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CONSIDERATION OF UPHOLDING THE DECISION OF THE HISTORIC PRESERVATION COMMISSION TO NOT AMEND THE HISTORIC ELIGIBILITY STATUS OF THE SEARS BUILDING LOCATED AT 565 BROADWAY
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA UPHOLDING THE DECISION OF THE HISTORIC PRESERVATION COMMISSION TO NOT AMEND THE HISTORIC ELIGIBILITY STATUS OF THE SEARS BUILDING LOCATED AT 565 BROADWAY
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RECOMMENDED ACTION
Recommended Action
Council conduct the public hearing and adopt the Resolution.
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SUMMARY
The Sears building located at 565 Broadway (Attachment 1) was identified as an Eligible Historical Resource as part of the City’s 2012 Historical Resources Survey (Survey). Pursuant to Chula Vista Municipal Code (CVMC 21.04.010), Historical Resources Surveys are to be utilized as informational tools by the City, other municipal departments or agencies, and members of the public for preservation purposes, designation consideration and /or as part of project analysis. The determination of the Sears building as Eligible merely provides the City and the property owner the information that would be otherwise required if or when a project were to be proposed for the Sears building, or if Sear’s were to pursue designation. Although the City’s Historic Preservation Program does not include a process for appealing the findings of a survey, Sear’s was provided an opportunity to present the Historic Preservation Commission (Commission) with their request to change the Survey’s eligibility status to “Not Eligible.” The Commission considered all information presented to them and a motion was made and seconded to change Sears’ eligibility status to “Not Eligible.” The motion failed. As such, Sears is still considered an Eligible Historical Resource as part of the City’s 2012 Survey. Sears is appealing this determination to City Council.
ENVIRONMENTAL REVIEW
The Development Services Director has reviewed the applicant’s request for reconsideration of Historic Eligibility for compliance with the California Environmental Quality Act (CEQA) and has determined that the activity is not a "Project" as defined under Section 15378 of the State CEQA Guidelines; therefore, pursuant to Section 15060 (c)(3) of the State CEQA Guidelines the activity is not subject to CEQA. Although environmental review is not necessary at this time, if modifications are proposed to the Sears building in the future, environmental review may be required and a CEQA determination completed.
BOARD/COMMISSION RECOMMENDATION
At their regularly scheduled meeting on December 4, 2013, the Historic Preservation Commission (Commission) considered all information provided including: the City’s 2012 Survey, an Expert Technical Analysis (ETA) prepared by Heritage Architecture on behalf of Sears, the 2012 Survey consultant ASM’s review and recommendation report on the Sears ETA, and testimony from both Heritage and ASM. A motion was made to remove the Sears building from the Historic eligibility list; however, the motion failed by a vote of 2-4-0-0, and no action was taken by the Commission. Therefore, the Sears building status remains as an Eligible Historical Resource.
DISCUSSION
Historical Resource Surveys (Survey)
A Survey is a systematic, detailed examination of an area designed to gather information about historic properties. Evaluations of resources are made on a form prescribed by the State Historic Preservation Office, referred to as a Department of Park and Recreation 523 Form or DPR form. The information and analysis contained within the DPR form conforms to state preservation guidelines for recording historical resources. In 2011, the City of Chula Vista retained a qualified professional consultant, ASM Affiliate, Inc. (ASM), to conduct a survey of the northwest and southwest portions of the City (2012 Survey). The 2012 Survey was performed in accordance with the Chula Vista Historic Preservation Program and, the State Historic Preservation Office guidelines. DPR forms were completed as part of the survey.
Eligible Historical Resources
Pursuant to the Chula Vista Municipal Code (CVMC 21.03.44), an Eligible Historical Resource is any resource that has been determined through a survey to have historic significance. The eligibility of a resource is determined by examining how the resource relates to the historic context of an area. The historic context of an area, such as that developed through the 2012 Survey for Chula Vista, is a critical piece for understanding, identifying, evaluating, and protecting those resources which give each community its individual character and sense of place. A historic context focuses on describing those historical development patterns within which the significance of a resource can be understood, and what important property types were associated with those developments. The properties (resources) of an area are then reviewed within the historic context based upon established eligibility criteria. In the case of Sears, it was identified as one of very few large retail commercial buildings constructed in western Chula Vista that was built within the City Maturation Period. (Attachment 2)
2012 Survey- Development of a Historic Context
The Historic Context for the 2012 Survey divided Chula Vista into three periods of historic significance. The Community Building Period (1870-1910), the City Development Period (1911-1939), and the City Maturation Period (1940-1970). Based upon its year built, Sears falls with the City Maturation Period.
The Survey found that significant property types constructed during the City Maturation Period included residential, commercial, civic and community buildings. The Sears building was recommended in the Survey as being an Eligible Historical Resource for its association with commercial development during the City Maturation Period. The Survey also identified the Sears building, as an excellent local example of Modern Commercial architecture. The Sears building is one of only six Modern Commercial buildings identified out of the more than 12,000 buildings surveyed on the west side.
2012 Survey- Evaluation of Potential Historical Resources
To complete the DPR forms, ASM identified resources 45 years or older that appeared to meet the City’s eligibility criteria (Attachment 3). ASM also queried the community on what resources they believed were important to Chula Vista’s history. To obtain information on potential historical resources, ASM, researched Assessor records, conducted a reconnaissance survey of the west side of Chula Vista, held two public workshops, each of which was noticed in the local newspaper, conducted a presentation at a regularly scheduled Historic Preservation Commission meeting, and created a Public Input Form that was posted on the City’s website, as well as distributed throughout the community. The Chula Vista Sears building located at 565 Broadway was one of many resources that were identified by the public as having historic significance to Chula Vista, and therefore was evaluated in the second phase of the Survey, with the other potential historical resources identified by ASM.
Survey Results and Property Owner Notification
Once all identified potential historical resources were evaluated by ASM, the property owners of those properties recommended as Eligible (including Sears) were noticed of the Survey results in September 2012. The property owners were invited to attend the September 19, 2012 Commission meeting to learn more about the Survey and were advised that the Survey report, in its entirety, would be available for their review and comment during the public comment period of September 19, 2012 - October 3, 2012. In addition, each property owner was sent a Historical Resources FAQ sheet that provided an explanation of the Survey, the Survey process, what it means to be an Eligible Historical Resource, and what the process would be if they wanted to remodel, alter or demolish an Eligible Historical Resource (Attachment 4).
Upon Sear’s receipt of the notification of Eligibility, staff was contacted by representatives of Sears inquiring about the implications of Eligibility. Also, a representative of Sears attended the September 19, 2012 Commission Survey meeting. Significantly, no information to contradict the Survey findings of the Sears building was provided by the applicant during the Survey process.
In November 2012, after the Survey had been finalized, staff was contacted by and met with an attorney for Sears. At this meeting with the Sears attorney, staff explained that historical surveys are informational tools that assist in avoiding delays in both the building permit and development process by providing the necessary historical information in advance. Staff further explained that, although there is not a process to appeal surveys, in such a case where there was factual inaccuracy of survey data, new information may be considered.
Further, the attorney was advised of the many benefits of being identified as an Eligible Historical Resource, including the fact that as an Eligible Historical Resource the Sears building would qualify to utilize the State Historical Building Code (SHBC). The SHBC provides alternative standards and regulations that help encourage energy conservation and cost effective approaches to preservation, reasonable life safety measures, and reasonable usability of historical resources by the physically disabled. The SHBC is intended to allow for the rehabilitation and adaptive reuse of existing historic buildings and is an important aspect in both preservation and sustainability.
Sears request for Eligibility Reconsideration
In June 2013, approximately 8 months after the finalization of the 2012 Survey, Sears submitted an Expert Technical Analysis (ETA) report, prepared by Heritage Architecture and Planning (Heritage) for the law firm of SNR Denton US on behalf of Sears. Heritage, like ASM, is a qualified professional firm that meets the Secretary of Interior Standards for Qualified Professionals. As a result of their research and analysis, Heritage concluded that the Chula Vista Sears was not an Eligible Historical Resource (Not Eligible). It is the professional opinion of Heritage that the Chula Vista Sears has not retained enough of its historic integrity to be considered historic.
ASM Re-Evaluation of Sears Eligibility
In consideration of the new information provided in the Heritage ETA, the City requested that ASM re-evaluate the Sears building based upon the new information. The Heritage ETA included the exact age of the Sears building, original drawings, historic images and information about the architects of the building, none of which ASM had at the time of the 2012 Survey. After a thorough review of the Heritage ETA, ASM still recommends the Sears building as Eligible for its relationship to the City’s Historic context and for its architecture. In addition ASM now further recommends Sears to be Eligible, as a unique local example of the work of the master architects, Stiles and Robert Clements. However, based on the exact age of the building provided in the Heritage ETA, ASM no longer found the Sears building to be Eligible for listing on the National or State Registers, as the building does not meet the 50 year old threshold for national and state listing, and therefore does not yet warrant listing on either of these registers. (Attachment 5)
Historic Preservation Commission Consideration of Sears ETA
In light of the two differing professional opinions, the Commission considered the request to revise Sears’ Eligibility to “Not Eligible.” Both ASM (Shannon Davis) and a representative, on behalf of Sears, from Heritage (David Marshall) attended this meeting and gave presentations explaining their professional opinions on the Eligibility of the Sears building.
Ms. Davis explained to the Commission that ASM continues to recommend the Sears building as Eligible because it is a good example of the Modern style and for its association with commercial development, within Chula Vista’s historic context. It is one of Chula Vista’s few remaining large retail destinations from Chula Vista’s City Maturation Period. ASM states in their re-evaluation report that the Chula Vista Sears is one of only six commercial buildings, identified in the 2012 Survey, that represent good local examples of the Modern style. Ms. Davis stated that although some of the original materials had been removed, or had been altered, many of the original Modern Commercial features remain such as: the two-story horizontal massing, flat roof, angular lines, brick and concrete block walls, lack of applied ornament, wide overhanging canopies, barreled canopy on the south façade, metal screen and charcoal grey Mirawal panels on the main/north façade, no upper floor windows, exterior circulation patterns around the periphery of the building shaded by the canopies, landscaping elements including planters and palm trees, and large expanses of surface parking on three sides of the building. ASM concluded that the building retains good integrity of location, feeling and association. In addition, it is ASM’s opinion that the fact that 5th Avenue no longer runs through the center, does not reduce the eligibility of the Sears building, as it retains sufficient overall integrity, especially in light of the rarity of this property type in Chula Vista and, as is stated in the Heritage ETA, the Sears building was constructed after and separate from the rest of the mall.
ASM further recommends Sears as Eligible for being the only known building designed and built in Chula Vista by master architects Stiles and Robert Clements. The architectural firm of Stiles Clements is credited for much of the development along Whilshire Boulevard in Los Angeles, also known as Miracle Mile. Stiles Clements was a master architect, known for his design of supermarkets and for shopping centers in the mid-twentieth century. There are very few examples of Stiles Clements work in San Diego County, and the Sears building is one of his last designs and the only known example of his work in Chula Vista.
David Marshall, of Heritage, also gave a presentation at the December 4th Commission meeting. In his presentation, Mr. Marshall stated that it was Heritage’s professional opinion that the alterations to the Sears building were significant. The exterior alterations he cited included: the removal of the Garden Center, the enclosure of display windows, exterior sign renovations, enlargement of the columns, and closure of Fifth Avenue. He stated that the alterations reduced the historic integrity of the Sears building. Further, it is Heritage’s opinion that the closure of 5th Avenue cut-off Sears from the rest of the mall and therefore reduces the historic integrity of the Sears building. As stated above, the Sears building was originally constructed separate from the western portion of the mall, and included its own entrance and parking lot. The closure of Fifth Avenue did not alter this situation.
Both ASM and Heritage discussed with the Commission their opinions of what constitutes significant alterations. During Commissioner comments Heritage was asked to explain in terms of percentages those portions of the Sears building that were renovated or altered. Mr. Marshall stated that the percentage of alterations varied but he would guess that approximately 35 to 45% of the bottom portion of Sears had been altered, and he agreed that none of the second story portion had been altered. He acknowledged that the first floor windows had been covered over but that the windows could be opened up again and that the change to windows was not permanent. Commissioner Fotiadi stated that he believed that the alterations were probably closer to 35%. Commissioners Fotiadi also questioned Mr. Marshall about the changes made to the second story facade. Mr. Marshall acknowledged that only 35-45 % of the façade had been altered and that the original façade treatment could be reinstalled. Commissioner Fotiadi (who is an architect and meets the Secretary of Interiors Standards of a qualified individual) stated his understanding that the threshold for saving a building is alteration of less than 50% of the building. Commissioner Fotiadi further stated that, when viewed in these terms, 35% is a relatively small portion of the overall building that had been altered. (Attachment 6 p.41-45 of Capital Reporting Company transcript)
In consideration of all information provided by both Expert Professionals, and after an extensive discussion on the extent of alterations to the building and the impact to the historic integrity of the building as a result of the alterations, a motion to change the Eligibility to “Not Eligible” failed on a 2-4-0-0 vote (Attachment 7).
Sears Appeal of the Commission Decision (Attachment 8).
On December 17, 2013, staff received an application from Sears to appeal the decision of the Commission. Sears submitted a 12 page Letter Brief and 8 supplementary exhibits from the law firm of Dentons (Attorney for Sears). In summary, the Denton letter brief and exhibits state:
1. The Commission’s original erroneous finding of “Eligibility” and failure to correct that finding at the December 4, 2013 hearing is an abuse of discretion and not support by the overwhelming evidence submitted to the contrary.
2. The Commission relied on inaccurate information and a cursory survey prepared by the City of Chula Vista’s expert.
3. The Commission applied the wrong legal standards and inquiries.
4. The Commission failed to issue any written findings, as required by California case law.
5. The Commission’s procedures, as applied in this case, are fundamentally unfair and constitutionally impermissible.
Response to Sears Appeal/Denton Letter Brief
Sears has been afforded the appropriate opportunities to demonstrate that the information provided in the 2012 Survey is factually inaccurate. Although the ETA submitted by Heritage provided a more intensive analysis of the Sears building than was conducted in the 2012 Survey, neither ASM nor the Commission believes that the information contradicts the 2012 Survey recommendation of Eligibility, with the exception of the fact that ASM no longer recommends the Sears building as Eligible for listing on the National or State Registers based on its age.
In addition to ASM’s re-evaluation of the Sears building Eligibility, Sears was provided an opportunity to present all information to the Commission, which is the authority on historic preservation matters in the City. After consideration of all information provided by both Expert Professionals, the Commission retained the historic eligibility status of the Sears building.
Below are responses to each of the assertions presented in the Sears appeal/Denton Letter Brief:
Denton Assertion #1: The Commission’s original erroneous finding of “Eligibility” and failure to correct that finding at the December 4, 2013 hearing is an abuse of discretion and not supported by the overwhelming evidence submitted to the contrary.
Response #1: The Commission did not make a “finding” of Eligibility on the Sears building. The Sears building was determined to be Eligible through a Survey that was conducted by professionals from ASM that exceed the Secretary of the Interior’s professional qualification standards for Architectural Historians. In addition, the 2012 Survey was conducted in compliance with the:
• City of Chula Vista’s Historic Preservation Program,
• Guidelines provided by the Secretary of the Interior, National Register Bulletin 24, Guidelines for Local Surveys, and
• California Office of Historic Preservation Instructions for Recording Historical Resources.
There was no failure on the part of Commission to “correct the finding” as the Commission did not make the original determination of Eligibility. As discussed above, the original determination and the re-evaluation of the Sears building were made by ASM, a qualified professional. With the exception of the age of the Sears building, no other information has been provided that demonstrates factual error in the 2012 Survey Eligibility recommendation. In fact, both ASM and the Commission thoroughly considered the “overwhelming amount of evidence” provided by Sears and still continue to recommend the Sears building as an Eligible Historical Resource.
Pursuant to Chula Vista Municipal Code (CVMC 21.04.010), Historical Resources Surveys are to be utilized as informational tools by the City, other municipal departments or agencies, and members of the public for preservation purposes, designation consideration and /or as part of project analysis. No Findings of Fact were made or were required on the part of the Commission for the 2012 Survey. The determination of the Sears building as Eligible merely provides the City and the property owner the information that would be otherwise required if or when a project were to be proposed for the Sears building, or if Sear’s were to pursue designation.
Denton Assertion #2: The Commission relied on inaccurate information and a cursory survey prepared by the City of Chula Vista’s expert.
Response #2:
ASM conducted a thorough review of all documentation and research compiled in the ETA prepared by Heritage. The Heritage ETA did provide information that ASM had not previously considered, however in consideration of this new information, ASM continues to recommend the Chula Vista Sears building as an Eligible Historical Resource. In addition, Sears and their representatives attended the December 4, 2013 Commission meeting, and Heritage, on behalf of Sears, provided the HPC a professional and informative power point presentation, which included 44 slides.
Both ASM and Heritage were given an opportunity to respond to questions from the Commission. The Commission was very engaged and asked questions that, in staff’s opinion, were fair and on point with the subject at hand. After consideration of all information presented, a motion was made to change the Eligibility status but it failed by a vote of 2-4-0-0. No action was taken by the Commission and the Sears building remains an Eligible Historical Resource.
Denton Assertion #3: The Commission applied the wrong legal standards and inquiries
Staff Response #3: As stated above, the Survey followed professionally accepted guidelines for conducting surveys, was conducted by qualified professionals, and in accordance with Chula Vista Municipal Code section 21.04.010. Historical resource surveys do not require owner consent or participation prior to the Survey being finalized. However, notice was provided as a courtesy to all property owners of those resources determined to be Eligible Historical Resources, including Sears.
To date, no information has been provided by the applicant that demonstrates factual errors in the survey on the part of ASM or the City. In an effort to accommodate Sears, staff presented all information provided by Sears to the Commission in an appeal type process. As discussed above, the Commission considered all information and did not change the Eligibility status of Sears.
Denton Assertion #4: The Commission failed to issue any written findings, as required by California case law.
Staff Response #4: No findings of fact are required for Surveys to determine Eligibility and no findings of fact were made for the 2012 Survey. The matter presented to the Commission on December 4, 2013 was consideration of new information provided by the applicant, not a dispute over findings of fact. The Commission did not make the original Eligibility determination for the Sears building nor did they accept or adopt any findings of fact related to the 2012 Survey. In accordance with the City’s Historic Preservation Program (HPP), surveys are conducted in accordance with State guidelines, and therefore do not require findings of fact. Both staff and ASM reviewed the Sears ETA and concluded that the new information provided did not demonstrate factual errors on the part of the 2012 Survey, and therefore, change in the conclusion of the Survey was not warranted. In addition, the fact that the Chula Vista Sears building was designed by master architects Stiles and Robert Clements, as identified by the applicant’s ETA, further qualifies the building for Eligibility under Criterion 3. For these reasons, staff made the recommendation to the Commission to take no action and retain the Eligibility determination.
Denton Assertion #5: The Commission’s procedures, as applied in this case, are fundamentally unfair and constitutionally impermissible.
Staff Response #5: The consideration process has been more than fair and reasonable as demonstrated by the time and effort made by staff, ASM and the Commission to consider all information provided by Sears and their representatives, and the fact that Sears was afforded due process not required by the Municipal Code. In addition, Sears was afforded the opportunity to present their information, in a public forum, to the Commission. The Commission considered all information provided to them at the December 4, 2013 meeting, and based upon that information took no action thereby retaining the Eligibility determination.
ASM’s Response to Sears Appeal/Denton’s Letter Brief (Attachment 9)
As the appeal and letter brief cites specific errors on the part of ASM, staff requested that ASM review and respond to the appeal package submitted by Sears. Ms. Davis, on behalf of ASM, reviewed the appeal package and her response is summarized below:
1.) ASM conducted a thorough review of all documentation and research compiled in the ETA prepared by Heritage. The Heritage ETA did provide information that ASM had not previously considered, however in consideration of this new information, ASM continues to recommend the Chula Vista Sears building as an Eligible Historical Resource.
2.) In their Letter Brief, Dentons states that the 2012 Survey conducted by ASM was superficial. Both ASM and staff assert that in no way can the survey or decisions made as a result be classified as superficial. The 2012 Survey was conducted by individuals who exceed the Secretary of the Interior’s professional qualification standards for Architectural Historians. All decisions were made through a comprehensive survey of the city’s built environment, the development of a historic context within which all buildings were evaluated, public input, and careful and reasoned consideration of all resources surveyed. DPR forms were completed for all Eligible and Not Eligible properties in accordance with CVMC Section 21.04.010, Chula Vista HPP Section 3.1, and the California Office of Historic Preservation’s Instructions for Recording Historical Resources.
3.) Denton claims that the ASM presentation to the Commission applied an incorrect litmus test when explaining historic integrity. Both ASM and Heritage explained to the Commission the concept of integrity and its part in determining eligibility. Denton inaccurately characterized ASM’s presentation at the December 4, 2013, HPC meeting pertaining to the discussion regarding integrity. As an example to explaining the technical aspects of integrity, ASM suggested that the HPC apply a litmus test of would a person associated with a building during its period of significance still recognize the building today. This test is often used unofficially for assessing integrity and was only made after addressing the seven aspects of integrity (as defined by the NRHP and followed by Chula Vista under CVMC 21.03.084).
4.) Denton states that ASM used Sear’s “potential for restoration” to determine the Eligibility of Sears. The potential for restoration was discussed, however the potential for restoration was not a factor in ASM’s recommendation that Sears is an Eligible Historical Resource. The information contained in the DPR form was the basis for determining eligibility. The DPR form for Sears DPR was completed based upon the facts known at the time of the survey. With the exception of the exact age of Sears, no facts have been presented that dispute the information included in the original DPR form.
5.) Denton’s letter brief claims that the Commission relied on “inaccurate information” from ASM. ASM is not aware of nor did Heritage show any “inaccuracy” in either ASM’s letter of review or testimony provided by ASM at the December 4, 2013 meeting.
6.) Denton’s letter brief states that ASM failed to “dispute or rebut the lack of historical significance of the Sears building”. ASM’s professional opinion on Sears Eligibility is clearly supported by the information in the survey (DPR form), as well as reasons included in both ASM’s letter report and their presentation at the Commission December 4, 2013 meeting.
In review of Sears submittal package as presented in this report, both staff and ASM continue to recommend that the Chula Vista Sears be identified as an Eligible Historical Resource.
CONCLUSION
All effort on the part of staff, ASM, and the Commission was made to thoroughly review and fairly consider all information provided by Sears. It is staff’s opinion that the Commission made a decision based on accurate information and applied the correct legal standards and therefore, staff recommends that the Council uphold the decision of the Historic Preservation Commission and not amend the historic Eligibility status of the Sears building located at 565 Broadway.
DECISION-MAKER CONFLICT
Staff has reviewed the property holdings of the City Council and has found no property holdings within 500 feet of the boundaries of the property which is the subject of this action. Other potential conflicts of interest are currently being evaluated.
LINK TO STRATEGIC GOALS
Historical Resource Surveys (Surveys) are important tools in identifying those resources that contribute to Chula Vista’s individual character and unique sense of place. Understanding and protecting such resources meets both the Connected Community goal and the Healthy Community goal as it promotes civic pride and sustainability through the recognition, preservation, and adaptive re-use of the limited resources that contribute to Chula Vista’s rich heritage.
CURRENT YEAR FISCAL IMPACT
The applicant has paid for all staff time and costs associated with this item through a deposit account. There are no other fiscal impacts.
ONGOING FISCAL IMPACT
There are no ongoing fiscal impacts.
Attachments
Attachment 1: Locator Map
Attachment 2: ASM DPR Sears Building (September 2013 update & 2012 Survey)
Attachment 3: Historical Resource Surveys (CVMC 21.04.010) and Eligibility Criteria (CVMC 21.04.100)
Attachment 4: Property Owner Eligibility Letter and Historical Resource FAQ
Attachment 5: ASM’s Reevaluation Letter Report
Attachment 6: Capital Reporting Transcript (Sears Exhibit G)
Attachment 7: December 4, 2013 HPC meeting Action Minutes
Attachment 8: Sears Appeal Package & Denton Letter Brief
Attachment 8 A: Sears Exhibit A - Revised Draft 2012 Survey
Attachment 8 B: Sears Exhibit B - Heritage Expert Technical Analysis Report (ETA)
Attachment 8 C: Sears Exhibit C - City Correspondence to Sears Attorney
Attachment 8 D: Sears Exhibit D - Sears Attorney Correspondence to the City
Attachment 8 E: Sears Exhibit E - Commission Consideration Application
Attachment 8 F: Sears Exhibit F- Heritage Power Point Preservation to the Commission
Attachment 8 H: Sears Exhibit H- National Register Bulletin: How To Apply the National Register Criteria for Evaluation
Attachment 9: ASM’s Letter Response to Sears Appeal Package/Denton’s Letter Brief