San Mateo ordinance to designate historic homes without owner permission prompts lawsuit

A group of San Mateo homeowners is suing the city for allegedly promising residents consent before officially designating homes as historic, but then adopting an ordinance that doesn't require permission. 

"The state of California, if you're more than 50 years old and this is what's going on in the city level, you become potentially eligible to be historic," Frank Elliott, the lead of a group called "Less Red Tape" told CBS News Bay Area. "It's not necessarily anything important happened there, it's not that anybody important lived there. It just can be some criteria that's not well defined." 

The city had been working to update its historic preservation ordinance to create a framework for the designation of historic resources and districts. Officials had been basing some of the designation by considering homes from a 1989 survey, that established which properties could be deemed historic. 

Homes not on that survey that are up for consideration, however, would still need owner consent. 

"I'm part of a district where this is being done at a statewide level. And so, I'm concerned about the unfair process in general, I feel like it's being misused," Elliott said. "People should have a say in what happens to their homes. That they should have a choice whether they're going to be regulated."

Elliot said the city has also adopted the ordinance without a full environmental review. 

"We really feel like what's happening is unfair, that people should have a say in what happens to their homes," he added. "That they should have a choice whether they're going to be regulated, and that we shouldn't have historic or be deemed historic when you go to model your house." 

City council voted 5-0 in favor of passing the ordinance, and San Mateo Mayor Adam Loraine reassured that they will have a public process of historic home designation. 

"The idea behind introducing a mechanism by which a council could designate as historic in my mind included out of an understanding that there may be historic properties within our city that nearly everyone in our city could agree has some historic significance," Loraine said in a meeting. "But as have been discussed by staff, nothing is being designated tonight. And I would certainly hope that the first considerations would not happen until after we update the survey and then following that, begin looking for those properties who have property owners who are interested in being included in the inventory first to maintain designation by consent. And to offer assistance through the mechanism to those properties owners through potentially offering incentives."

Elliott alleges, however, that some of the wording in the ordinance strips away homeowners' rights. 

"The home is potentially historic will never be able to change, or have difficulty changing, but the neighbors across the way can do whatever they want. It just seems grossly unfair to me," he said. 

Laurie Hietter, president of the San Mateo Heritage Alliance, says that historic preservation is an important aspect to any city. 

"San Mateo's ordinance was three pages long. So, it was definitely in need of updating," Hietter said. "It needed modernizing, there was a lot more detail about definitions and procedures. The city deferred a lot of the procedural information that a lot of the community is looking for to implementation."

"That being said, it's good things. It's progress," she added. "Overall the ordinance is quite a step back in terms of preservation. Because number one, the inventory is so limited. The inventory only includes the historic downtown ad three properties already listed on the national register or state register. [It] introduces the consent concept which is getting more popular but it's not recommended by the state historic preservation in their guidance for procuring ordinances." 
 
Hietter said that San Mateo has great history and people are excited to learn more about it. 

"The city held back some discretion which I think is rely important because historic resources are a community value. It's not just individual property," she said. "I look forward to the planning people coming up with more specificity. Because that's what everyone needed to know. What's going to happen if I renovate my house? And under this ordinance, nothing really changes for anyone renovating their house, historic or non-historic."

Hietter said she is looking forward to the city designating a historic resources commission to moving forward with the process. 

"They did commit to doing a survey but there's no timeline, there's no guarantee," Hietter said. "The survey will be updated." 

Hietter noted that it's actually unusual to require owner consent before a property is designated as historic and that courts have found that strict owner-consent provisions would unlawfully delegate legislative power to private property owners, regardless of its public value. 

"Homeowners can't opt out of a flood zone or fire zone designation either," Hietter added. 

Elliott clarified that he's not against historic preservation. He's frustrated by how the city conducted this entire process. 

"It doesn't even seem legal to me, which is the basis of our lawsuit. If you're going to do this, you ought to notify the people involved," he said. "These homes were thrown in at the last minute without being on the agenda and came as a complete surprise to everybody."

"Somebody needs to stand up for them, and that's what I'm doing," he added 

CBS News Bay Area reached out to the city for comment and a spokesperson declined due to the pending litigation.