Patrick Kolasinski – Law Blog

Posted By Patrick on April 30, 2010

The California State Historic Resources Commission had its quarterly meeting in Sacramento today, and I was there. As is normal with such meetings, the SHRC had a slate of properties that were nominated for inclusion on the State or National Registers of Historic Resources. Nothing major or earth-shaking, except for the last nomination on the list – Fulton Mall in Fresno.

The nomination is an interesting one, because (unlike most historic resources), the mall is a) less than 50 years old, b) subject to an unusual ownership situation, and c) incredibly controversial. The mall was built in 1964 as part of an attempt to revitalize Fresno’s then-declining downtown. It was apparently the first project of its kind in California, and served as a guide for later projects such as Santa Monica’s 3rd Street Promenade, Sacramento’s K Street, and Modesto’s 10th Street Place.

Fast forward 46 years from the mall’s opening to today and Fresno is again facing a need to revitalize its downtown. The city is exploring its options, and the favored plan appears to be one that would remove the mall and allow automobile traffic through at least part of the current mall location. Not surprisingly, this has generated a bit of debate.

As part of the debate, a small group of citizens nominated the mall for inclusion in the National Register of Historic Resources. While listing in the National Register wouldn’t act as an absolute bar to the city’s current plans, it would serve as a significant obstacle that would be time-consuming, expensive, and just a plain pain to overcome. I suppose there’s a good argument to be made that National Register listing would make it so difficult to tear out or modify the mall that it is an effective bar, but that’s not my place to determine.

During the nomination process, Fresno’s Historic Preservation Commission reviewed the nomination and determined (in a 4-to-1 vote) that the Mall did, in fact, meet the eligibility criteria for a National Register listing. The FHPC immediately followed this determination with a unanimous resolution suggesting that the Mall not be listed (at least not at this time). The Mayor, City Council, and several other groups and organizations joined in calling for the Mall to not be listed, giving rise to a fair bit of debate in Fresno. In the meantime, the nomination process continued, setting the stage for today’s SHRC meeting.

This is a good spot for a quick note here about the role of the SHRC in the nomination process. The SHRC does not actually list things on the National Register. That job falls to the Keeper of the National Register (usually called just “the Keeper”), who works for the National Parks Service. Instead, the SHRC reviews nominations to determine whether the nominated resources meet the criteria for listing on the National Register. If the SHRC determines that the resource does meet the criteria, it makes a finding of eligibility and passes the whole thing on to the Keeper. Usually, the SHRC also sends along a recommendation that the property be listed, but not always: the SHRC’s primary job in the process is to serve as a “gatekeeper” so that the Keeper isn’t flooded with tons of unworthy nominations.

And so we arrive at today’s meeting. After the ordinary business was conducted, the Office of Historic Preservation Staff presented the Fulton Mall nomination to the SHRC. After the OHP presentation, the floor was opened to comments in opposition to the nomination, with 20 minutes allowed for all opposing comments.

The opposition was well-organized and used almost exactly 20 minutes to present its case. I regret that I wasn ‘t fast enough to note who spoke on behalf of the opposition (although if you were one of the speakers and would like to be named here, please contact me – I’ll happily include you). The objections raised were clear, succinct, and almost entirely procedural. Specifically, the opposition raised concerns about a) whether adequate notice had been given to all of the property owners, b) whether all of the affected property owners had actually been identified, and c) in any regard, more than half of the property owners oppose the nomination and very few actually support it, so the property should not be listed. Additionally, there were some concerns with the content of the nomination, specifically the extent to which the original nomination identified the criteria under which listing was sought.

Time for another side note: owner opposition is an important consideration because a property cannot be listed on the National Register over the opposition of a majority of the owners. If a property is found to be eligible but the majority of the owners object to the listing, the Keeper will state that the property has been “formally determined to be eligible,” but will not include the property on the National Register. The property will, however, be automatically included in the California Register, as any property “formally determined to be eligible” for the National Register gets automatically listed on the California Register, regardless of whether it is actually listed nationally. Listing on the California Register triggers nearly all of the same environmental protections under state law (the California Environmental Quality Act, or CEQA), but there are some differences.

Following the opposition’s presentation, one lone representative of the nomination’s supporters spoke briefly. A short rebuttal by the opposition came next, and then the meat of the meeting began – the SHRC’s deliberation.

The commission, led by Chair Julianne Polanco, began its review by questioning OHP staff (specifically State Historian Jay Correia) on the adequacy of the nomination. There were some concerns about changes made to the nomination paperwork after the electronic distribution of that paperwork to the Commissioners, but these were resolved as being effectively insignificant (an additional line stating that there were multiple owners of the resource was added to the cover page).

Chair Polanco then led a review of the procedural concerns raised by the opposition, grilling OHP staff on the details of the nomination. The concerns were addressed one by one, and it emerged that the biggest issue was that there was some confusion as to who the actual owners of the affected properties are. Without an accurate count, it is impossible to determine whether the opposition managed to meet the 50% mark for blocking National Register listing, so this was quite a big deal.

As this conversation wore on, Commissioner Rick Moss caught everyone’s attention with a single, clear observation. He noted that there had not been a single bit of opposition to the determination that FultonMall is actually eligible for listing on the National Register. Commissioner Moss noted the importance of procedure, but he focused the Commission on the fact that the SHRC’s core goal here was to determine whether or not the property was eligible, and that this was a separate determination from the procedural one that everyone was focusing on.

This one observation clarified the issue for everyone, and the mood in the room palpably changed as it was made. It was suddenly clear that FultonMall is, without question, eligible for inclusion on the National Register. The only question is whether it should be included or only “formally determined to be eligible.” The choice between these two options falls not to the SHRC, but to the Keeper, and so the path for the SHRC was made suddenly clear.

The discussion returned to the procedural issues, but the writing was on the wall. Everyone knew what the result would be when the vote would be called. The final part of the discussion was dedicated to clarification of the legal issues in play, with explanation provided by State Parks Staff Counsel Tara Lynch, who answered the Commissioner’s questions about the voting options available to them.

Commission Chair Polanco called for a motion, which was made by Commissioner Moss, seconded by Commissioner Bryan K. Brandes, and voted on unanimously by the whole commission. There were no dissenting votes and no abstentions, and the final decision was clear: the SHRC voted to find Fulton Mall eligible for listing on the National Register. Because the Commission could not determine that the Mall should in fact be listed (as there was no way to tell whether enough owners had object to block the listing), the Commission did not issue a recommendation on that front.

The next step will be for the nomination to be forwarded to the Keeper, who will make a determination of eligibility. It appears most likely that the Keeper will formally determine that the Mall is eligible for the National Register, and so it will almost certainly be listed on at least the California Register (and possibly in both places). Stay tuned for more updates.

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Category: Historic Preservation
Tags: Fresno, Fulton Mall, SHRC