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HomeMy WebLinkAbout2021-10-29 Historic Preservation PS - K LyonP&N P.ACHECO NEACH PC Main Office Three Park Plaza, Suite 120 Irvine, CA 92614 Office: 714.462.1700 Fax: 714.462.1785 October 29, 2021 VIA E-MAIL AND FEDEX Historic Site Preservation Board City of Palm Springs Palm Springs City Hall 3200 E Tahquitz Canyon Way Palm Springs California 92262 ken. lyonna almspringsca gov Riverside Office 3649 Mission Inn Avenue Second Floor Rotunda Riverside, CA 92501 Re: Historic Site Preservation Board Meeting on November 2 2021 Agenda New Business Item 4.A., "THE CITY OF PALM SPRINGS REQUESTING A CERTIFICATE OF APPROPRIATENESS FOR ALTERATIONS TO THE PALM SPRINGS CITY HALL A CLASS 1 (LANDMARK) HISTORIC SITE LOCATED AT 3200 EAST TAHQUITZ CANYON WAY (RSPB #33D / CASE 3 3377) " Dear Historic Site Preservation Board: This correspondence shall serve as an objection to the Historic Site Preservation Board's ("HSPB") intention to approve the above item on its agenda which would result in the removal of the statue erected of Mayor Frank Bogert. While in separate correspondence we provide the HSPB and City of Palm Springs ("City") with items of evidence we offer for your consideration, this correspondence includes, but is not limited to legal objections to the proposed action. It is clear that the City has not followed its own municipal code, nor followed state law for it's proposed action. P&N October 28, 2021 Page 2 City's Failure to Follow the Palm Springs Historic Preservation Code The Council has expressed an overwhelming desire to relocate the iconic statue of Mayor Bogert that has graced City Hall for decades. In fact, Mayor Bogert's statue, by act of the City Council, was erected as a part of Palm Springs City Hall on March 31, 1990. Clearly, the Council believed, and voted along those beliefs, that Mayor Bogert's statue reflected elements of the City's cultural, social, economic and political history. To argue otherwise is to ignore the obvious fact he was a celebrated Mayor of Palm Springs that presided over the City's tremendous growth and significance. We note additionally that Palm Springs City Hall was designated as a Class 1 Historic Site on October 2, 1996, by order of the City Council, thereby including Mayor Bogert's statue as an appurtenance of the property and its designation. Such a designation may include a structure, building or object on the site. Palm Springs Historic Preservation Code, Section 8.05.020. Given the timing of placement, subsequent designation and that the Bogert statue was obviously an object on the site, Mayor Bogert's statue is protected by the City's own municipal code. We note also that there was no carve out of the statue in the original Class 1 designation of City Hall. Given statutory construction, it is presumed under the law that the governing body knew they could make an exception for the statue from the designation and chose not to do so, thus tacitly including it within the designation. And as the staff report, accompanying the vote of the HSPB meeting set for November 2, 2021, points out the City Council in 2012 sought to end any confusion that the entire City Hall site, including objects on the site, such as the Mayor Bogert statue, was included in the historic site designation. The only exceptions to the designation was the landscaping, presumably so the City could change it at will without the requirement of HSPB approval. Even the parking lots were included, though it was discussed by the Council that they held little historic value. Clearly the City, through its elected officials, desired to extend the Historic Site preservation law protections to the entire city hall site, including the statue of Mayor Bogert, and found that the entire site regardless of the time of construction of various pieces, or structures, or objects had historic value. And the Council voted accordingly. Further, the demolition or alteration of Class 1 Historic Resources is not subject to speculation, but the law. The Historic Preservation Code requires that a Certificate of Appropriateness be issued prior to any permit being issued for such alteration or demolition. See Palm Springs Historic Preservation Code, Section 8.05.110A. Further, there are four narrowly defined criteria for the alteration or demolition of the statue, none of which have been followed. We note that the staff report takes pains to fit a "round peg in a square hole" to snake the removal of the statue palatable under the code. However, the proposed rationales do not fit. And here is why. P&N October 28, 2021 Page 3 The debate over the Mayor Bogert statue has continued for some time, well plus one year, in the City of Palm Springs. The media, print, radio and television have widely covered the debate and both public and private figures have made comments regarding the removal. Council members and city commission members have spoken loudly about why the statue needs to be relocated and cited extensively Section 14 removal from fifty year ago. None of these motivations and public statements from public officials with the City are included in the staff report. It is treated by staff as if the debate never existed. This is a false premise now being advanced because the legal criteria for removal does not match the reason espoused by the City leaders for such removal. A vote to remove the statue upon the fraudulent staff rationales is a vote to foist a falsehood on the public. The staff report mentions that a reason for removal is to "enhance the view from City Hall." Never has any part of the discussion surrounding the statue included any reference to enhancing the view. In fact, the statue discussion began when the City's Human Rights Commission produced an anonymous report decrying Mayor Bogert's service as Mayor of the City and the eminent domain actions taken decades before related to Section 14. No one was complaining about the "view". This canard is a transparent attempt to mask the real reason for removal. It is not surprising that citizens do not trust government, and its officials, when they continue to perpetrate falsehoods to defend their illicit actions. An additional disingenuous attempt to justify the removal, because the criteria does not fit, is the false claim that the date of the statue (1989) and its placement is somehow relevant to the date the initial buildings constituting City Hall were built. That is not a criterion in the municipal law of Palm Springs, the relative dates of parts of a designated historic site. Claiming its relevant doesn't make it so. Further, City Hall buildings were not all constructed at the same time. One part was constructed over a considerable length of time, 1952 through 1965. A second addition was constructed in 1972 and a third construction was added in 1984. That staff fails to recommend removing protection for these additional pieces of the site is telling, and transparent in revealing the real motives here. And the City through its various resolutions over time did not make any exception to the law based on when a part of the historic site was created. In fact, quite the opposite, the discussion by the City Council preceding its vote in March 2012 included a part of City Hall that at least one Council member stated was not historic and should not be included in the designation as a part of the historic site, the parking lots. The resolution included the lots anyway as part of the historic site. Clearly the Council sought to identify the site in its totality instead of separating the various pieces by the date of their inclusion. To do so now is to act contrary to the intent and determination of the City Council who designated the entire site on at least two separate occasions, initially and in 2012. Its not just the first building that was designated historic, it was the entire site including the statue of Mayor Bogert. F,ti °Y October 28, 2021 Page 4 Given that the dates are not deterininative or even part of the criteria, the further claim by staff is that the statue is not "historic". Again, deliberately ignoring information that is contrary to your position is a well -practiced part of government decision making unfortunately. To say that the statue of the two-time Mayor of Palm Springs who led a life dedicated to Palm Springs and who through will and determination brought prosperity and modernity to the community is absurd. It is well beyond "turning a blind eye", it is a vainglorious attempt to erase a life's work that survives long after Mayor Bogert left this world. His legacy cannot be ignored or concealed with the claim it was not historic. We submit an overwhelming amount of historic value to the Board about the historic contributions to Palm Springs, and its citizens, by Frank Bogert. Hence removal of the statue would impair the historic significance of the historic resource that is City Hall in which Mayor Bogert achieved some of his greatest work on behalf of Palm Springs. There should be no question that the Mayor Frank Bogert statue is an acclaimed piece of fine art created by an internationally respected artist, Raymundo Cobos Reyes. Mr. Reyes has exhibited his sculptures and paintings not only in his home country of Mexico, but all over the world. The nature of this fine art is historic, and its creation and placement at City Hall add immeasurably to the historic nature of the site designated as, historic. Removal of this fine art by one of Mexico's most, if not the most, acclaimed sculptor would impair the site substantially. Nor could it be given the requirements of findings that do not conform to the very clear reasons espoused by the Council for the statue's removal/alteration. Palm Springs Historic Preservation Code, Section 8.05.110E. Revisionist history is not a basis for altering or destroying historic resources under the law. It is evident that the City officials, in a rush to judgment, have ignored their own laws. If the City does not like its laws now, because they are inconvenient, then the City should change them, not contort them to suit some who's quest to destroy others appears to be a hobby. My clients encourage the Board to follow the law prior to any vote to remove the Mayor Frank Bogert statue. We encourage the application of integrity in the process, not slavish adherence to those who appointed you. City's Failure to Follow the California Environmental Quality Act ("CEQA") The City's past and continued designation of City Hall and its statue of Mayor Frank Bogert triggered not only the municipal code regarding historic sites within Palm Springs, it also triggered California law. Pursuant to CEQA, a project, or act, that causes a substantial adverse change in the significance of an historical resource is considered to be an act that significantly impacts the environment. California Public Resources Code §21084.1; §21060.5. A "substantial adverse October 28, 2021 Page 5 change" is defined as "...demolition, destruction, relocation, or alteration such that the significance of an historical resource would be impaired." California Public Resources Code §5020.1(q) (Emphasis added.). The City has declared City Hall and its statue of Mayor Frank Bogert an historical resource to be protected and preserved, as noted above. Local designations of properties recognized by a local government pursuant to a local ordinance or resolution, as here, are those historical resources that qualify under California Public Resources Code §21084.1 and are therefore protected by the law. California Public Resources Code §5020.1(k). Consequently, the City must prepare an environmental report (EIR) pursuant to various sections of CEQA. California Public Resources Code §§ 21080(d), 21082.2(d), 21100(a), 21151(a). Given that the City has done nothing to satisfy CEQA obligations, particularly the preparation and review of an EIR, it is error for the City to proceed to relocate, at the least, the Mayor Frank Bogert statue from City Hall. We encourage the City to follow state law prior to any vote to relocate, or alter, the Mayor Frank Bogert statue from Palm Springs City Hall. We acknowledge the City's current attempt to claim an exemption of CEQA, though such an exemption is not as simple as claimed in the staff report. And in this instance the exemption does not and should not apply. City's Failure to Follow and Respect California Civil Code 987 Which Protects Fine Art Given the extraordinary sculpture that is the statue, by such an incredible artist, the law has taken pains to protect such fine art. State law prohibits anyone, including municipalities, of intentionally committing "...any physical defacement, mutilation, alteration, or destruction of fine art." California Civil Code § 987(c)(1). Only the artist who created the fine art may authorize the any alteration of their work. Id. The purpose of the law, embodied in California Civil Code § 987(a), embraces ideals and principles of which the Palm Springs City Council should take note: "The Legislature hereby finds and declares that the physical alteration or destruction of fine art, which is an expression of the artist's personality, is detrimental to the artist's reputation, and artists therefore have an interest in protecting their works of fine art against any alteration or destruction; and that there is also a public interest in preserving the integrity of cultural and artistic creations." PgN October 28, 2021 Page 6 Failure to abide by California Civil Code § 987(a) subjects the offender to litigation which can include, injunctive relief, actual damages, attorney's fees and costs, and punitive damages. California Civil Code § 987(e). The law requires notification to the artist, or his heir, should the artist have passed. We attach here a declaration signed by the artist, and one signed by his son and heir, objecting to the removal of the statue and identifying its artistic and historic significance. We are not surprised that there is no mention of this law in the staff report as we understand no effort has been made to contact the artist. The declarations also include the fact that no contact has been made notifying them of the relocation and seeking their approval. Lastly, there are other legal impediments to the intended course of conduct by the City's Council. We reserve the right to assert all such claims and bring them to the attention of unbiased and fair review in a court of law. Very truly yours, Rod Pacheco cc: Jeff Ballinger Palm Springs City Attorney j eff.ballinger-c@palmspringsca.gov MalW a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19'. 201 21 22 23 24 25 26 27 28 DECLARATION OF CARLOS COBO MOSCARDO 1. I, Carlos Cobo Moscardo, declare that I have personal knowledge of the facts and information provided herein. 2. I am the son of Raymundo Cobo Reyes, a world-renowned sculptor and artist. 3. My father, Mr. Reyes, has created fine art, in sculptures and paintings, that have been sold and distributed throughout the world for many decades. He is considered one of Mexico's finest artists if not our country's finest sculptor. 4. I am aware that he created a work of fine art for the City of Palm Springs. 5. That work of fine art was a sculpture of former Mayor Frank Bogert and when completed was displayed in front of Palm Springs City Hall. 6. As his natural son I am Raymundo Cobos Reyes' heir, though he is still living. 7. I am aware that the sculpture of Mayor Bogert may be removed by Palm Springs City officials. 8. As the heir of my father, Raymundo Cobo Reyes, I strongly object to the removal of, and potential damage and harm to, the sculpture he created of Mayor Bogert. 9. I have never been notified by any official with the City of Palm Springs that they intend to remove the sculpture my father, Raymundo Cobo Reyes, created of Mayor Bogert from its current display in front of Palm Springs City Hall. I declare under the penalty of perjury that the foregoing is true and correct. Executed September , 2021 at , Mexico. Carlos Cobo Moscardo ROD PACHECO PACHECO & NEACH PC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18. 19 II, 20 21 22 23 24 25 26 27 28 DECLARATION OF RAYMUNDO COBO REYES 1. I, Raymundo Cobo Reyes, declare that I have personal knowledge of the facts and information provided herein. 2. I am a sculptor and painter by profession and have been for many decades dating back to the 1940s. 3. My sculptures and painting are exhibited throughout my home country of Mexico as well as the United States. 4. My artistic creations have sold throughout the world for tens of thousands of dollars. 5. In the late 1980s I was commissioned and hired to create apiece of fine art, a sculpture of Frank Bogert, the Mayor of Palm Springs California, United States of America. 6. I finished the sculpture of Mayor Frank Bogert in 1989 and it was dedicated shortly thereafter, in 1990, in front of the Palm Springs City Hall located in Palm Springs California. 7. The Mayor Bogert sculpture is considered fine art, an original work of art by my hands of a unique subject. 8. The Mayor Bogert sculpture created by me has been displayed in Palm Springs California since it was dedicated and has enhanced my reputation until recently. 9. Removal of the sculpture of Mayor Bogert from in front of Palm Springs City Hall would be very damaging to me and my reputation as an artist. 10.If the sculpture was removed there is also a likelihood that the statue could be substantially damaged given its size, construction and weight. 11. Removal of the sculpture I created of Mayor Bogert would result in a distortion, possible mutilation or modification of my work as an artist and would be prejudicial to my honor and reputation. 12.1 have never been notified by any official with the City of Palm Springs that they intend to remove the sculpture I created of Mayor Bogert from its current display in front of Palm Springs City Hall.