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HomeMy WebLinkAbout07-08-08 Heritage Preservation Commission Agenda PacketCity of Saratoga HERITAGE PRESERVATION COMMISSION AGENDA Date: Tuesday, July 8, 2008 8:30 a.m. Place: Warner Hutton House, 13777 Fruitvale Avenue Type: Regular Meeting — Please meet in the Planning Conference Room. 1. Routine Organization A. Roll Call B. Approval of minutes from June 10, 2008 meeting C. Posting of Agenda — Pursuant to Government Code Section 54954.2, the agenda was posted on July 3, 2008. D. Oral & Written Communication - Any member of the public may address the Commission about any matter not on the agenda for this meeting for up to three minutes. Commissioners may not comment on the matter but may choose to place the topic on a future agenda. E. Oral Communications — Historic Preservation Commission direction to Staff — Instruction to staff regarding actions on current Oral Communications. 2. Old Business A. Discuss National Registry & Saratoga Landmark Plaques B. Discuss Heritage Orchard Signage C. Discuss Historic Incentives D. Discuss Sign for McWilliams House 3. New Business A. None 4. Pending Items A. Historic Resources Inventory B. National Register Applications C. Update Heritage Ordinance D. Review additional content for Heritage Resources webpage E. Historic Preservation Data Base F. Review list of properties with structures 50 years and over in age 5. Adjournment Adjourn to 8:30 a.m. Tuesday, August 12 2008, Planning Conference Room, 13777 Fruitvale Avenue. Please advise the Chair if you will be absent from the next scheduled meeting In compliance with the Americans with Disabilities Act, if you are a disabled person and you need a disability - related modification or accommodation to participate in this meeting, please contact the City Clerk's Office at (408) 868 — 1269 or ctclerk @saratoga.ca.us. Requests must be made as early as possible and at least one full business day before the start of the meeting. Any recommendation made by the Heritage Preservation Commission may be appealed to the Planning Commission within ten (10) days of the date of the decision. The appeal shall be taken by filing with the Secretary of the Planning Commission a written notice and filing fee within ten (10) days of the date of the decision. Certificate of Posting of Agenda: I, Christopher Riordan, Senior Planner for the City of Saratoga, declare that the foregoing agenda for the meeting of the Heritage Preservation Commission of the City of Saratoga was posted at the office of the City of Saratoga, 13777 Fruitvale Ave., Saratoga, CA 95070 and was available for public review at that location. The agenda is also available on the City's website at www.saratoga.ca.us. Signed this 3rd day of July 2008, at Saratoga, California. d4ez�, 0�2� Christoph r Piordan Senior Planner City of Saratoga (408) 868 —1235 • City of Saratoga HERITAGE PRESERVATION COMMISSION AGENDA Date: Tuesday, July 8, 2008 8:30 a.m. Place: Warner Hutton House, 13777 Fruitvale Avenue Type: Regular Meeting — Please meet in the Planning Conference Room. 1. Routine Organization A. Roll Call B. Approval of minutes from June 10, 2008 meeting C. Posting of Agenda — Pursuant to Government Code Section 54954.2, the agenda was posted on July 3, 2008. D. Oral & Written Communication - Any member of the public may address the Commission about any matter not on the agenda for this meeting for up to three minutes. Commissioners may not comment on the matter but may choose to place the topic on a future agenda. E. Oral Communications — Historic Preservation Commission direction to Staff — Instruction to staff regarding actions on current Oral Communications. 2. Old Business A. Discuss National Registry & Saratoga Landmark Plaques B. Discuss Heritage Orchard Signage C. Discuss Historic Incentives D. Discuss Sign for McWilliams House 3. New Business A. None 4. Pending Items A. Historic Resources Inventory B. National Register Applications C. Update Heritage Ordinance D. Review additional content for Heritage Resources webpage E. Historic Preservation Data Base F. Review list of properties with structures 50 years and over in age 5. Adjournment Adjourn to 8:30 a.m. Tuesday, August 12 2008, Planning Conference Room, 13777 Fruitvale Avenue. Please advise the Chair if you will be absent from the next scheduled meeting In compliance with the Americans with Disabilities Act, if you are a disabled person and you need a disability - related modification or accommodation to participate in this meeting, please contact the City Clerk's Office at (408) 868 — 1269 or ctclerk @saratoga.ca.us. Requests must be made as early as possible and at least one full business day before the start of the meeting. Any recommendation made by the Heritage Preservation Commission may be appealed to the Planning Commission within ten (10) days of the date of the decision. The appeal shall be taken by filing with the Secretary of the Planning Commission a written notice and filing fee within ten (10) days of the date of the decision. Certificate of Posting of Agenda: I, Christopher Riordan, Senior Planner for the City of Saratoga, declare that the foregoing agenda for the meeting of the Heritage Preservation Commission of the City of Saratoga was posted at the office of the City of Saratoga, 13777 Fruitvale Ave., Saratoga, CA 95070 and was available for public review at that location. The agenda is also available on the City's website at www.saratoga.ca.us. Signed this 3rd day of July 2008, at Saratoga, California. i Christoph r Riordan Senior Planner ' City of Saratoga (408) 868 —1235 City of Saratoga HERITAGE PRESERVATION COMMISSION DRAFT MINUTES Date: Tuesday, June 10, 2008 8:30 a.m. Place: Warner Hutton House, 13777 Fruitvale Avenue Type: Regular Meeting — Please meet in the parking lot in front of the Warner Hutton House at 8:30 a.m. and Staff will provide transportation to the site visit under New Business and return to Warner Hutton House by approximately 9:15 a.m. C 1. Routine Organization A. Roll Call PRESENT- Commissioners Koepernik, McCarty, Sorden, Tai, Gomersall, Chair Kellond, and Vice Chair Marra ABSENT- None STAFF- Senior Planner Christopher Riordan, Assistant Planner Michael . Fossati GUESTS - Michael McKay, Jenny Taylor, Mahammad Estahbanaty B. Approval of minutes from May 13, 2008 meeting - Approved C. Posting of Agenda — Pursuant to Government Code Section 54954.2, the agenda was posted on June 5, 2008. D. Oral & Written Communication - Any member of the public may address the Commission about any matter not on the agenda for this meeting for up to three minutes. Commissioners may not comment on the matter but may choose to place the topic on a future agenda. Chair Kellond thanked Mr. Estahbanaty for submitting the historical report for 20731 Saint Charles Street and said that the Commission could not comment on the contents of the report since the discussion of such was not on this meeting's agenda. Commissioner Koepernik informed the Commission that Hakone Gardens was ready to submit for Historic Landmark status. He also stated that he had been contacted by Betty Peck and that she had told him that she was interested in pursuing Historic Landmark status for her own home. Ms Taylor stated that the neighbors were concerned about the new house to be constructed at 20731 Saint Charles Street and that the neighbors were interested in the historic nature of the existing house and that it was likely to be an archaeological site since Ohlone Indians were known to have been in the area. Vice Chair Marra said that it was one of the better report that he has reviewed. E. Oral Communications — Historic Preservation Commission direction to Staff — Instruction to staff regarding actions on current Oral Communications — None 2. Old Business A. Discuss National Registry & Saratoga Landmark Plaques — Not Discussed I B. Discuss Heritage Orchard Signage — Item Discussed. Chair Kellond informed the Commission that he had spoken to the Chair of the Saratoga Library Commission and that he was going to tomorrow's meeting so as to show them the design of the sign for the Heritage Orchard. C. Discuss Historic Incentives — Not Discussed D. Discuss Sign for McWilliams House — Not Discussed E. Discuss Orchard Pathway — Item Discussed. Chair Kellond said that Senior Engineer Iveta Harvancik did come to last month's HPC meeting to give a presentation on the orchard pathway that could affect Matt Ivancovich's work in the Orchard. Chair Kellond said that he had met with Matt Ivancovich, Senior Engineer Iveta Harvancik, and the trail construction contractor to discuss some key issues and some solutions to these issues which included discussing the trails location with respect to the creek and finding a solution that would not interfere with Matt Ivancovich's work area since his tractors would destroy any header board used for the trail. Commissioner Koepernik stated that his concern was that the City should have installed a "deer fence" and that the HPC had not been asked to review the fence. Vice Chair Marra questioned why the plaque had been placed in its location and why the HPC had not been notified prior to installation. Commissioner McCarty also questioned why the plaque location had been chosen. Chair Kellond said that he was concerned that the public would not know that the path was in the Orchard as there was no signage and that if there is going to be future signage that the HPC should be give the opportunity to review them. Vice Chair Marra said that the benches that had been discussed for the path would ' only be temporary an only would be in place for the opening festivities. Chair Kellond stated his general concern and frustration on how little the Commission had been involved in the pathway discussions and that the fencing had not been reviewed by the HPC. Commissioner Gomersall asked if the pathway was going to be moved away from the creek. Chair Kellond said that they are moving the trail in the in the locations that needed it and that a fence is being added for safety. Commissioner Koepernik said that the City was not keeping the HPC informed about the orchard pathway. F. Discuss Orchard Maintenance — Not Discussed 3. New Business A. 8:30 a.m. Site Visit - 13840 Saratoga Avenue — Review proposed demolition of the existing one -story single - family ranch style residence with the intent to construct a new one -story single - family residence. Prior to demolition, the staff and the applicant request a determination from the Historical Preservation Commission (HPC) on the historical significance of the existing residence. The determination to allow the demolition would be based on the recommendation from the HPC — Site visit completed. Item discussed. Vice Chair Marra stated that he felt that it was a shame that the house has been allowed to deteriorate since it appears to be generally well kept, he supports the design of the new house, and that the owner should try to maintain the existing cottage by the creek since its location is an historic aspect of the property. Commissioner Tai said that she supports the demo of the existing house and that she liked the design of the replacement home. Commissioner McCarty said that she agreed what had already been stated by her fellow Commissioners. Commissioner Koepernik said that he did not agree that termite damage should be a valid reason for a demolition as the house is not too old. Commissioner Gomersall said that she agreed with the statement that was made by Commissioner Koepernik. Motion by Commissioner Koepernik and seconded by Commissioner Tai to support the demolition of the existing house so as to orient the new house and to maintain the existing trees on the site. Carried on a 7 -0 vote. B. Joint Council Meeting with HPC and Historic Foundation — Discuss upcoming joint meeting with City Council scheduled for July 2, 2008. — Item Discussed. Commissioner Gomersall said that she would like to discuss signage with the City Council and the possibility of designating the area from the Saratoga Library to the Cemetery a historic district. Chair Kellond said that the focus of the joint meeting should be on attainable goals. These issues could include orchard signage, Oak Street as a Heritage Lane, highlight discussion of historical plaques and tell how they will be presented in the future, and possible historic incentives. 4. Pending Items A. Historic Resources Inventory B. National Register Applications C. Adopt a Tree Program for the Heritage Orchard D. Update Heritage Ordinance E. Review Oak Street as a Heritage Lane F. Review additional content for Heritage Resources webpage G. Historic Preservation Data Base H. Review list of properties with structures 50 years and over in age 5. Adjournment Adjourn to 8:30 a.m. Tuesday, July 8, 2008, Planning Conference Room, 13777 Fruitvale Avenue. In 0 S 13777 FRLiITVALE AVENUE c SARATOGA, CALIFORNIA 95070 o (408) 868 -1200 Incorporated OcWber'22, 1956 June 25, 2008 Dear Jim: COUNCIL biEAi13EHS Aileen Kao Kathleen Kwn_q Chuck Page Jill HuntSr Ann Wattonsmah I know that you are considering whether to accept an appointment to the Madronia Cemetery District Board of Trustees. Please accept my congratulations on being selected. I know from your work on the Saratoga Historical Foundation Board and your other contributions to the community that you would be a valuable member of the Cemetery District Board. Unfortunately, if you accept the appointment to the Cemetery District Board, State law would require the City Council to declare a vacancy in your seat on the Heritage Preservation Commission. As discussed in more detail in the attached letter from the City Attorney, Government Code section 1099 prohibits an individual from holding two incompatible public offices and provides that the first office held by the individual is forfeited upon accepting the second office. Because the City Code gives the Heritage Preservation Commission legal authority over matters that could affect the District, the offices of Heritage Preservation Commissioner and Trustee of the Madronia Cemetery District are subject. to this prohibition. For this reason, your seat on the Heritage Preservation Commission would be forfeited upon your acceptance of the position as Trustee to the District Board. I would prefer it if the .law allowed both. the City and the District to take advantage of the skills you bring to the community, but sadly this is not the case. Please let the City Clerk know if you decide to accept the new appointment so that the City can make aFrangements for selecting a replacement. Please understand that the Heritage Preservation Commission and the Planning Commission will be going through training to understand the true nature of the Heritage Preservation Commissions powers and duties. Sincerely, Ann Waltonsmith, Mayor City of Saratoga Printed 00 recycled o ,3oci i E. CLEMENT SHUTE, JR. - MARK 1. WEINBERGER (194&BOM FRAN M. LAYTON RACHEL B. HOOPER ELLEN J. GARBER TAMARA S. GALANTER ANDREW W. SCHWARTZ ELLISON FOLK RICHARD S. TAYLOR WILLIAM J. WHITE ROBERT S. PERLMUTTER OSA L. WOLFF MATTHEW D. ZINN CATHERINE C. ENGBERG AMY J. BRICKER GABRIEL M. B. ROSS DEBORAH L. KEETH WINTER KING KEVIN P. BUNDY *SENIOR COUNSEL Dave Anderson City Manager City of Saratoga 13777 Fruitvale Ave. Saratoga, CA 95070 SHUTE, MIHALY & WEINBERGER LLP ATTORNEYS AT LAW 396 HAYES STREET SAN FRANCISCO, CALIFORNIA 941 02 TELEPHONE: (41 5) 552 -7272 FACSIMILE: (4 1 5) 552 -58 1,5 WWW.SMWLAW.COM June 25, 2008 Re: lncomnatibilitY of pffices Dear Mr. Anderson: ELENA K. SAXONHOUSE AMANDA R. GARCIA JEANNETTE M. MACMILLAN ISAAC N. BOWERS LAUREL L. IMPETT, AICP CARMEN J. BORG. AICP URBAN PLANNERS You asked whether a person simultaneously may be a member of Saratoga's Heritage Preservation Commission and a member of the Board of Trustees of the Madronia Cemetery District. We have determined that the answer is no: under California law, these are incompatible offices. If a sitting Heritage Preservation Commissioner were io take the office of Cemetery District Trustee, he or she would automatically forfeit the Heritage Preservation Commission seat. The legal reasoning underlying this conclusion is described below. I• Statutory Background: Government Code Section 1099 Codifies the Common Law Doctrine Barring the Holding of Incompatible Offices. Under Government Code section 1099, " [a] public officer ... shall not simultaneously hold two public offices that are incompatible." Gov. Code § 1099(a). The doctrine barring the holding of incompatible offices had a long history under the common law before the 2005 adoption of section 1099, and the statutory provision explicitly "codifies the common law rule prohibiting an individual from holding Dave Anderson June 25, 2008 Page 2 incompatible public offices." Gov. Code § 1099(f). In adopting section 1099, the Legislature declared that "[i]t is intended that courts interpreting this act shall be guided by judicial and administrative precedent concerning incompatible public offices developed under the common law." Stats. 2005, ch. 254, § 2. Throughout this letter, we cite, and give equal weight to, precedent arising both before and after the adoption of section 1099. Cf.' 90 Ops. Cal. Atty. Gen 12 (2007) (taking same approach to interpreting section 1099). The general rule is that a person may simultaneously hold two different public offices only if the two are "not incompatible." 83 Ops. Cal. Atty. Gen. 153 (2000). The first question to be answered is whether the roles of Heritage Preservation Commissioner and Cemetery District Trustee are `public offices" within the meaning of this rule. See, e.g., 80 Ops. Cal. Atty. Gen. 74 (1997) ("The primary issue to be resolved is whether the positions in question are public offices.'). Because, as we demonstrate in Part II below, both are `public offices," the rule applies. In Part III below, we apply the rule and determine that these offices are "incompatible." Finally, in Part IV, we discuss the consequences of this incompatibility. . U. Both a Heritage Preservation Commissioner and a Trustee of the Madronia Cemetery District Hold Public Offices. A position is a "public office" subject to Government Code section 1099 if it has both of two attributes. First, it must have a "tenure ... which is not transient, occasional or incidental, but is of such a nature that the office itself is an entity in which incumbents succeed one another and which does not cease to exist with the termination of incumbency." Spreckels v. Graham (1924) 194 Cal. 516, 530 (internal quotation marks omitted). That is, a public office must have perpetual succession. Second, a public office must be delegated "some portion of the sovereign functions of government, either legislative, executive, or judicial." Id. To satisfy this requirement, the position must entail the authority to actually exercise some governmental function— members of bodies with "only advisory powers" do not hold `public offices" under this defmition, as they do not exercise any of the sovereign powers of the state. Gov. Code § 1099(d) ("This section shall not applyto a government body that has only advisory powers.') see also 83 Ops. Cal. Atty. Gen. 153 (determining that a person may hold multiple positions on advisory bodies without violating incompatible- offices doctrine). Dave Anderson June 25, 2008 Page 3 A. The Cemetery District Board Trustee. A Trustee of the Madronia Cemetery District is appointed by the Santa Clara County Board of Supervisors for a term of four years, in accordance with state law. Health & Safety Code § 9021; Health & Safety Code § 9024. The Board of Supervisors must fill any vacancy on the Board of Trustees. Health & Safety Code § 9024(c). The position of Trustee thus is possessed of perpetual succession and does not cease to exist with the loss of an incumbent. Health & Safety Code § 9043. It therefore meets the fast requirement of a public office. The Cemetery District was created under the Public Cemetery District Law. One of the statute's purposes is to "create and continue a broad statutory authority for a class of special districts that can own, improve, expand, and operate public cemeteries." Health & Safety Code § 9001(b). 'The Cemetery District Board of Trustees must establish policies for the operation of the district as well as provide for implementation of these policies by the employees of the district. Health and Safety Code § 9020. The Legislature delegated to the District extensive powers, including the ability to sue, acquire Property through eminent domain and enter into contracts. Health and Safety Code § 9041. The Board of Trustees therefore exercises a portion of the sovereign powers of the , state, and Trustee holds a public office. B. The Heritage Preservation Commissioner. The City Council appoints each Heritage Preservation Commissioner for a four -year term and must fill. for a term of four years (Saratoga Municipal Code §§ 13- 10.010; 13- 10.020), and must fill any vacancies (Saratoga Municipal Code § 13- 10.030). The position thus is possessed of perpetual succession and does not cease to exist with the loss of an incumbent, and therefore meets the first requirement of a public office. The question whether the Heritage Preservation Commission exercises part of the City's sovereign authority is somewhat more complicated. In certain circumstances, the Heritage Preservation Commission has direct authority over whether construction or other work may take place on a property. First, the Commission may propose a designation "on its own initiative." Saratoga Municipal Code § 13- 15.020(b). The filing of an application for landmark designation automatically imposes a moratorium on the issuance of City permits for "building, alteration, grading, demolition or tree removal" on the subject property. Saratoga Municipal Code § 13- 15.060(b). The moratorium is lifted only once the City Council takes action on the designation application. Id. Dave Anderson June 25, 2008 Page 4 Thus, by filing an application for landmark status, the Heritage preservation Commission, by its own action, could impose a moratorium on permits for a given Property- Moreover, during the moratorium period, the City may issue a permit if it is "approved by the Heritage Commission or the City Council." Id. The Heritage Preservation Commission thus may determine whether a building or other permit will issue. The control over building, grading, and other permits constitutes an exercise of part of the City's authority. See, e.g., First Presbyterian Church of Berkeley v. City of Berkeley 0 997) 59 Cal. App. 4th 1241, 1257 -58 (City has authority `under its police Power" to deny demolition permit based on historical or landmark status of building). In addition, the Saratoga Municipal Code requires a permit for any project that would "alter, demolish, remove, relocate or otherwise change" a designated historic landmark or any building or structure located in a heritage lane or historic district. Saratoga Municipal Code § 11-20 -010. This permit requirement is an aspect of the City's sovereign power. See First ,Presbyterian Church of Berkeley, 59 Cal. App. 4th at 1257 -58. The Heritage Preservation Commission makes a recommendation on whether to issue the permit. Saratoga Municipal Code § 13- 20.040. The use of the word "recommendation" suggests that the Commission is merely advisory. This "recommendation," however, is binding on the Planning Director. "If the Heritage . Commission recommends issuance of the permit requested in the application, or issuance of such permit subject to conditions, the Planning Director shall proceed to issue the Permit.... In the event the Heritage Commission recommends denial of the application, the Planning Director shall notify the applicant that the requested permit will not be granted." Saratoga Municipal Code § 13- 20.050 (emphasis added). Because the Planning Director must follow the Heritage Preservation Commission's recommendation, the Commission determines whether or not a permit will be issued, and thus exercises a Portion of the City's sovereign authority. The Municipal Code provides that the Heritage Preservation Commission's recommendation regarding a permit may be appealed to the Planning Commission (Saratoga Municipal Code § 13- 20.060(a)), and the Planning Commission's decision on that appeal may then be appealed to the City Council (Saratoga Municipal Code § 13- 20.060(b)). The availability of these appeals does not alter the fact that the Heritage Preservation Commission exercises a part of the City's sovereign authority. Most importantly, if no one files an appeal the recommendation stands and, as demonstrated above, constitutes an exercise of City authority. Furthermore, although planning commission decisions are generally appealable to city councils or boards of supervisors, "[t]here is no doubt that the position of a. . . planning commissioner is a public office," and that the incompatible- offices doctrine therefore applies to planning commissioners. Dave Anderson June 25, 2008 Page 5 64 Ops. Cal. Atty Gen 288 (1981); see also, e.g., 82 Ops. Cal. Atty. Gen 68 (1999) (city Planning commissioner and water district director hold incompatible offices); 66 Ops. Cal. Atty. Gen 293 (1983) (same as to city planning commissioner and county planning commissioner). Appealability is thus no bar to a position's holding the status of public office. We note that section 13- 10.050 of the Saratoga Municipal Code states, "the Heritage Commission shall be advisory only to the City Council, the Planning Commission and the agencies and departments of the City," and then lists a variety of strictly advisory functions of the Commission. This language, however, is not determinative. The question whether a Heritage Preservation Commissioner occupies a public office must be determined based on the substance of the Commission's authority and duties. As explained above, the Municipal Code delegates a piece of the City's power to the Commission. The introductory language stating that the Heritage Commission is advisory must yield to the actual substance of the Code, which makes a seat on the Commission a public office. Because the Heritage Preservation Commission is possessed of permanent succession and exercises a portion of the City's sovereign authority, its members are public officers subject to the incompatible - office doctrine. ' III. The Heritage Preservation Commission's Power Over Designated Historic Landmarks and Its Role in the Designation of Landmarks, In Combination With the Cemetery's Eligibility for Landmark Status, Make the Two Offices Incompatible. Because both a Heritage Preservation Commissioner and Trustee of the Madronia Cemetery District hold public offices, we turn to the question of whether these offices are incompatible. Offices are incompatible when any of the following is true: "(1) Either of the offices may audit, overrule, remove members of, dismiss employees of or exercise supervisory powers over the other office or body. (2) Based on the powers and jurisdiction of the offices, there is a possibility of a significant clash of duties or loyalties between the offices. (3) Public policy considerations make it improper for one person to hold both offices." Gov. Code § 1099(a). Only one of these three signs of incompatibility must be present to cause incompatibility between two offices. Gov. Code § 1099(a) ( "Offices are incompatible when any of the following circumstances are present ....') (emphasis added). Dave Anderson June 25, 2008 Page 6 It is clear that neither of the two offices in question here may audit, overrule, remove members of, dismiss employees of, or exercise supervisory powers over the other." We will therefore consider the application of the other two tests. There is clearly potential for a clash of duties or loyalties between the offices, because the Heritage Preservation Commission may be called upon to decide whether the Cemetery should be a designated historic landmark. Any property that meets two or more of the seven landmark criteria listed in the municipal code is historic landmark status. Saratoga Municipal Code § 13- 15.010. Madro ell Cemetery ia eligible for does not appear to be a designated historic landmark, but is listed on the City's Heritage Resource Inventory. See City of Saratoga, Heritage Resources Inventory (last updated March, 2000), at # 58 (attached as Exhibit 1).' In compiling the inventory, the Heritage Preservation Commission has determined that the Cemetery meets three of the seven criteria for designation as a historic landmark. It "exemplifies or reflects special elements of the cultural, social, economic, political, aesthetic, engineering or architectural history of the City, the County, the State or the nation;" • "is identified with persons or events significant in local, county, state or national history;" and "embodies or contributes to a unique natural setting or environment constituting a distinct area or district within the City having special character or special historical, architectural or aesthetic interest or value." Id. Thus, the Cemetery is eligible for designation as a historic landmark. The Heritage Preservation Commission is involved throughout the designation process. First, the Commission may initiative." Saratoga Municipal Code § 13- 15.020(b ).Second, lthea eri'tage1Preservation Commission prepares a study of any proposed designation (Saratoga Municipal Code § 13- 15.030) and submits to the City Council a written report including a recommendation on what action the Council should take regarding the proposed designation (Saratoga Municipal Code §-13-15-050). Each of these duties could bring the Commission into conflict with the Cemetery District. For example, the designation of 'The list is also available at www. Saratoga .ca.usANVENTORyo�o20LLST.htm. Dave Anderson June 25, 2008 Page 7 the cemetery as a historic landmark could be considered as being against the Cemetery District's interest, as such designation brings with it restrictions on the work that may be done on the property. At the same time, the Heritage Preservation C that designating the cemetery mmission may find best holding both offices could "face a clash of loyalties efrom �terests. Thus, a person time.- Atty. Gen. 68 (1999). The offices are thus incompatible. The 82 Op., The Attorney General has opined that offices in a similar relationship to each other are incompatible. For example, when asked whether a planning commissioner for the City of Victorville holds an office incompatible with that of a Director of the Victor Valley Water District, the Attorney General considered the situation in which the Plug Commission would 'We upon subdivision applications that could place increased demands on water supplies." Id. In that case, development city's best interest would place a burden on the water district, that would be in the loyalties" and making lear the incompatibility �' thus creating a "clash of g compatibility of the offices. Id. Similarly, in another Opinion, the Attorney General reasoned that a city councilman serving on a county Planning commission "could be faced with the problem of possibly opposing his own county commission's proposal." 63 Ops. Cal. Atty. Gen. 607 (1980). The positions were, therefore, found to be incompatible. Id. The present case fits this pattern closely: designating the cemetery as a landmark may be in the City's best interest, but such designation could burden the Board of Trustee's work of protecting the Cemetery District's interests. An officer holding both positions could, like city councilman just mentioned, find him- or herself protesting, on behalf of the Cemetery Distric t, a designation that her or she would favor as a member of the Heritage preservation Commission. Therefore these offices are incompatible. It is important to note that these potential conflicts render the offices incompatible even though there is no indication at this time that proceedings that could create a clash of loyalties are planned (i.e., there is no historic designation for the cemetery currently pending before the Commission). The law "comprehends as well as present clashes of duties and loyalties." 82 Ops. Cal. A Prospective, Morever, the conflict is not resolved because the there may never be an app68ation, nor because the Cemetery District mi t•not Pertinent to say that the conflict in duties oppose e never arise; pitpis enough "Neither is it in the regular operation of the statutory plan." Id ough to say that it may, "Incompatibility arises ... where the nature and duties of the two offices are such as to render it improper from considerations of public policy for one person to retain both." People ex. rel. B- C' Chapman v. Rapsey (1940) 16 Cal. 2d 636, 642; see also Gov. Dave Anderson June 25, 2008 Page 8 Code § 1099(a)(3). The doctrine barring the holding of incompatible office "rests on the rationale that public policy demands that an office holder discharge his duti es with undivided loyalty and that two offices cannot be held by one person where, from the potential antagonistic character of the offices, the public interest may suffer." Niegel v. Superior Court (1977) 72 Cal. App. 3d 373, 379. Allowing one person to sit on both bodies would undermine the public policies animating the missions of the Commission and the Cemetery District. For example, the Saratoga Municipal Code charges the Commission with "safeguard[ing] the heritage of the City by providing or the protection irreplaceable heritage resources representing significant elements of its hisprotection t Saratoga Municipal Code § 13- 05.010(a). At the same time, the Legislature authorized the creation of cemetery districts to meet communities' need "to own, improve, expand, and operate public cemeteries that provide respectful and cost - effective interments." Health & Safety Code § 9001(a)(4). A single officer could not work to advance both sets of goals as zealously as possible. It is, therefore, improper for one person to hold both offices. Moreover, as explained above, during the pendency of an application for a historic designation the Heritage Preservation Commission would have direct authority to lift the moratorium on the issuance of City permits for the cemetery. . the Cemetery District may want, for example, During this period, P grading permit. The Heritage Preservation Commission could decide to allow this permit to issue. Keeping the moratorium in place might, however, be in the City's best interest. In this situation a person serving on both the Heritage Preservation Commission and the Cemetery District's Board of Trustees would face a clash of loyalties. Although "only one significant clash of duties and loyalties is required to render the offices incompatible (80 Ops. Cal. Atty. Gen 74), we note that the potential for a clash of loyalties or duties would increase if the cemetery were to be designated as a historic landmark. As explained above, the Heritage Preservation Commission determines whether or not a landowner may "alter, demolish, remove, relocate or otherwise change" a property that is designated a historic landmark. Saratoga Municipal Code § 11-20 -010. This provision would give the Heritage Preservation Commission direct review over Cemetery District projects if the cemetery were so designated. This too presents a conflict of loyalties. The Cemetery District's best interests might be served by a project that would detract from the cemetery's historic values. The Heritage Preservation Commission could only serve the City's best interests by denying that project. Again, this demonstrates that there is not only a direct clash of loyalties between the offices, but that the sound public policy does not allow a single person to hold them simultaneously. Dave Anderson June 25, 2008 Page 9 IV. Recusal is Not a Remedy for Incompatibility. You have asked if the incompatibility between the two offices could resolved if a person holding both recused him or herself from any business that brought the two offices into conflict. This remedy is ineffective under the Government Code: "When two public offices are incompatible, a public officer shall be deemed to have forfeited the first office upon acceding to the second." Gov. Code § 1099(b). Thus, were a person to accept the second of two incompatible offices, her or she would, automatically, no longer hold the first office. The possibility of recusal would not arise: because the individual would not hold the first office, there would be no question of incompatibility. CONCLUSION Based on the foregoing reasoning, we conclude that the offices of Saratoga Heritage Preservation Commissioner and Trustee of the Madronia Cemetery District are incompatible, and that a sitting Commissioner who accepts the office of Trustee would automatically forfeit his or her office of Commissioner. Very truly yours, SHUTE, MIHALY & WEINBERGER LLP Richard Taylor Yl Gabriel City Attorney