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LPC Approves Mayor’s Landmarks Law Changes

By Richard Brenneman
Tuesday July 04, 2006

Two conflicting revisions of the city’s Landmarks Preservation Ordinance (LPO) made significant advances last week—the first an ordinance from Mayor Tom Bates and the second an initiative for the November ballot. 

On a 6-2 vote late Thursday night, Berkeley’s Landmarks Preservation Commission (LPC) approved the mayor’s developer-backed ordinance, which would make major changes in the city’s existing law governing historic properties. 

The next day, the Alameda County Registrar of Voters declared that supporters of a rival, preservationist-backed measure had gathered enough signatures to qualify for the November ballot. 

That initiative seeks to preserve the existing law while making minor changes designed to bring it fully into line with state law. 

City Clerk Sherry Kelly said she is preparing a report on the LPO initiative, which will go to the City Council on July 18 or 25. 

“They can either adopt the initiative then or place it on the ballot,” she said. 

Only Lesley Emmington, the LPC’s most uncompromising preservationist, and former Chair Jill Korte voted against the Bates ordinance at Thursday’s LPO meeting. 

Korte had announced her vote early in the meeting, saying she could not vote on a draft she and her fellow commissioners had only received that day. 

The commission’s newest members, realtor and developer Miriam Ng and architect Burton Edwards, voted with the majority. 

Edwards had been appointed to fill the seat vacated by Councilmember Max Anderson’s ouster of Patti Dacey, a Maudelle Shirek appointee and another staunch preservationist who had repeatedly slammed the Bates proposal. Ng was appointed by Darryl Moore to fill a seat which had been vacant for months.  

The mayor’s measure will go to the City Council for a first hearing and vote July 11, with a solid majority likely to approve, if previous discussions are any guideline. 

That measure, created by Bates and City Councilmember Laurie Capitelli, includes a key provision critics say will make it easier for developers to level potential landmarks—the so-called Request for Determination (RFD.) 

That section allows developers and property owners to force the LPC to rule on whether or not a site qualifies as a landmark, based on a report prepared by a private consultant selected from a list approved by the commission. 

If the LPC passes on the property, developers are given a two-year “safe harbor” during which any attempt to landmark the property is barred. References to a five-year span in the previous draft had been removed by city staff, said Planning Director Dan Marks. 

Developers sought changes in the existing law, which had been used to delay their projects, sometimes fatally. 

Confronted with neighborhood-changing projects, activists have filed petitions to initiate the landmarking process for structures that would be demolished to make way for the developments. 

But in recent instances when the LPC has approved the landmarks, the decisions were overruled by a City Council that has grown increasingly impatient with the use of preservation law to block development. 

The particular bane of developers has been the structure of merit, a category that extends the protections to historic structures that been altered to an extent greater than those which are granted the “landmark” designation. Confusingly, both classes are landmarks in the sense of legal protections. 

The original draft of the Bates-Capitelli ordinance eliminated the category except with historic districts, which drew praise from developers and Rena Rickles, an Oakland attorney who frequently represents them before the city. 

Korte objected to the name given the process in the draft before the commission Thursday, and her colleagues agreed the older name was a more accurate description of the process. 

“I really don’t think an Assessment of Historic Significance is the outcome here,” she said. “It is really an opportunity for the LPC to review and initiate, and it is not an Assessment of Historic Significance.” 

The process sets up two roughly parallel tracks for looking at potentially historic properties—the initiation of the landmarks process and the RFD. 

But an RFD—unless acted on by the LPC—blocks the public from filing a landmark application for the two-year period, a move that would have block the public landmark application that stalled a condominium conversion project at 2901 Otis St. 

Developers had filed for a use permit to turn the Victorian cottage into a three-story popup with a condo on each floor. Neighbors who learned of the project were able to convince the LPC top declare the building a structure of merit. 

By the time the City Council overturned the designation, the developers had called off their project and later sold the building to a neighbor who wanted to preserve the existing structure. 

The house “was a cornerstone to its neighborhood,” Roger Marquis told the LPC Thursday. “I don’t think it would’ve been save under the revision you guys are looking at.” 

Marquis is one of the two principal sponsors of the LPC initiative voters will decide on in November. Also present Thursday was the measure’s second principal proponent, Laurie Bright. 

“We are seeing a full court press by developers,” Bright said. 

Most of the audience was composed of opponents of the mayor’s revisions. Alan Tobey of Livable Berkeley was the principal supporter. Also present were Calvin Fong, an aide to the mayor, and Deputy City Attorney Zac Cowan. 

City Planner Marks found himself repeatedly at loggerheads with Emmington, who frequently interposed objections and questions as he guided the commission through the latest draft. 

When it came time for a vote, Steven Winkel made the motion, with a second from Burton Edwards. Carrie Olson, who worked closely with the mayor in trying to find a compromise the LPC could live with, added an amendment directing the commission to take another look at the ordinance in a year and perform any necessary tweaking. 

“I’m going to vote no,” said Korte. “I just got the draft tonight, and if each of us is honest with ourselves, we have to admit that we really don’t know what we’re voting on.” 

The next move is up to the City Council, and, after them, the voters in November.