Editorial: The People Speak on Landmarks Law By BECKY O'MALLEY

Friday February 17, 2006

The Berkeley City Council’s special hearing on proposed revisions to the city’s Landmarks Preservation Ordinance was both impressive and discouraging. It was impressive because 40 articulate citizens showed up, many with statements written out in advance to take exactly three minutes, and many representing even larger numbers of signers including most of the city’s neighborhood organizations. All 40 and those they represented, probably adding up several thousand citizens, were in favor of maintaining the city’s current level of protection for historic resources. 

Only seven speakers spoke on behalf of loosening the city’s standards. Two of these were members of the Brodsky family, the owners of The Tile Shop, a long-standing Berkeley business. Their complaint was that they’d sought to tear down an old building on property they owned in order to build a warehouse, and that an adjacent neighbor had succeeded in getting the Landmark Preservation Commission to designate the building as a structure of merit under the LPO. Michael Brodsky, the family spokesperson, quoted moving language from the famous 1886 Yick Wo v. Hopkins case, where a land use law was overturned, which he claimed he uses in law school teaching. If that’s true, he must surely know that the reason the law was overturned in that case was because it was unequally applied to Chinese laundry operators and not to white ones. There’s no reason to claim racial discrimination against the Brodsky family or anyone else in the application of Berkeley’s historic resource preservation law. Brodsky’s impassioned quote in this context was disingenuous at best—a very distasteful spectacle to those of us who are familiar with the case. Furthermore, the Brodskys appealed the designation to the Berkeley City Council as the law provides, got it overturned as the law allows, and built their warehouse anyhow. So why are they grasping for the Yick Wo mantle of victims of injustice? Embarrassing. 

Of the remaining speakers, two more—business partners Rempel and Miranda—had similarly gotten a designation overturned by the City Council, and demolished one of the oldest houses in West Berkeley to build their condo complex. One speaker, Rena Rickles, is an Oakland lawyer with olden-times BCA juice, who usually fronts for developers these days and usually wins her Berkeley cases at the council level. Another one was a building industry professional, an architect, and one speaker was there to read a letter from the small pro-growth lobbying organization, Livable Berkeley, known as enthusiastic cheerleaders for the stacks of condos-to-be now being built all over town.  

No ordinary citizen, no one without a profit motive in the outcome, showed up to speak in favor of changing the law. It should therefore no longer be possible for councilmembers to say that they don’t know what the public wants, though some of them can be expected to hide behind ex V.P. Spiro T. Agnew’s discredited theory that there’s a “silent majority” out there that wants something else, but is afraid to speak up. It wasn’t true when Agnew claimed it was, and it still isn’t.  

The interesting question, of course, is not who was at the hearing, but who wasn’t there. When we see who turned out, we wonder why the council still appears (with the exception of Spring and Worthington) to be hell-bent on changing the ordinance. There are ample grounds for suspecting that certain proponents of change don’t need to come to public hearings because they have the ear of councilmembers behind the scenes. That’s what’s discouraging.  

And that’s why the Berkeley Daily Planet has filed a California Public Records Act Request asking to see the mayor’s and council members’ correspondence on this topic. We’re happy to learn this week that the California First Amendment Coalition has joined us in filing their own request, as has the Berkeley Architectural Heritage Association, so the public might actually have a chance of finding out who the real backers of gutting the law are. 

I myself spoke at the hearing as a private citizen, since I was a member of the Landmarks Preservation Commission for more than seven years and participated in the commission’s four-year attempt to revise the ordinance. The draft that finally got a majority vote from the commission represented a compromise, incorporating many changes which the city planning staff had lobbied hard for on behalf of their builder clients. I voted for it myself at the end, mostly because I was tired of the whole thing. As soon as we’d approved it, however, the backroom maneuvering to get even more drastic changes began again.  

Now I think our compromise was a mistake. My current opinion can be summed up by a business cliché which I learned when I had a software development company: If it’s not broke, don’t fix it. The current law works just fine for almost everything it’s supposed to do, and citizens are satisfied with it, if we believe the testimony at Tuesday’s public hearing. Why does it need any changes at all? 

There’s only one genuine problem with its language, and that can be fixed by adding one word. California’s Permit Streamlining Act guarantees development applicants a final decision within a certain time period which can then be appealed if desired. Berkeley’s LPO does not allow an applicant to get a final decision on an application to demolish a designated historic structure. All the Commission can do is suspend the demolition for a period of time. If the word “disapprove” is added to the ordinance, it would enable them to give the demolition applicant a clear, appealable “no” which would satisfy the state law’s final judgment requirement.  

The council, at its next meeting, if it has the guts, could enact that one simple little change, and the city would then be in full compliance. It would no longer be at risk of the dire challenges with which the city attorney’s office has been threatening the city for the last six years, which incidentally have never materialized. 

That done, there would be plenty of time, with no pressure, for full study of any and all further changes that many citizens are willing to endorse in the open public forum. Perhaps the backroom backers might be even be persuaded to come out of the closet. But if they don’t, case closed, no more changes. The city would save a lot of money and staff time now allocated for what increasingly looks like yet another expensive developer-driven boondoggle.