Whats wrong with the
City Staffs New LPO
16 May 2006
The Initial Study is inadequate for purposes of CEQA because the proposed Landmarks Preservation Ordinance (LPO) weakens the current ordinance in the following ways:
3.24.030 E. Historic Preservation Officer
- The new position of Historic Preservation Officer (HPO) would carry new authority to rule on discretionary permits for ordinary maintenance and repairs on landmark sites and initiated sites. These permits, if approved without Landmark Preservation Commission (LPC) review, could allow a structure to lose its integrity to the extent that it would no longer qualify for designation. The State Office of Historic Preservation (OHP) stated in its discussions with the city that this authority should remain with the LPC.
- LPC authority transferred to the new HPO. Under the new ordinance, demolition referrals in the present Municipal Code Chapter 19.2 are repealed, and the demolition provisions in Chapter 23C.08.050 C are revised to eliminate automatic referral of all non-residential buildings over 40 years to the LPC. 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 demolition of other than accessory structures with no LPC review. All that is required is that the HPO consult with the LPC chair, but it would appear that the HPO has the authority to make these decisions independently and the LPC chair may not override. These changes would appear to make it possible for demolition of accessory structures of any size on landmark sites to be accomplished with an Administrative Use Permit (AUP). No public hearing would be required unless the decision is appealed to the ZAB. Accessory buildings on landmark sites (e.g., carriage houses and studios) are often significant contributing structures.
3.24.110 Criteria for Designation
- Integrity. The addition of a requirement that a property meet both the Federal and State standards of integrity may allow demolition or alteration of many structures and sites that would now qualify as local landmarks or structures of merit but would be excluded under the new ordinance. The OHP suggested that local language be added to the definition of integrity, so that local standards that reflect local values would be included, and valuable local resources would not be eliminated from consideration. The new ordinance utterly fails to do this. Also, integrity is a requirement for any designation rather that simply another consideration for the LPC when reviewing an application for designation.
- Structures of Merit. Structure-of-merit criteria are narrowed and limited severely in both alternatives of the City staffs LPO compared to the current LPO. The current criterion that allows designation of properties that are worthy of preservation as part of a neighborhood, a block, or street frontage, or part of group of buildings which includes landmarks is eliminated in Option One. While included in Option Two, it would apply only in designated historic districts. Neither of these options would protect sites and areas important to neighborhoods.
3.24.140 Initiation for Designation
- Publics right to participate in decisions is severely curtailed. The new ordinance reduces the number of petition signatures required to initiate a structure from 50 to 25 but reduces the time of processing an application for designation from the current 180 days after the close of the public hearing to 90 days if an application for development is pending.
Timelines are shortened.
- The LPC must initiate within 30 days of receiving the application. If not initiated by th eLPC or other method, the public has 14 days to initiate.
- If initiated, the LPC has the remainder of the 90-day period to set and hold a public hearing and make a decision on designation on or before the fourth meeting after the application first appeared on the agenda.
This timeline would appear to be unworkable for citizens to gather the required signatures do a diligent job of researching the property, writing an application, and organizing the requisite neighborhood support to persuade the LPC to designate the property, which may take weeks, not days. In practice this timeline, if not significantly expanded, would appear to eliminate the public initiation process in Berkeley.
Approximately one third to one half of all designations since 1974 have been initiated by neighborhood petitions.
Initiation with no permit pending timeline for decision is changed from 180 days after the close of the public hearing to 180 days after the opening.
- Assessment of Historic Significance (AHS). The AHS is another name for the initiation process in the current ordinance, but it may be requested by the propertys owner or authorized agent, in which case the LPC must stop all other regular business and deal with the AHS.
When a property is sent to the LPC with a request for an AHS and there is no development permit pending, the timelines in the staff ordinance are similar to those in the current ordinance. When a project is refereed to the commission and a permit is pending, the AHS timelines are greatly speeded up. The total time between the first time the commission sees the application and the date the LPC must make its final decision whether to designate is 90 days.
During this time, the commission and the public are given only information that staff has requested from the owner in a form yet to be described. This would appear to require the applicant to submit only a minimal amount of information, not a landmark application. There is simply no sufficient time to research and write a formal landmark application.
If the commission does not make a final decision by the fourth meeting that the AHS appears on its agenda, the property is no longer subject to review by the LPC until the project is completed or the application for the project is denied or ceases to be in effect. This provision would appear to force the commission to make decisions without the needed information that is standard in any landmark application.
Suspension of Permit
- Provision is eliminated. Notwithstanding what we have been told, the suspension provision in the current ordinance does appear not to violate either CEQA or the Permit Streamlining Act (PSA). This provision gives the community time to investigate alternatives to demolition.
Article Three 3.24.220 Environmental Review
- While this provision does not represent a change in the current ordinance but rather an addition, it would appear to limit the LPC to a strictly advisory role in the CEQA process and would only allow the LPC to determine the level of review in cases when no other governmental body has discretionary jurisdiction over a project. It is unlikely that such a project would ever occur, so the provision is unusable and appears to be added for public relations purposes.
- The LPC is not allowed to comment officially during the CEQA process until after the environmental document is certified. This appears to eliminate any chance for the LPC to influence the level of environmental review.
3.24.240 I. Demolition of Designated Properties
- The provision to allow the LPC to deny demolition is not as it appears. This provision is conditional and can only be applied if the LPC makes a finding that the Environmental document is inadequate. It cleverly states that the LPC must have cited the grounds for finding the environmental document inadequate before it is certified. Since the LPC is not consulted or allowed to comment on the environmental document until after the certification, it is unclear how this provision would ever be implemented (see section 3.24.220,C).
3.24.240 F. 2. Contributing Structures in Historic Districts
- The implication of this section is that only contributing structures in historic districts are subject to review by the LPC whereas the current ordinance covers all structures in historic districts. This is a clear weakening of the protections in historic districts.
3.24.240 H.3. Subordinating historic preservation to other public policies and allowing demolition of historic resources on this basis.
- This language would appear to violate CEQA if a certified EIR has not been completed on the project. This type of weighing of historic preservation against other public policy is only appropriate after a full CEQA public process and alternatives have been studied. CEQA allows this trade off to occur only after all other alternatives have been exhausted and the only with a finding that that the adverse impacts are immitigable and makes a statement of overriding consideration.
There may be more to come, but this should give the reader of the Citys new ordinance some idea of the extent to which the present ordinance would be weakened. For these reasons the City should begin an EIR process to study alternatives to this project.