May 25, 2006

Robert Johnson, Chair
Landmarks Preservation Commission
2120 Milvia Street
Berkeley, California 94704     HAND DELIVERED

Re: Comments on the Proposed Mayor’s Revisions to the Landmarks Preservation Ordinance and Associated Zoning Ordinance Modifications and the Initial Study

Dear Robert Johnson and Members of the Landmarks Preservation Commission:

Thank you for holding this special meeting for comments and discussion of the Mayor’s proposed Revised Landmarks Preservation Ordinance and Associated Zoning Ordinance Modifications and the related Initial Study document being circulated in accordance with the California Environmental Quality Act (CEQA). I particularly regret that I and other members of the Berkeley Architectural Heritage Association (BAHA) are unable to attend due to the fact that the date for our Annual Meeting and Preservation Awards Presentation was set in advance for this evening. Nevertheless, BAHA remains concerned that the long standing provisions and protections found in Berkeley’s Landmarks Preservation Ordinance (LPO), Certified by the California State Office of Historic Preservation (SHPO), are weakened in the proposed Revised Ordinance.

For the past 30 years the LPO has effectively encouraged and entitled Berkeley’s citizens to participate directly in the preservation of the City’s wealth of historic resources. In plain language the LPO begins with “findings and purposes” that advance a broad understanding of historic preservation as being not only “essential to the health, safety and general welfare of the citizens of Berkeley,” but also as being beneficial to the economic vitality of the City, the enhancement of its property values, and the stabilization of its varied neighborhoods. The subsequent supporting regulations and provisions have maintained over time a strong preservation program consistent with State and Federal standards and recognized as essential in the City’s adopted General Plan.

While the Revised Ordinance retains the same statement of “findings and purposes,” its revised regulations and provisions are internally inconsistent. In fact,the Revised Ordinance significantly alters the LPO’s deliberate, time-honored practices that have well served the public interest. It is, therefore, BAHA’s belief that because of the substantial changes, the Initial Study is inadequate for purposes of CEQA. Please note that the Revised Ordinance weakens the LPO, including in, but not limited to, the following ways:

Creation of an Historic Preservation Officer (3.24.040 E)

The new position of Historic Preservation Officer (HPO) creates a new authority which could undermine the standing authority of the Landmarks Preservation Commission, established in the LPO to be responsive to all interested parties, including the affected public. Such an HPO would be entitled to rule on discretionary permits for ordinary maintenance and repairs on landmark sites and initiated sites. These permits if approved without Commission review could allow a structure to lose its integrity to the extent that it would no longer qualify for designation. SHPO stated in its discussions with the City that this authority should remain with the Commission. The LPO gives the Commission review.

Additional Transfer of Commission Authority to the New HPO (BMC Chapter 19.2, 23C.08.050)

Under the Revised Ordinance, demolition referrals in the present BMC Chapter 19.2 are repealed and the demolition provisions in Chapter 23C.08.050 C are revised to eliminate automatic referral of all nonresidential buildings over 40 years to the Commission. Instead Section 23B.030B BMC makes all demolition or alteration permits for buildings over 50 years old subject to a pre screening process that could allow demolitions of other than accessory structures with no commission review. All that would then be required is that the HPO consult with the Commission Chair but it would appear that the HPO has the authority to make these decisions independently and the Commission Chair may not override. These changes would appear to make it possible for demolition of accessory structures of any size on landmark properties to be demolished with an AUP — (no public hearing unless appealed to the ZAB) with no Commission review. Procedures for such an appeal are not clear. Contributing structures are often accessory buildings on landmarked properties, such as the carriage house in the rear of the McCreary-Greer House.

Integrity as a Criterion for Designation (3.24.110)

The addition of “integrity” as a prerequisite for all future designations, rather than being another consideration when reviewing an application for designation, and the limitation that the integrity criteria meet the restricted levels of the Federal and State standards potentially allows for the demolition or misguided alteration of many structures and sites that would now qualify under the LPO as local landmarks or structures of merit. SHPO did suggest that an integrity criteria be added to an updated LPO, but their suggestion was to include a local criteria so as to reflect local values and to protect valuable local resources. The Revised Ordinance utterly fails to do this.

Structures of Merit (2.24.112)

Structure of merit criteria is narrowed and limited severely in both Alternatives #1 and #2 eliminating the broad criteria in the LPO that supports designation of contributing historic resources “worthy of preservation as part of a neighborhood, a block or street frontage, or part of a group of buildings which includes landmarks.” Alternative #1 B.1 limits a potential structure of merit to being compatible with an already designated landmark or a group of buildings that includes a landmark and C. appears to narrow the qualification that no structure of merit will have an historic resource standing under Public Resources Code section 21084.1 if it has not previously been designated a structure of merit i.e. no CEQA protection. Alternative #2 specifically limits future structures of merit to only those properties within existing historic districts. Both Alternative #1 and #2 would significantly limit the potential of undesignated historic resources to be identified and/or be provided protections under CEQA and the LPO.

Public Right to Participate in Initiation Process Severely Curtailed, Time Lines Shortened (3.24.140)

Even though the process described in the Revised Ordinance is similar to the provisions in the LPO when no permit is pending, if an application is pending for a development project, the LPO allows the public to initiate up until a permit is approved, which under the provisions of the CEQA time lines could be up until a year. The Revised Ordinance reduces that time line for public initiation to 14 days or less.

Replacement of Public Initiation Process with Assessment of Historic Significance (AHS) Which in Practice Virtually Eliminates Public Participation in the Designation Process (3.24.130, 3.24.140)

To date there are no guidelines for what information has to be provided to the Commission under this new regulatory process. Furthermore, it is likely that the “professionals” providing the AHS information on behalf of an owner or project proponent would have a prejudicial perspective preempting the fair and open process of gathering of information during an initiation process for the public benefit. The initiation process itself has an educational value for the community-at-large, openly providing information, understanding, and discussion of the value/ or lack of value of a property. The Commission should be responsive first to the affected public and not have to make expedited decisions without proper information or open discussion. This may lead to unnecessary demolition or alterations of historic resources.

Provision of Suspension of Permit Applications Eliminated

The suspension provision in the LPO does appear to not violate either CEQA or the Permit Streamlining Act. Other cities often use it to stay demolitions. This provision gives the community time to investigate alternatives to demolition and may provide a avenue to protect an irreplaceable historic resource.

Contributing Structures in Historic Districts (3.24.240.F.2)

The implication of this section is that only contributing structures in historic districts are subject to review by the Commission whereas the LPO provides protection for all structures within the boundaries an historic districts. This is a clear weakening of the protections in historic districts.

Subordinating Historic Preservation to Other Public Policies and Allowing Demolitions of Historic Resources on this Basis (3.240.H.3)

This language would appear to violate CEQA unless a certified EIR has been completed on the project. Weighing of historic preservation against other public policies is only appropriate after a full public process and all environmentally superior alternatives have been studied. CEQA allows this trade off to occur only after all other alternatives have been deemed infeasible and only with a finding that that the adverse impacts are immitigable.

BAHA respectfully urges the Landmarks Preservation Commission to request that the Planning and Development Department reassess its summary of the impacts of the Revised Ordinance upon Berkeley’s many and varied historic resources. Retaining a strong preservation program is not only of importance to Berkeley’s citizens of today and tomorrow, but also to those who visit Berkeley from far and wide. Toward this end, any environmental review of the proposed significant changes to the LPO deserve a full EIR, in compliance with CEQA mandates.

Thank you for you dedicated and continuing service given to landmark preservation and thank you for your careful attention given to this critical matter.


Wendy Markel, President

cc: Tom Bates, Mayor
Dan Marks, Director, Planning and Development Department
Milford Wayne Donaldson, FAIA, California State Historic Preservation Officer
Anthony Veerkamp, Western Regional Director, National Trust for Historic Preservation
Cindy L. Heitzman, Executive Director, California Preservation Foundation
Susan Brandt-Hawley, Law Offices

Copyright © 2006 BAHA. All rights reserved.