May 11, 2005

Chair Harry Pollack and
Members of the Planning Commission
City of Berkeley
2118 Milvia Street
Berkeley, CA 94704

Re: CEQA Review of Proposed Amendments to City Ordinances

Dear Chair Pollack and Members of the Commission:

On behalf of the Berkeley Architectural Heritage Association, I have taken the opportunity to briefly review Planning Director Dan Marks’ recent response to my letter regarding the need for CEQA review of the proposed amendments to the Zoning Ordinance and Landmarks Preservation Ordinance (LPO), although I was not given the courtesy of a copy from his office. It remains clear that the City’s adoption of the LPO cannot lawfully be exempted from CEQA.

Essentially, Director Marks’ position is that, overall, the amended LPO will not reduce protections to the City’s historic resources and will therefore not result in adverse impacts. That is his professional opinion and it may be fairly held. But there is also contrary, conflicting substantial evidence in the record before you—defined by CEQA as facts and fact-based reasonable assumptions and expert opinions—by appointed members of the Landmarks Preservation Commission and other historic resource consultants and concerned citizens. I know that you heard from many of them at the public hearing two weeks ago.

A categorical exemption from CEQA is subject to the simple “fair argument” test: if there is a “fair argument” that the new LPO may reduce protections, no CEQA exemption is allowed. Thus, even if your professional staff presents a thoughtful, qualified opinion that no environmental impacts should occur, if there is substantial evidence that environmental impacts may indeed occur and that the new LPO may weaken some protections of the current LPO, the CEQA exemption must fail and CEQA review is triggered. An Initial Study must be prepared, followed by an appropriate environmental document.

Director Marks cannot deny that removal of Landmark Preservation Commission (LPC) review of resources of 40 years of age, and lengthening the applicable trigger time for review to 50 years, WILL remove some resources from the protections of the ordinance. Even one significant resource that is 41 years of age and not yet identified as historic, which will no longer receive the protections of the LPO, could result in a significant environmental impact if demolished or substantially altered without LPC oversight. The removal of LPC power to suspend demolition also has potential impacts that have not been explained away; not every suspension would violate permit streamlining, particularly suspensions of 180 days, and the fact that “the City” could still suspend demolitions does not change the fact that the City’s appointed historic preservation experts cannot. The deferral of LPC review of proposed demolitions until after CEQA review is complete may also have environmental impacts, since LPC will not have discretion to determine the level of CEQA review despite its members’ expertise in historic resource issues, and the environmental analysis may be inadequate as a basis for decision-making.

The import of structure-of-merit designations, landmarking procedures, and the scope of application of “integrity” criteria and other standards for approving and denying applications to alter or demolish various categories of historic structures also have engendered strong opinions by qualified historic resource professionals who believe that they may result in adverse impacts. Finally, the new process for Requests for Determination of historic status triggers CEQA all on its own, as it provides for discretionary City action with potentially significant environmental impacts in the event qualified properties are excluded from historic protections. A denied property may be precluded from protection for months or years even if new information indicates that it warrants historic designation.

The amendments to the LPO have potentially significant adverse impacts on historic resources, despite many laudable provisions. CEQA review is therefore required, and should greatly assist the Commission in making its far-reaching, long-term decisions about the future of Berkeley’s historic resources.

Thank you for your consideration. Please contact me with any questions.


Susan Brandt-Hawley

See additional letters and comments on the LPO revisions in
Preservation Discourse.