Berkeley Landmarks :: Revising Landmark Law

Revising landmark law

LPC recommendations are now
before the Planning Commission.

John English

Trinity Methodist Church: a potential landmark threatened with demolition (photo: Joseph Stubbs)

3 November 2004

At the vital heart of preservation in Berkeley is the Landmarks Preservation Ordinance. In essence, the LPO authorizes the Landmarks Preservation Commission (LPC) to:

  • Designate structures, sites, or areas as landmarks, structures of merit, or historic districts.

  • Exercise regulatory power over properties having such designation, or initiated therefor.

Under that regulatory power as currently written, the LPC may approve or deny proposed alterations or new construction—and suspend proposed demolitions for up to six months (for a structure of merit) or one year (for a landmark). Originally enacted in 1974, the LPO was meant to be a strong law and to be close to the people, encouraging involvement such as citizen-initiated landmark applications. To help keep it strong and accessible, BAHA members worked hard to influence the extensive set of LPO amendments and related Zoning Ordinance changes that the LPC recommended this summer.


In 2000, City staff advised the Council that the LPO and the Zoning Ordinance need amending for consistency with CEQA and the Permit Streamlining Act (PSA). CEQA sets deadlines for various environmental determinations, the date of which starts the clock ticking on a PSA-prescribed time period within which a city must approve or deny a development project. For instance, CEQA says that within 30 days after a project application is complete, the city must determine what the project’s level of environmental review will be. If during this 30-day period it’s determined that a project is exempt or requires only a simple Negative Declaration but much later the property is designated as a landmark, this may imply that an EIR is needed, and thus throw timelines way off. The staff presented to the Council an amendments draft that supposedly focused on problems like that, but many preservationists suspected that it also involved a wish to weaken the LPO.

Subsequently, the Council referred the staff draft to the LPC and to the Planning Commission, asking them to come back with recommendations. Thus began several years of hard work by the LPC, complicated by its heavy current caseload, changes in its own membership, and staff failure to secure an earmarked grant that would have greatly helped with the drafting. In May 2004, the LPC okayed a draft to forward for comment to the State Office of Historic Preservation. That office suggested some changes but basically concluded that the draft was appropriate. In July 2004, the LPC incorporated some of those suggestions and approved a final draft.

Berkeley Art Museum: our most significant
modern building might face the wrecker’s ball
(photo: ArtActiveOnline)

The LPC’s recommendations

The LPC’s package of recommendations seeks to adjust Berkeley’s preservation law to CEQA and PSA requirements with minimum loss, while adding valuable new features. With the state-imposed timelines in mind, a major theme is front-loading: the aim is that in cases where a development project is involved, determining whether the affected property is historic should be done as early as possible.

Accordingly, a vital part of the LPC’s proposal consists of Zoning Ordinance amendments to provide early screening of several classes of project applications. Those would generally include:

  • AUPs, Use Permits, and Variances for exterior alteration (if visible from a public right-of-way) or demolition of a non-residential or residential structure (except an accessory structure smaller than 300 square feet) that’s over 50 years old.

  • Any discretionary zoning review for exterior alteration or demolition of a structure or site that’s on the SHRI (State Historic Resources Inventory), on or officially found eligible for the National Register or California Register, or on the list of structures and sites established and maintained by the [LPC under the LPO].

  • Any discretionary zoning review involving exterior alteration or demolition of a structure or site that the LPC’s Secretary, in consultation with the LPC’s Chair, finds might reasonably satisfy the criteria for designation.

Before such applications are even filed, the applicant would need to post a conspicuous notice on the property, thus giving an early public warning about the project.

The John Woolley house (1876): a threatened historic
landmark (photo: Daniella Thompson, 2004)

The project application itself would normally have to request a determination by the [LPC] [...] as to whether the [affected] structure [...] qualifies for designation. It would have to contain the information required by the LPC. The project application would be placed on the agenda of the first LPC meeting occurring at least 21 days after its filing, and it couldn’t be considered complete till that meeting has occurred. The LPO would require City staff to post and extensively mail notice of the hearing, at least 14 days beforehand. At that particular meeting, the LPC would have to either initiate or determine not to initiate designation. (This decision as such couldn’t be appealed to the City Council.) And starting on the meeting date, there would be a period of only 10 working days during which citizens could initiate landmarking by means of a petition.

If the LPC or citizens do thus initiate consideration of landmarking, the LPC would have to decide whether or not to landmark the property at no later than its third regular monthly meeting after the project application is filed.

But if neither the LPC nor citizens so initiate the property—or if, after initiation, the LPC (or, on appeal, the Council) later decides not to designate it—the development project would then enjoy what the staff calls a safe harbor. That is, the LPC’s regulatory power would thereafter be inapplicable to the property unless and until the project application is denied (or a project permit, if granted, expires or otherwise ceases to have effect).

UC Theater: a shuttered landmark in its palmier days
(photo: BAHA archives)

For cases where the LPC would have regulatory power over a project, the ordinance would explicitly require the LPC to act on it within the PSA’s deadlines. If the Zoning Adjustments Board also has jurisdiction, the LPC would have to act on it before the ZAB’s last regular meeting within those deadlines.

For projects involving properties that have been designated, are on the SHRI, or are on or have been officially found eligible for the National Register or California Register, the LPC would be empowered to determine the project’s minimum level of environmental review within 30 days after the project application is considered complete (for example, the LPC might require an EIR). For other projects, it could within the same time period recommend the level of environmental review, and the ZAB or another relevant decision-makingbody would have to either accept the recommendation or state in writing why it declines to accept it.

The LPC would lose its authority to suspend proposed demolitions but instead would become empowered to deny demolitions outright.

Southern Pacific station: a landmark facing uncertain future
(photo: Daniella Thompson, 2004)

The LPO’s criteria for decisions whether to approve projects would be reorganized, with some changes. Power would be codified for the LPC to deny a project if it finds that the pertinent environmental document approved by another City agency or officer is inadequate (and had so asserted to the other agency or officer before that approval). A requirement would be added to determine whether a project meets the Secretary of the Interior’s Standards for the Treatment of Historic Properties. For projects not otherwise meeting the LPO’s criteria, alternative bases for approval would say essentially that a project may be approved under these conditions:
  • If there’s clear and convincing evidence that owing to particular physical conditions, disapproval would leave the owner with no reasonable economic use of the property considered as a whole.

  • If the property’s special quality has been “severely reduced due to physical change on it occurring since the property was designated” and that, accordingly, the public interest in keeping the property in its present state is significantly outweighed by the proposed project’s public benefits in relation to General Plan policies. But it’s likely that those hard tests could be met only in rare cases.

Where no development project is pending, landmarking still generally could be initiated at any time. In such cases, the LPC would have to decide on actual designation within 180 days after the relevant public hearing is opened. (The LPO now states that if a landmarking initiated by petition is denied, no similar petition for the same property may be submitted for two years afterward. Though this rule would remain, an exception would be inserted for cases where significant new information is presented.)

Whether or not a project is involved, the required number of names on a petition for landmark or structure-of-merit status would be reduced from 50 to 25. This, of course, would make it easier for citizens to initiate a landmark process quickly.

Archaeological value would be added as a basis for designation. Within the architectural merit wording, an item would be added, reading: [p]roperties that have retained, from their period of significance, sufficient integrity [...] to convey their particular architectural significance.

Anna Head School: demolition by neglect
(photo: Daniella Thompson, 2004)

Miscellaneous other changes would be made. Among them would be the following:

  • Requiring that at least four of the LPC’s members be (to the extent available in the community) persons having expertise in disciplines such as history, architecture, planning, folklore, or conservation or in related ones.

  • Explicitly authorizing the LPC to provide advice about properties of historic interest in general, rather than just designated ones.

  • Saying that any landmark application per se, and any primary evidence upon which the property owner intends to rely, shall be submitted to the LPC’s Secretary no later than noon on the day before packet-distribution day for the meeting at which the LPC decides whether to designate the property as a landmark.

  • Revising the LPO’s present broad unsafe and dangerous conditions exception, to specify that the danger to public health or safety must be imminent.

  • Generally allowing any person or entity aggrieved by a decision of the [LPC] to appeal to the City Council.

Francis K. Shattuck Building: a landmark reclaimed
(photo: Daniella Thompson, 2004)

What the Planning Commission is doing

Meanwhile, the Planning Commission had been simply awaiting the LPC’s recommendations. After receiving those, it preliminarily discussed them during several meetings, from July to early November. One concern expressed then was the increased workload from the new project-screening requirements.

As of this writing, the Planning Commission expects to hold a workshop in December about the LPC’s recommendations. Presumably it will hold at least one public hearing later on. According to City staff, the Planning Commission’s role is to make recommendations to the Council about relevant Zoning Ordinance amendments and to make any comments it chooses about the LPO revisions. It will likely do both. And some of the Planning Commission’s current members may be all too ready to slash away at the LPC’s draft.

So the outlook seems perilous. There is danger that we may lose not only the draft’s good new features but also some significant existing provisions. This makes it very important for BAHA members to attend the upcoming meetings and/or write the Planning Commission in order to show a strong support for the interests of preservation.

See also
Letters by attorney Susan Brandt-Hawley on behalf of BAHA to the Planning Commission re: proposed amendments to the Landmarks Preservation Ordinance:    27 April 2005    11 May 2005

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