City may sue adobe's owners

Publication Date: Wednesday Feb 3, 1999

HISTORIC PRESERVATION: City may sue adobe's owners

Council authorizes attorney to look into Mills Act violations

The landmark Juana Briones house sits empty and still, dwarfed by expansive new luxury homes recently built around it.

The old adobe, built in the 1850s, is considered valuable to history because early California settler Juana Briones most likely lived there. Today, the structure is considered unsafe to inhabit, with a "Danger Keep Out" sign warning visitors away.

The Briones house has been at the center of a 14-month-long debate between its owners and the city of Palo Alto. The deliberations reached historic proportions Jan. 18, when the City Council voted unanimously to allow the city attorney's office to sue the owners for breach of contract under the Mills Act.

"No Mills Act contract has ever been terminated by either the owner or the city," said Gene Itogawa, the statewide coordinator of the Mills Act in the California Office of Historic Preservation.

The Briones house, on Old Adobe Road in the hills off Arastradero Road, is covered by a special contract authorized by the Mills Act. Passed by the state Legislature in 1976 to protect architecturally significant places and landmarks, the law provides property tax relief to owners of these sites who agree to preserve and maintain them.

The council's decision sets up a possible lawsuit by the city claiming that owners Jaim Nulman and Avelyn Welczer have failed to comply with the terms of their Mills Act agreement.

"I anticipate we will be discussing this matter with the owners before we consider litigation," said Bill Mayfield, the city attorney assigned to the case.

The city has not decided the focus of the potential suit, Mayfield said, and if the lawsuit succeeds in recovering back taxes, the city will have to work out the amount with the county.

The owners, who declined to comment, have not been contacted by the city about the council's action, said their attorney, Kent Mitchell.

"This thing is taking on a life of its own, and we still haven't heard from the city about what's going on," Mitchell said.

Preservationists and neighbors of the Briones house were happy to hear that the city decided to take action. Both groups have been concerned that, over the past year, broken windows and doors have not been repaired. The city contends that Nulman and Welczer have neglected the house, allowing it to slowly deteriorate.

"I applaud the (council's) decision," said Gail Woolley, former mayor of Palo Alto and a member of Palo Alto-Stanford Heritage, a preservation group. "I only wish it happened years ago. This is demolition by neglect, and unfortunately, litigation isn't necessarily going to save this."

"That house is a wonderful neighbor to have," said Old Adobe Road resident Meredith Phillips. "I would love to see it restored."

In October, Nulman and Welczer applied for a demolition permit. The city planning department denied the application on grounds that not only is the house protected by the Mills Act, it is a landmark residence and is covered by the city's interim historic preservation ordinance, which bars demolition.

The owners appealed the planning department's decision in December and have requested a public hearing before the city Historic Resources Board.

The appeal questions the legal grounds on which the demolition permit was denied. The owners say their Mills Act contract allows for demolition if rehabilitation is not structurally feasible or will impose an unreasonable economic burden on the owners.

Some preservationists blame the city for not being more vigilant of historic properties, especially the two with Mills Act contracts. In addition to the Briones house, the city has a Mills Act contract for the Squire House on University Avenue. Each house is valued at between $1 million and $4 million.

Periodic inspections of the homes are required by law as a way to make sure the owners are fulfilling their end of the deal. Since the Mills Act contract for the Briones property was signed in 1988, city inspectors have visited it at least twice: after the 1989 earthquake and upon the discovery of illegal modifications, Mayfield said.

But some people think the city has not done nearly enough. "The reason we have this problem is because there hasn't been a checks system," Woolley said.

Built in about 1850, the Juana Briones house is named for one of its early owners, the daughter of Spanish parents who came to Alta California in the late 18th century. The house is believed to be the oldest building in Palo Alto.

The state of California has declared the 1.53 acres that surround the house a historic site. It is also on Palo Alto's Register of Historic Homes.

Some historians question whether Juana Briones lived in the house, but no one doubts that it is on land that once formed part of the Briones ranch.

The owners dispute the home's historic significance in part because previous owners made an illegal addition to the house and because a city report by a former historic preservation architect for the city was unable to determine conclusively when the adobe portion was built, Mitchell said.

When the present owners bought the house in 1997, they accepted the Mills contract, which expires in January 2009.

"It's like a disclosure statement," said Roger Kohler, chairman of the Historic Resources Board. "If you buy the house, you need to follow the contract."

If the owner of a Mills Act home breaks the contract, the owner must pay back the total tax break received from the start of the contract.

The contract includes a provision that allows the property owner not to be held responsible for "replacement of the historic structures if damaged or destroyed through the 'Acts of God' such as flood, tornado, lightning or earthquake."

Nulman and Welczer claim that engineers they hired have determined that the house suffered extensive structural damage in the 1989 earthquake, Mitchell said. The same engineering report also says the only remedy is to demolish the structure.

Senior planner Virginia Warheit said a city architect's report on the property showed owner neglect was the probable cause of the damage.

"It wasn't conclusive, but it tended to show that the areas that had earthquake damage were the ones exposed to water and that the ones that weren't exposed were not damaged in the earthquake," Warheit said.

"We are not challenging the Mills Act or the regulations now in place in Palo Alto," Mitchell said. "We are questioning the denial of the application. We think our right for demolition is allowed for by the Mills Act."

--Jennifer Klein 

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