved and protected in order to preserve the cultural and economic diversity of our neighborhoods.” The Survey is also inconsistent with §101.1(b)(7), which requires “That landmarks and historic buildings be preserved.”

The Survey is also inconsistent with, e.g., the General Plan’s Urban Design Element, Objective 2, Policies 2.1, 2.2, 2.4, 2.6, and 2.7; Objective 3, Policies 3.1, 3.2, 3.5, 3.6, 3.9; Policy 4.15; and others. Further, the legal adequacy of the General Plan itself is disputed in pending litigation.


The Market-Octavia Survey is marred by omissions and failure to follow up on the sites acknowledged as being of historic importance and merit. The omissions are egregious and undermine CEQA’s protection of historic resources in the Project area and throughout San Francisco. Without a comprehensive list by parcel number and street address, it is impossible to tell what parcels have been included and not included in the Survey.

For the foregoing and other reasons, the Commission should not adopt the Market-Octavia Survey or the findings as proposed. Instead, the Commission should require that a comprehensive Survey be completed before final adoption and require interim protection to the entire Project area.

The Commission should also insist that the Survey list by parcel number and street address every property that has been included and every property that has not been included in the Survey and previous surveys of the Project Area so that the public and decisionmakers will be aware of what has been done and what remains to be done. Any future Survey work should include all listed properties not completed and all follow-up work. Any resolution should firmly commit to complete the Survey and include all of the properties in the Project area and require interim protection to the entire Project area.

DATED: February 19, 2009
Mary Miles

[1] According to the Planning Department’s San Francisco Preservation Bulletin No. 11: “In San Francisco, the goals of Historic Resources Survey work are: Assemble data pertinent to land use and preservation decisions. A resource’s historic status, or lack thereof, can impact development proposals...The Planning Department will use survey information when reviewing building permit applications, projects under [CEQA], or projects under Section 106 of the National Historic Preservation Act [which] requires federal agencies to consider potential impacts to historic resources on projects that receive federal funding. Survey findings will also increase property owners’ potential eligibility for tax credits, grants and other preservation incentives such as the Mills Act (reduction in property taxes) by facilitating nomination of significant resources to local, state and national historic registers. Survey findings will make it possible for property owners to request that the provisions of the State Historical Building code, which promotes a more sensitive approach to the rehabilitation of historic structures, be applied to the preservation of character defining features found on both the interior and exterior of the resource. Facilitate protection of significant resources using the provision of Article 10 of the Planning Code.” (Preservation Bulletin No. 11, pp. 1-2)

[2] A “windshield survey” consists of “literally driving around the community and noting the general distribution of buildings, structures, and neighborhoods representing different architectural styles, periods, and modes of construction.” (Anne Derry et al., U.S. Department of the Interior, National Park Service: Guidelines for Local Surveys: A Basis for Preservation Planning, Ch.I, p. 4)

The Survey could also have included all of these buildings as contributing resources by adjusting the boundaries of the Hayes Valley Residential District instead of creating a checkerboard effect in both the proposed discontiguous district and the already existing Hayes Valley Residential District.

[4] The site of this historic resource lies within the mapped boundaries of both the 1997 Kostura Survey’s Hayes Valley Historic District and the proposed Hayes Valley Residential District, but is not listed among the “contributing resources proposed for addition.” (Executive Summary, Attachment #4)