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Landmark Law Change Closer By Richard Brenneman

Friday February 17, 2006

Preservationists made passionate pleas to preserve the city’s Landmarks Preservation Ordinance Tuesday night, but by the time the City Council meeting ended, they had little to cheer about. 

Mayor Tom Bates had made it clear that change was coming, and only two strong council voices rose in protest, Kriss Worthington and Dona Spring, while Betty Olds said she was willing to hear more from the public. 

“The structure of merit, it’s a problem. No two ways about it,” said Bates at the end of the meeting, referring to the secondary landmark designation. “This is the $64 question, no doubt about it. If something is going to be a landmark it should be a landmark.” 

People should know the rules, he said. 

“We now have a second prize that receives all the benefits of first prize, and I don’t think that’s appropriate,” the mayor said. 

The council was headed in a direction strongly urged by Oakland land use attorney Rena Rickles, who often represents developers before city commissions. 

“I am essentially here for one purpose—to support the removal of structure of merit except in the case of historic neighborhoods,” said Rickles. 

Under the current law, a structure of merit is a fully recognized historic building, which, while altered, still reflects fundamental elements of the original structure and is considered worthy of preservation. 

Spring and others say Berkeley’s flatlands, though without the majestic creations of the region and country’s name architects, nonetheless contain buildings of equal historic merit to the people of the city because they are the best surviving representatives of different times and peoples. 

The structure of merit category was created to recognize such buildings. 

Rickles echoed another point which several councilmembers had voiced during appeals before the council from developers who had found their projects blocked by structures of merit recently named by the Landmarks Preservation Commission (LPC). 

It’s an open secret, she said, that when people want to stop a neighbor from building an addition or a developer from doing something, they turn to the LPO and “hijack the process.” 

“No one has ever demonstrated why it’s unfair to developers to have the structure of merit designation,” said Spring. “Let’s not throw the baby out with the bathwater.” 

“I have a moral and legal obligation to stand up against the current threat to the goals of the Landmarks Preservation Ordinance,” said Worthington. “What’s before us is an insult to our intelligence ... basically a slap in the face to the landmarks commission and the Landmarks Preservation Ordinance and basically undermines the whole process.” 

Jesse Arreguin, an affordable housing advocate who serves on several city commission, said the existing law offered strong protections from the kinds of developers who, in the past, had demolished many of Berkeley’s older, low-rent buildings so they could build bigger, higher-rent buildings. 

“Landmarks advocates and housing advocates both have an interest in making sure Berkeley doesn’t become a bland suburb,” he told the council. 

Both sides were well prepared, and the preservationists brought out a seldom used weapon, humor. 

Sally Sachs likened developers to the irascible centenarian tycoon C. Montgomery Burns, nuclear power baron of television’s The Simpsons. 

“I fear what we would have is, ‘Smithers, I need to build my condo on that property’” where Jedediah Springfield, founder of the animated family’s hometown, had made history,” she said. 

Merilee Mitchell said that at a recent meeting on the new downtown plan, she’d seen a slide show about beautiful landmark cities, while the speakers had only spoken about height and density.  

What if politicians had to fit into profiles like that? she mused. 

“What about (Berkeley Planning Director) Dan Marks? He wouldn’t fit. He’s got height, but he’s not dense.” Surprised by the laughter she provoked, Mitchell said, “I should’ve been a comedian.” 

As Councilmember Dona Spring later noted, of 47 speakers who rose to address the council, 41 wanted to protect the city’s existing Landmarks Preservation Ordinance (LPO). 

But the other six—all with interests in development—found sympathetic ears on the council, starting with Mayor Bates. 

While the proposed changes to the existing ordinance were triggered by a call from the council for changes in the ordinance that would bring it into line with the state Permit Streamlining Act—which mandates timelines for approving development projects, Planning Director Marks acknowledged that the city had only gotten into one spot of legal trouble over the ordinance, which had to do with a city staff error and had nothing to do with a landmark. 

While no one from the Planning Commission appeared to speak for that body’s alternate draft of the LPO, the LPC was well represented by current and former members who spoke up in defense of the major provisions of the existing ordinance. 

Representatives of neighborhood associations from every council district appeared to argue in support of the ordinance, while the West Berkeley Business Alliance, (WBBA), a group formed by corporations (Bayer being the biggest), realtors, and professionals, said the mayor’s ideas didn’t go far enough. 

A key WBBA member is developer Dan Diebel, whose plans for a major housing-over-retail project at 700 University Ave. were placed on hold after the LPC designated the Celia’s Mexican Restaurant building on the project site as a structure of merit—a decision overturned by the City Council during a meeting when the majority of members complained that structure of merit designations were blocking projects they felt were worthwhile. 

Bates did say he was giving up on his previously floated idea of hiring a city historic preservation officer. 

Bates told councilmembers to formulate their ideas for the new ordinance, which would be discussed at next Tuesday’s council meeting. Bates said the council’s ideas would then go to city staff to prepare a proposed ordinance which would be available to the public—two months was a reasonable period, he said—followed by another public hearing. 

The LPC would have a chance to review the ordinance before it came back to the council for passage. 

If it follows Bates’ model, the measure will create a new review process that would give developers a chance for an initial city review through a new process called a request for determination, designed to make an authoritative finding about whether a property contains a potential landmark. 

Bates has also proposed allowing the structure of merit to have the legal protections now accorded under the California Environmental Quality Act only when found in a historic district. He has also floated the notion of a neighborhood preservation district. 

Under his proposal, future structures of merit outside districts would lose extensive protections, though structures already given the designation before the new ordinance takes effect would retain the protections. 

“Clearly we have to do something,” said Councilmember Linda Maio, though she, like her other colleagues, tried to assure the public that truly significant buildings would still be protected.