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The Landmarks Preservation Commission designated two cottages on the American Baptist Seminary of the West as “structures of merit” Tuesday, effectively entangling the city in a potential lawsuit. 

“We’re happy. They did the right thing,” said Benvenue Neighbors Association member David Baker, one of more than 10 neighbors to speak at the public hearing. 

The BNA has advocated for landmarking the two late 19th-century houses. The seminary has strenuously objected. 

David Levy, a lawyer for the prominent law firm Morrison & Foerster, which represents the seminary, called the LPC’s actions illegal and ill-advised. “What they’ve done is assign the city a potential lawsuit,” Levy said after the decision was made. 

He wasn’t threatening the city, Levy said, but did want it to know that this would not be the end of the case. He believed his clients would appeal any decision other than a rejection of the landmarking application.  

The public hearing was opened on March 4, but the LPC continued the discussion this month pending advice from the city attorney’s office on whether the city had jurisdiction to landmark the property. California General Code section 37361 - more commonly known by its legal name “AB133” - exempts noncommercial property owned by a religious institution from being landmarked without the institution’s consent. 

Assistant City Attorney Zach Cowan wrote the statement from the city attorney’s office, which was circulated March 21. After examining the legislative history of AB133 - the only court case challenging the law, city ordinances and the participation of parties involved in the landmark application - Cowan concluded, “The LPC therefore has no legal authority to designate either property under the LPO [Landmarks Preservation Ordinance].” 

The neighbors, however, felt that the city should not shy away from confronting state law that they believe has been misapplied. Their argument hinged on the definition of “noncommercial.” 

Baker told the LPC Tuesday night, “This is a case where a law that applied to poor church congregations was egregiously expanded.” 

UC Berkeley Extension school, he said, was going to be using the new seminary space, and paying a pretty fee for it. 

“I urge you not to allow a cash cow to be built,” he said. 

Another neighbor, Sharon Hudson, urged the LPC to take on AB133, because the definition of “noncommercial” in the law has never been clear, in her opinion. Even though the city attorney argued that the seminary’s property fulfilled the requirement for being “noncommercial” according to the California Supreme Court opinion in East Bay Asian Local Development Corp. v. State of California, she disagreed. Hudson said that the Supreme Court did not really define the word, but only speculated on its meaning in a footnote. 

She therefore urged the LPC and the city of Berkeley to challenge the law. “This will not be an isolated case,” she said. 

“If not us, then who? If not now, then when?” Hudson said. 

The neighbors also argued that the houses were worthy of landmark status because they provide context for other houses in the neighborhood. The two cottages, built by a janitor, help to show what working-class life was like on a block that a range of professionals called home, they said. 

Levy was the lone representative of the seminary at Monday’s meeting. Aran Kaufer, who works for the developers of the seminary project, informed the Daily Planet on Friday that his company and the seminary believed they had already followed all the rules and did not feel it was necessary to come to the LPC meeting. 

Pointing to the city attorney’s written statement, Kaufer said, “The directive to the LPC is unmistakable. We have nothing further to add and thus, the seminary is only sending one representative to Monday’s meeting, our attorney, David Levy.” 

At Monday’s meeting, Levy urged the LPC to follow the city attorney’s legal advice and reject the landmarking application because it was out of the commission’s jurisdiction.  

“The city attorney’s opinion is clear. The law is clear. The one published, decided, established case on this law is clear,” Levy said. Moreover, he added, the cottages were not worth landmarking. 

When the LPC asked him whether the seminary intended to use the space for commercial purposes, Levy pointed to the Supreme Court opinion which said that rental property could qualify as a religious institution’s noncommercial property. 

Commissioner Becky O’Malley urged her fellow commissioners to consider the city attorney’s opinion as just that – an opinion. 

“I tend to agree that this is an opportunity in the hands of the right litigator to test the law. It’s an important question for Berkeley since a great deal of Berkeley is owned by one institution or another,” said O’Malley. 

“Lots of other quasi-religious organizations are going to come out from under their rugs and we’ll be sorry we didn’t take a stand,” she said. 

Commissioner Jeffrey Eichenfield agreed with O’Malley, but added that he thought that the question was likely to be decided by a different body of city government. 

“I think we should vote the way we want on landmarks and then it will go to City Council,” he said. He added that he would like to see the cottages designated as structures of merit. 

Cowan’s response was that all city agencies have to comply with state law, so the LPC would have to take responsibility for its own actions. 

Commissioner Monica Rohrer, pointing to the arguments that the cottages were part of the historic fabric of a flagship neighborhood, suggested an alternative or an overlay to the proposed designation of a single house. “Why not an application for a historic district?” she asked. 

Other commissioners agreed and the LPC briefly considered continuing the public hearing. But the LPC then realized that the Permit Streamlining Act required action by the ZAB by April 22. 

After a five-minute break to pin down the language for their decision, the LPC decided to make two motions, both put forth by O’Malley. The first assumed that the LPC had the right to designate and designated the Thompson cottages as structures of merit under the landmarking ordinance. Councilmember Carrie Olson explained why the cottages were worth such a designation, calling out their contribution to social context and highlighting architectural features such as the eaves. 

Using language from the landmark application, she said the cottages were “oases of beauty and historical value.” 

This motion passed 5-0. Richard Dishnica, Burton Edwards and Rohrer abstained because they did not believe that the LPC had jurisdiction. Doug Morse was not present. 

The second motion assumed that the LPC might not have jurisdiction to designate the houses as structures of merit. O’Malley moved that, for purposes of the California Environmental Quality Act and other governmental reviews, the cottages should consider the cottages as historical resources for the reasons stated in the first motion. 

This second motion passed 5-0. This time, only Edwards and Rohrer abstained, because Dishnica had left. 

A third idea had been floated by Ann Meredith, an artist looking for affordable housing for other artists. She offered to move the historical houses onto a lot and renovate them. But neither the neighbors, the LPC nor Levy expressed interest in Meredith’s idea.