June 27, 2005

Landmarks Preservation Commission
c/o Secretary Gisele Sorensen
City of Berkeley
2120 Milvia Street
Berkeley CA 94704

Re: Proposed Amendments to Landmarks Preservation Ordinance Agenda June 27, 2005

Dear Members of the Commission:

On behalf of the Berkeley Architectural Heritage Association, I have reviewed the proposed amendments to the Zoning Ordinance and Landmarks Preservation Ordinance (LPO). I have previously submitted two letters that you may have seen, addressed to the Berkeley Planning Commission.

City staff has taken the position that the amended LPO will not reduce protections to the City’s historic resources and will therefore not result in adverse impacts. In fact and to the contrary there is a significant body of well-informed opinion that the new LPO, while it has many positive features, will in fact remove and reduce current protections to Berkeley’s historic resources.

To help decipher the complex changes between the current LPO, your LPC version, and the proposed Planning Commission version, an EIR should be prepared to clearly explain and contrast various versions of the ordinance and then provide appropriate suggestions for optimizing the efficiency and effectiveness of a new LPO. As an attorney I am well-accustomed to reviewing and deciphering detailed ordinances and legal documents, and yet have found the jumbled and complex versions of this Berkeley LPO particularly challenging to unravel. I suspect that others, including the public, may experience the same challenge. An EIR will sort out and clarify the pros and cons of various ordinance scenarios.

A few of the ways in which it appears to me that the proposed new LPO may reduce protections to historic resources, and thereby result in significant adverse environmental impacts, are the following:

  1. The LPC previously received referrals for the proposed demolition of any non-designated non-residential building of 40 years of age or older, and could initiate designation thereby suspending demolition while reviewing the project and the historicity of the resource in a public hearing process. Now, review of demolitions is expanded in some ways, but will occur only for resources of 50 years of age or more. There may well be architecturally or historically significant buildings that are less than 50 years of age; all of these lose protection under the new LPO.

  2. As you know, under the current LPO any neighborhood by petition, or the LPC by itself, may initiate historic designation at any time prior to the approval of a project by the Zoning Adjustments Board, thereby suspending demolition or project approval and triggering CEQA. Under the new Request for Designation (RFD) “safe harbor” procedure, if a resource is not designated within specific time limits after an RFD is submitted, it may be demolished without any review by the LPC or the public if the application for demolition is received within a year of the RFD determination. No referral of the demolition proposal to the LPC will occur and there will be no public hearing or review process or opportunity to initiate designation, even if information surfaces regarding the historicity of the building or its importance in the context of another historic resource. Since no discretionary approval will be required for such demolitions, CEQA review (which otherwise would allow review of important new information) will not be triggered despite potential harm to historic resources, and the LPC will lose all say in such matters.

  3. The complete removal of Structures of Merit as a recognized category of historic resources under CEQA will result in demolitions of structures that may be contextually important as contributing historic resources. BAHA will provide you with many examples of Structures of Merit that have been threatened with demolition but were saved under the operation of the current LPO and now are success stories enhancing the City's cultural building fabric. While the State Office of Historic Preservation (OHP) has questioned the continued use of the Structure of Merit designation, it did so by noting that the regulatory consideration, review, and protections were the same for such resources as for landmarks, so there was no need to have a two-tier designation system. The OHP never suggested that Structures of Merit do not qualify as historic resources. However, under the LPO revisions, the Structures of Merit are not incorporated into the category of protected historic resources under CEQA—they are removed from these protections entirely.

  4. The new LPO gives CEQA authority regarding the appropriate level of review for projects affecting historic resources to ZAB instead of the LPC. It seems that any new LPO revision should give the authority to the LPC, whose members are chosen BECAUSE they are more qualified to assess the impacts of such projects on historic resources.

In light of these and other problems, the LPO in removing significant existing protections to Berkeley's historic resources is, overall, less protective of those resources than is the current LPO. At this time, there is no reason to pick one version of the LPO over another; an objective EIR process will be of great benefit to sort out the best of all of the proposals with an eye to long-term impacts and benefits to the City and its resources.

The LPC is urged to recommend to the elected City Council that pause be taken to fully review all the recommended Zoning and LPO revisions in a public EIR process towards the goal of strengthening protection for Berkeley's historic resources. The proposed LPO amendments represent a momentous change in process that may have potentially significant environmental impacts on 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.