The LPO and CEQA
The Hidden Agenda
8 July 2005
In my 28 June commentary entitled Historical Preservation: It Takes a Community, I wrote that proposed changes to the Landmarks Preservation Ordinance (LPO), due to come before the City Council on 12 July, would (among other problems) remove state protections that encourage developers to work with the community. The state protections to which I referred are those provided by the California Environmental Quality Act (CEQA).
CEQA was passed in 1970, when environmentalism was the peoples enterpriselocal as well as global, urban as well as rural, cultural as well as natural. CEQA arose from the same impulse that a few years later created our Neighborhood Preservation Ordinance and the LPO. In those days, that was called progressive. But how things have changed! Berkeley claims to be a green and progressive. city, but any city determined to avoid environmental protection and public participation is neither.
Our planning department apparently views CEQA as a stupid law designed to create a divisive debate, and to throw roadblocks in a developers path, after a project design is in its final phases. Thus CEQA is to be avoided at all costs. The result is anger and bitterness on all sidesand bad projects. But this is only because our planning department does not use CEQA as intended.
Properly implemented, CEQA is a smart law designed to create early public input into development projects in order to minimize adverse environmental impacts. In so doing, community input and energy is channeled into constructive collaboration on what becomes a much better project.
CEQA says, the Lead Agency shall encourage the project proponent to incorporate environmental considerations into project conceptualization, design, and planning at the earliest feasible time (CEQA §15004b3). Early preparation is necessary for the legal validity of the process and for the usefulness of the documents. Early preparation enables agencies to make revisions in projects [...] before the agency has become so committed to a particular approach that it can make changes only with difficulty (CEQA Guidelines).
What does early mean? For public projects, CEQA says that environmental review should start before a site is even purchased! In addition, CEQA states clearly that environmental review shall occur concurrently with the development application process, not afterward.
In other words, environmental input from the community should not primarily respond to a project design; it should and must inform the projectand the earlier, the better. Yet in Berkeley, the project applicant and staff essentially create a project together and finish it well before the community has even heard about it. Then both applicant and staff hunker down to protect their substantial investment from outraged neighbors. Such is the result of violating the intent, spirit, and often even the letter of CEQA.
Developers private property rights do not override protection of the cultural and historical commons. If it comes to this contest, the community should win. But with the right approach, we can make such either-or decisions rare.
Used properly, CEQA provides one of lifes few real opportunities to have our cake and eat it too. This is because one of CEQAs most brilliant provisions is to require, in Environmental Impact Reports (EIRs), consideration of alternatives that accomplish the goals of the project while minimizing damage to the environment and surrounding community.
This is simply a way of forcing people to think creatively. It is nowhere more beneficial than in the case of historical resources, where usually the community and developer are able ultimately to reconcile the old with the new. And it is almost always true that the resulting development is more imaginative, more attractive, more contextual, more to-scale, and certainly better for the community than it otherwise would have been. And frequently it also turns out to be better for the developer. Its a win-win all around, and has worked many times in Berkeley.
Smart developers voluntarily pursue alternatives that respect the community, its values, and its resources, but for those who dont, CEQA provides two sticks that force the developer in the right direction. One is the aforementioned EIR requirement to look for alternatives. The other is the cost of doing an EIR, the mere threat of which often drives the developer to cooperation. In either case, however, lacking municipal policy incentives, the only incentive for the developer to work with the community in Berkeley is CEQA.
This is where the LPO comes in. Many of the proposed revisions to the LPO are an attempt to neutralize historical resources as a factor mandating environmental review under CEQA. How the proposed LPO revisions do this is too technical for this commentary, so lets look at the why, which is even more important to the typical Berkeleyan.
An acknowledged goal of our planning department is to seek exemption from CEQA review whenever possible. Staff is helped in that goal by state laws promoting infill development through more and more categorical exemptions to CEQA; such exemptions permit projects to be built without consideration of environmental impacts. But, because of the importance and irreplaceability of historical resources, a projects impact on them trumps all CEQA exemptions. If a historical resource is threatened, there must be environmental review.
If staff can find a ;egal way to neutralize historical resources under CEQA, not only can they much more easily demolish the pesky old buildings that stand in the way of development, they can legally avoid any environmental review for some new infill projectsno matter how large, ugly, dense, or damaging. In addition, and perhaps worse, they must approve projects much fasterwithin 60 days instead of the longer period required if environmental review is mandated.
Can we create good developments, especially large ones, within 60 days, especially in the absence of any incentive for the developer to interact with the neighborhood? No. It takes time for neighbors to intelligently address development issues, and effectively communicate their concerns to decision makers. Such a short fuse, especially for a naïve neighborhood taken by surprise, effectively prevents public input or objection, not just on historical issues but on any issue (traffic, parking, aesthetics, etc.). This is exactly what developers and city staff want.
It has become apparent to me that the attitude that neighbors are an obstacle, whose participation is to be avoided (along with CEQA, which mandates it), is the very heart of Berkeleys planning problems. The LPO has nothing to do with it.
Nonetheless, the rewriting of the LPO is now offered up as a solution to conflict resulting from lack of early and genuine community engagement in development projects. Why? Nothing in the LPO prevents any well-meaning applicant fromon his owntalking to the community and researching potential project impacts, including historical ones, at any time, with the goal of resolving, not belittling, community concerns. This could occur long before major investment in development plans. And staff could facilitate this with their considerable power and resources.
But instead, the solutions to be considered by the City Council on 12 July are directed not at developers who refuse to work with the community, and not at revamping entrenched planning policies and attitudes that, despite lip service to the contrary, discourage such cooperation. No, all the major changes being considered are aimed squarely at weakening the publics ability to preserve Berkeleys heritage, and at circumventing the communitys CEQA protections.
This is no less than an assault on Berkeleys interesting and lovely historical character, and all the citizens who cherish it. Why would those whom we have elected with our votes, and whose salaries we pay with our tax money, to protect us and our city, even consider damaging our urban environment in this way?
This article was originally published in the Berkeley Daily Planet.
Copyright © 20052006 BAHA. Text © 20052006 Sharon Hudson. All rights reserved.