Public Comment

Commentary: Analyzing the Revised Landmarks Ordinance

By John English
Tuesday July 18, 2006

On July 11 Berkeley’s City Council by a 6-2-1 vote took the first reading on repealing the Landmarks Preservation Ordinance and reenacting it with extensive changes. Presumably it will take the second reading on July 18. This article analyzes key differences between the “old LPO” (originally adopted in 1974 and amended later in the 1970s and 1980s) and the “revised LPO” (the version that at this moment the City Council seems poised to adopt). 

I should mention that for years I’ve been actively participating—through countless memos and otherwise—in the extremely tortuous process through which citizens and city agencies have been debating how, and whether, the LPO should be changed.  


Deadlines for landmarking where there’s a pending project 

Scrutiny of the LPO started back in 2000 when then-City Manager James Keene proposed a batch of changes touted mostly as removing alleged conflicts with the Permit Streamlining Act (PSA) and California Environmental Quality Act (CEQA) in situations where an application is filed for development on a property that hasn’t been landmarked. 

For such purported conflicts, the remedy now before the council involves what the staff calls “front-loading” and the imposition of deadlines for any initiation of the affected property. (“Initiation” is done by citizen or owner petition or by resolution of the Landmarks Preservation Commission (LPC) or other authorized city body and merely commences a formal process through which the LPC decides whether to actually landmark a property.) Imposing these deadlines for initiation represents a major change from the old LPO. 

The revised LPO says that upon filing of any application for a use permit, administrative use permit, variance, or staff-level design review—and without waiting for the application to be “complete”—notice of it must be placed on the agenda of the LPC’s first regular meeting that occurs at least 21 days after the filing. Either at that meeting or its next regular one, the LPC can initiate the property. Citizens can initiate it by petition only till 21 days after the second meeting. Then what the staff has called a “safe harbor” period begins during which initiating is prohibited. This ban lasts until the project application is withdrawn or denied, the project permit is issued but later ceases to have effect, or (if earlier) two years have gone by.  

Staff and other advocates of the deadlines have argued that CEQA requires determining a project’s level of environmental review (exempt vs. negative declaration vs. environmental impact report) within 30 days after the project application is complete; that potential impact on a historic resource is critical to this determination; and that if redetermining is needed because such an impact gets implied through a landmarking initiation late in the game, this could cause the city to violate the Permit Streamlining Act. But preservationists have responded that the PSA’s timelines only begin when relevant CEQA determinations are made and that CEQA is flexible enough to let those determinations be changed if necessary. They’ve also pointed out that because in practice some applications aren’t technically complete till many months after filing, the deadlines for initiating could actually fall well before the above-mentioned 30-day period within which the level of environmental review must be determined under CEQA. 

Staff have contended that even if neither the LPC nor anyone else has initiated a property by the deadline, people could still influence the CEQA determination by later bringing up new information showing potential impact on a historic resource. But people trying to do so could find the deck stacked against them. Preservationists have argued that initiation of landmarking is citizens’ best shot at influencing the level of environmental review.  


“Request for Determination” 

Another highly controversial feature of the revised LPO is its brand-new “Request for Determination” (RFD) procedure whereby an owner or agent thereof can ask the LPC to decide whether or not a property should be initiated. This apparently involves paying the city either for a city-selected qualified consultant to prepare a report or for such a consultant to review the owner or agent’s own report. The LPC must hold an extensively noticed public hearing at its first regular meeting that occurs at least 21 days after the complete RFD is submitted. The LPC can initiate the property either at that meeting or the next one. Citizens can initiate it only till 30 days after the second meeting (or 21 days in cases where a development project is pending). If nobody does, then initiation is banned for at least two years.  

Though some procedural details vary depending on whether or not there’s also a pending project, most RFDs will likely be submitted and processed in advance of any project application. It can also be assumed that most owners who invoke this procedure won’t want their properties to get landmarked. 

Advocates of the RFD concept have argued that it lets owners find out whether or not their properties are historic before they decide to develop and to pay architects to draw up plans. They’ve also claimed that the procedure will help channel development away from historic sites, or at least give citizens an advance warning of where development may occur. But preservationists have called the RFD highly insidious because it exploits the reality that people usually don’t rally to defend a historic resource unless there’s a tangible development proposal threatening it. They’ve argued that where there’s no pending project, the early deadline for initiating is quite unnecessary. And they fear that neighborhood residents and lay preservationists will be severely disadvantaged by the combination of that deadline and the potentially arduous task of rebutting conclusions of the paid consultants that the procedure emphasizes. 


Structures of merit — and historic integrity 

Although the LPO’s present “structure of merit” category has been under heavy attack during the last couple of years, it has survived largely intact. 

The most notable change is that the revised LPO specifically says that structures of merit must have historic “integrity.” It also requires this for its “landmarks” category. Advocates of requiring integrity have said that doing so is consistent with standard preservation practice and that the concept itself is flexible enough to accept buildings that have to a reasonable degree been altered. But some preservationists fear that an unnecessarily pristine intactness may come to be demanded. They’ve suggested that at least for structures of merit, “local” standards of integrity should suffice. While one sentence in the revised LPO seems to imply that such local standards may be desirable, establishing them would require a future ordinance amendment.  


Landmark demolitions and alterations  

The old LPO authorizes the LPC to “suspend” for certain periods a proposed demolition of a designated property but not to actually deny such demolition. In contrast the revised LPO omits the authority to suspend but firmly gives the LPC power to deny demolition.  

The revised LPO’s criteria for reviewing proposed demolitions or alterations of a designated property involve a reorganizing and restatement of the old LPO’s criteria. On balance, the result is somewhat more protective of historic resources. This April, preservationists were alarmed by a proposal that any demolition or alteration could be OK’d if “The proposed project is necessary to achieve an important public policy and the expected benefit of the project to the public substantially outweighs” the impact on the historic resource. But that sweeping recommendation was later withdrawn. There can still be some weighing against a project’s “public benefits” but only in the presumably rare cases where a property’s historic or similar significance “has been severely reduced due to physical change on it occurring since the property was designated.”  


Miscellaneous changes 

The revised LPO adds provisions about environmental review. Where the Zoning Adjustments Board (ZAB) has regulatory power over a project, the LPC may recommend to ZAB what the project’s level of environmental review should be—in which event ZAB must either accept the LPC’s recommendation or make written findings supporting its decision not to. 

The revised LPO makes numerous other, mostly technical or noncontroversial changes. One of them is prescribing qualifications for LPC members. Another is reducing from 50 to 25 the required number of names on a citizens’ petition to initiate landmarking.  


Environmental review of the LPO 

revision itself 

Contending that none of the proposed ordinance changes could have a significant environmental impact, the staff issued this spring a draft negative declaration on the proposed LPO revision. Though some of the then-proposed specifics have subsequently changed, staff claims that the negative declaration was broad enough to cover them. However, many preservationists and others strongly disagree. They believe that the LPO revision could indeed substantially impact historic resources—and therefore requires an environmental impact report.  


Long-time Berkeley resident John English is an ardent aficionado of planning and preservation.