Berkeley Landmarks :: Staff issues worrisome new draft LPO

Staff issues worrisome new draft of landmarks amendments

Council action seems imminent.

John English

15 May 2006

Mayday! Literally on 1 May, the staff released a draft of amendments to the Landmarks Preservation Ordinance and related zoning provisions, and the Council has scheduled a hearing on it for 11 July. This draft reflects policy directions that were given by Council during its appallingly confusing 7 March discussion, where some proposals were advanced either through a last-minute memo the public hadn’t seen or through just a few almost mumbled words.

Now, there’s a little bit of good news but no shortage of bad news.

Environmental Review of the Amendments

Staff have finally dropped their earlier, outrageous contention that the amendments are totally exempt from CEQA. Instead they issued on 1 May an Initial Study and proposed Negative Declaration. The period for public comment on those will extend till 8 June.

But many observers have long felt that an EIR is needed instead of a Negative Declaration. Their case is strengthened because of some new proposals that the 1 May amendments draft contains.

New “Outweighing” Language

The draft’s arguably scariest features are in Section 3.24.240.H. There, a new paragraph 3 has been slipped in calling for the LPC to approve a landmark’s demolition or alteration if “The proposed project is necessary to achieve an important public policy and the expected benefit of the project to the public substantially outweighs the detriment to [historic resources]. . . ” This would revive a pet idea of the staff which they offered years ago to the LPC but which the LPC rejected. It wasn’t in the Planning Commission’s 2005 draft—nor was it ever proposed during subsequent public discussions at the Council!

That sweeping new provision is ready-made for big developers like Patrick Kennedy. They of course would tout their projects as yielding great public benefits like new housing and smart growth.

In a closely related change, proposed Section 3.24.240.H’s paragraph 2 has now been cunningly reworded to require comparable outweighing-type approvals where a landmark’s quality “is or has been significantly impaired.” This would readily lend itself to developers’ arguments that some prior alteration has reduced a landmark’s historic integrity.

Structures of Merit—and “Structures of Neighborhood Interest”

At the 7 March meeting the Council apparently told staff to include an alternative under which new structures of merit could be declared only within a designated historic district. The 1 May draft does present that as “Alternate #2.” However, the staff recommends against it—because Alternate #2 would make it harder to avoid doing an EIR. The Initial Study assumes that new structures of merit could in theory still be designated anywhere in Berkeley.

But the present designation criteria for structures of merit would get shortened and reworded in ways that—upon close reading—would likely mean that fewer buildings could qualify. And a specific, albeit rather flexibly couched, requirement for historic integrity would be added.

The Mayor proposed earlier that structure of merit designations would, in effect, be partly replaced by a new category called “historic points of interest.” The 1 May draft calls it “structures of neighborhood interest.” But such designations would be purely honorific, and wouldn’t give the LPC any regulatory power over the affected properties. The draft even tries to minimize their potential relevance for CEQA purposes.

Stealth Anti-Landmarking

Developers and their allies have long advocated a new procedure whereby an owner or agent thereof could ask the LPC to firmly determine whether or not a property is landmark-worthy, without going through the normal landmarking process—and in the absence of any actual development project application. This new process (which the LPC rejected) is included in the 1 May draft. Though its time constraints as earlier proposed have now been relaxed, the procedure would still exploit the reality that people generally don’t rise up to protect a historic building until they see a tangible current threat to it.

The Planning Commission’s draft called this procedure a “request for determination.” Now the 1 May draft calls it “assessment of historical significance.” But a rose (or a stinkweed?) by any other name. . .

Early Cutoff for Landmarking

In cases where there’s an actual pending project, the draft would impose tight deadlines for any landmarking. As soon as the project application is filed, the affected property would be agendized for the LPC’s first regular meeting at least 21 days away. Either at that regular meeting or the very next one, the LPC would have to decide whether to initiate landmarking of the property. If the LPC decided not to, then citizens would have only 14 days in which to initiate by petition. This proposed early cutoff has been and remains highly controversial.

One criticism involves the reality that, because of applicant delays in supplying information, many project applications may not become legally “complete” till several months after they’re submitted. And CEQA calls for a project’s level of environmental review (EIR or whatever) to be determined within 30 days after the project application is complete. Landmarking is often the people’s best shot at affecting that vital determination.

Workload Implications

The proposed early cutoff for landmarking would be part of a “frontloading” strategy under which very numerous properties affected by project applications would get referred to the LPC. Though early referral as such may well be important, the draft’s specific mechanisms for it are needlessly elaborate. For instance it appears that a special, widely noticed public hearing—rather than just a simple projects listing—would be required even regarding minor alterations to nondescript buildings.

The draft seems to utterly ignore past warnings about the serious workload implications. The LPC can’t be effective if it gets swamped with busywork.

Historic Preservation Officer

The draft would require the City Manager to appoint a “Historic Preservation Officer (HPO),” who would serve as the LPC’s secretary and who “shall have appropriate training in the tools and techniques of historic preservation.” While this may be fine in principle, some observers seriously fear the actual effect in light of City staff’s current orientation.

They’re also worried because the draft would empower the HPO to approve “ordinary maintenance and repairs” on landmarked properties. The LPC itself might rarely if ever see such proposed work unless somebody happened to file an appeal from the HPO’s decision.

Other Features

The 1 May draft does carry over, from earlier drafts, a significant number of good proposals. For example, the LPC would get power to literally deny the demolition of a landmark. Another welcome proposal is to reduce from 50 to 25 the required number of signatures for a landmarking petition.

Unfortunately the draft repeats many of its predecessors’ serious technical problems—and adds glaring new ones, such as provisions that obviously conflict with each other. How come?!

Copyright © 2006 BAHA. All rights reserved.