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By a 6-3 vote, the Berkeley City Council passed the mayor’s controversial new Landmarks Preservation Ordinance (LPO) Tuesday, setting the stage for a November confrontation at the ballot box. 

Spurring the push for passage was City Attorney Manuela Albuquerque, who said she needed the council to pass the ordinance so that she could write a ballot analysis comparing the new ordinance with the rival measure voters will face in November. 

Passage came after the 5-3-1 defeat of a proposed compromise by Councilmember Kriss Worthington that would have eliminated the new law’s most controversial provision, the Request for Determination (RFD). 

“It’s not a good idea,” said Mayor Tom Bates of the Worthington amendment, and the council majority agreed. 

Voting for the amendment and against the ordinance in its latest draft were Worthington, Dona Spring and Betty Olds. Max Anderson abstained on the amendment vote but joined the majority in passing the ordinance. 

The council vote marks the end of what may be the penultimate battle in a political war that has been raging for more than six years. 

That struggle has pitted architectural and neighborhood preservationists against developers and, increasingly, city staff and the council. The law passed by the council Tuesday night contains one sop to preservationists, retaining the structure of merit designation for certain kinds of historic resources, but it gives developers their desideratum—the RFD and the two-year ban on designation it bestows. 

The pitch 

Three current members of the Landmarks Preservation Commission—the city panel charged with designating and preserving the city’s architectural legacy—appeared to testify for the law, flanked by city Planning and Development Director Dan Marks and Deputy City Attorney Zac Cowan. 

Marks traced the history of the latest version of the ordinance, drafted at the direction of the mayor and Councilmember Laurie Capitelli, and outlined its key features. 

Among its features, the new ordinance: 

• Creates two parallel review processes, landmarking and the RFD, with rules for applying each both when a development project is planned and when no project is planned; 

• Gives the LPC a new power, to deny demolitions, although its decision can be overturned by the city council. 

• Increases the age of non-residential buildings which must be automatically submitted to the LPC for demolition review from 40 years to 50. 

• Preserves the structure of merit designation under certain circumstances. 

• Requires the commission to apply a standard of architectural integrity for historic resources which is the same as that mandated by the state Office of Historic Preservation. 

The vote was preceded by comments from city staff, LPC commissioners, and members of the public, including some former commissioners.  

“The RFD track is a property owner-driven process,” said LPC member Steven Winkel, comparing the process to an environmental impact review, which developers hire consultants from an approved list to perform. 

Under the new RFD process, a property owner will hire a historical consultant from a list to be approved by the LPC in a process yet to be determined. The hired consultant will then conduct a review of the property’s architecture and history. After getting the consultant’s report, the LPC will have two meetings, or 60 days, to move to designate the structure. If the LPC fails to act, members of the public will have an additional 21 days to collect signatures and file a petition for designation. 

If no action is taken by the commission or the public, designation is thenceforth banned during a two-year “safe harbor.” 

The developer can file for a building permit the day after the deadline passes, so project opponents cannot use a landmark application to delay or prevent demolition and construction. 

“This is going to be a very good ordinance for the city and our commission,” said LPC member Carrie Olson, who abandoned her earlier opposition to the RFD because she said she had “come to recognize there was a will in the city and our commission for the RFD process.” 

History 

On Sept. 13, 1999, the LPC set up a subcommittee to “examine the Permit Streamlining Act (PSA) and its effect on how projects and applications are deemed complete.” That law sets limits on the time local government can take to process development applications. 

Former Mayor Shirley Dean, under whose tenure the two-commission LPO review was initiated, said during the public hearing that what the council had wanted then “was a clarification,” not a revision. She spoke against the new version as unnecessary. 

On July 27, 2000 the City Council directed the LPC and Planning Commission to revise the landmarks ordinance to ensure compliance with the PSA, and the LPC completed its first draft of a revised ordinance in mid-2002. 

It was the Planning Commission, regarded by preservationists as more developer-friendly, who added the proposal for the RFD, previously rejected by the LPC when it was proposed by the city attorney, to a draft sent to the city council on May 25, 2005. Their version also eliminated the structure of merit category, considered by developers as little more than a last-ditch means to obstruct their projects. 

Public response 

First up during the public testimony phase of the hearing was Roger Marquis, the preservationist co-sponsor of the ballot measure that has already qualified for the November election. 

Created in response to the mayor’s ordinance, that initiative basically preserves the existing ordinance while making the small changes supporters say will meet all PSA requirements. 

Volunteers who gathered signatures of the initiative “encountered almost no opposition,” Marquis said, and found strong support “for the ordinance that makes Berkeley one of the nicest places to live in our state.” 

“The RFD won’t fly,” said initiative co-sponsor Laurie Bright, president of the Council of Neighborhood Associations and a former LPC member.  

“People believe our mayor is obsessively preoccupied with development,” said Martha Nicoloff, who said the resulting projects “are not architecture but giant cash registers—ka-ching, ka-ching.” 

Berkeley Architectural Heritage board member (and Planet calendar editor) Anne Wagley read from a letter written at BAHA’s request by environmental attorney Susan Brandt-Hawley. 

Brandt-Hawley said “the proposed new LPO needlessly focuses on PSA issues in a manner that overshadows and defeats the very goals of its landmarks program.” 

She noted that it made changes substantial enough to require an environmental impact report because of its significant adverse effects on Berkeley’s historic resources. The initiative version would meet all PSA requirements, she wrote. 

“You are being WMD’d by your staff,” said former LPC Commissioner (and Planet Executive Editor) Becky O’Malley. She agreed with Brandt-Hawley that “there is no conflict between the PSA and the current Landmarks Preservation ordinance,” and said that the council was “being asked to invade” the LPO to “find non-existent” threats, an implicit comparison to the use of weapons of mass destruction as an excuse for invading Iraq. 

Another former LPC member, the recently-ousted Patti Dacey, described the RFD as the “Neighborhood Condo Pop-up Act,” and said it would “grease the skids for inappropriate development and take away one of the last tools to protect our neighborhoods.” 

Olson spoke again, this time reading a supporting letter from former commissioner Susan Cerny. Their commission colleague Lesley Emmington disagreed: “The mayor’s ordinance destroys something essential,” she said, “that is, that we respect each other in all the different neighborhoods” of the city. 

Rena Rickles, an Oakland attorney who often represents developers, said “too much was given away” in the latest version of the ordinance—especially the resurrected Structure of Merit. Rickles has contested LPC structure of merit designations initiated by neighbors after developers filed for building permits, though each was subsequently overturned by the City Council. 

Alan Tobey, a member of the board of Livable Berkeley, an infill development advocacy group, called the ordinance “a benefit for preservation and not an enemy of it.” 

Council decision 

The council battle lines were clear from the outset and didn’t change during a brief discussion despite the audience’s vocal opposition and applause for the three councilmembers who supported their opinion. 

Olds said she had great respect for Brandt-Hawley as an attorney and wanted more time to consider the arguments raised. She was concerned about the 21-day limit on citizen landmarking efforts if the LPC failed to act on a Request for Determination referral. 

“I could live with six weeks,” she said. 

Marks said the public actually had 81 days, since they could begin initiation at any time during the 60-day LPC review period. 

Though an ordinance supporter, Capitelli said he wondered if that wasn’t asking neighbors “to jump the gun by anticipating the LPC won’t initiate.” 

They have 21 days to get 25 signatures, Marks said. 

When Worthington said he agreed with Olds that the council needed more time to consider the measure, which it had just received, City Attorney Manuela Albuquerque made a new argument for immediate passage. 

“We need you to act,” she said, so her office could analyze the new law and compare it with the ballot initiative in order to prepare a statement for the November election voter’s guide. 

Worthington asked how she could do that when the law requires such a comparison to be made with the law that is in effect when the analysis is written. Council ordinances ordinarily don’t take effect until 30 days after passage, and the analysis has to be sent to the Registrar of Voters by July 25, well before the new law would take effect under the usual rules if the new ordinance is voted for final adoption at the council’s next meeting on the July 18. 

When Worthington suggested that she draft a comparison that included all three ordinances—the old, the new and the initiative—Albuquerque said that wasn’t possible.  

He then raised another possibility, that opponents would referend the ordinance—a process in which petitioners collect enough signatures to put the council’s ordinance on the ballot to give voters a chance to defeat it.  

If enough signatures are gathered and filed before an ordinance takes effect, it is then suspended until the next election. Because it’s too late for a referendum on the new LPO to qualify for the November ballot, that would mean in this case that the council would have to hold a special election next year or wait until the 2008 elections. 

Until then, the essential elements of the old law would remain in force unless it was replaced by voter approval of the November initiative. Worthington asked that the RFD provision be deleted in order to forestall a referendum, but his motion lost, and the council majority passed the new ordinance.