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New Landmarks Law Pulled in Surprise Move

By Richard Brenneman
Friday July 28, 2006

In an abrupt reversal, the City Council voted unanimously Tuesday to table the revised Landmarks Preservation Ordinance (LPO) it had passed on first reading July 11. 

An ordinance must be passed on two separate readings before it can become law. 

“We’ll drop it this evening and see what happens with the initiative,” said Mayor Tom Bates, the driving force behind the tabled measure along with Councilmember Laurie Capitelli. 

The citizen-circulated initiative he cited is essentially the same as the city’s existing ordinance, with minor changes proponents say will ensure that it complies with more recent state laws governing building permits and landmarks. Berkeley residents will be voting on it Nov. 7. 

“The council decided not to hold the second reading pending the outcome of the initiative,” city Planning Manager Mark Rhoades told the Planning Commission Wednesday night. “The first reading stands. There’s no time limit as to when they can hold the second reading.” 

Rhoades said councilmembers had weighed placing their own proposal on the ballot as a competing measure, but rejected the idea because “if it failed they would be barred from trying anything similar for a year.” 

Passage of the preservationist-backed initiative would block the council from further action, because an initiative can only be overridden by passage of another initiative. 

David Stoloff, the mayor’s appointee to the Planning Commission, said his understanding was that the council skipped the second vote because of the threat of a referendum. 

Under that process, opponents of an ordinance who gather enough signatures after an ordinance has been passed can stall it until the electorate votes it up or down at the polls. Mayor Bates claimed on Tuesday that this would effectively block enforcement until the 2008 primary. 



The council’s action is sending initiative supporters and opponents back to their word processors. 

“Given the council’s action, we’ll have to rewrite our ballot statements,” said Roger Marquis, one of the initiative’s two principal sponsors. The draft statements they had submitted were focused on comparing the initiative with the now-withdrawn new ordinance. 

Late Wednesday afternoon, Deputy City Attorney Zac Cowan sent initiative supporters a new draft of the city attorney’s office analysis of the initiative, which also had to be revised since City Attorney Manuela Albuquerque had drafted a first version on the presumption that the Bates-Capitelli measure would be the current law by the time of the November election. The ballot question itself (the contents of the box that will appear on the ballot itself asking voters to answer yes or no) must also be rewritten by the city. 

Marquis said initiative backers will have their revised statements ready to submit by Monday or Tuesday at the latest, and the city council has set a meeting for 5 p.m. Tuesday to approve the city attorney’s revisions. 

“Given the errors, factual and otherwise, it hardly appears he’s even read the initiative,” said Marquis of Cowan’s latest draft. “We will be pointing out the errors.” 

That draft says that “If the City is forced to follow time lines in conflict with state processing time lines, it may face uncertain liability. If Proposition 90 passes, the City may face liability for damages if this ordinance is found to result in a diminution in property values.” 

The language is milder than an earlier version which warned that developers and property owners might sue for violations of their civil rights. 


Repeal respite 

The council was forced on July 18 to abandon its first vote on the ordinance, taken a week earlier, because the language they had approved was missing the Nov. 1 date they had intended for the law to go into effect. What would have been the second and final reading became a replay of the first instead, setting the stage for this week’s surprise.  

But that problem didn’t affect another critical zoning ordinance change. 

The council did approve on the 18th—with Worthington voting no and Spring abstaining—a second and final reading of an ordinance repealing Chapter 19.20 of the Berkeley Municipal Code (BMC). 

That section was one of two granting the Landmarks Preservation Commission (LPC) authority to review demolitions of commercial buildings over 40 years old. 

However, another code section—Chapter 22.12—was not repealed, and appears to give the LPC the ability to stop demolition of commercial buildings over 40 years old in certain commercial zones outside the downtown core. 

Section 22.12 was added as a result of the 1982 Neighborhood Commercial Preservation Ordinance initiative, passed by voters with the strong support of future Councilmember Linda Maio (then Linda Veneziano) according to Tom Hunt, another sponsor. Voter-passed initiatives cannot be repealed by city council action. 

Patti Dacey (recently ousted from the Landmarks Preservation Commission by Councilmember Darryl Moore and replaced by real estate broker/developer Miriam Ng) raised the issue of the 1982 initiative with the council on July 11, when she also pointed out the problem with the missing date. 

Dacey charged that provisions of the Bates/Capitelli ordinance which allowed for a “safe harbor” period violate both the letter and the spirit of the 1982 law. 

One issue still on the table is how the council’s repeal of BMC Chapter 19.20 affects the similar language in Chapter 22.12. Councilmember Kriss Worthington asked the city attorney’s office on July 11 to report on the apparent conflict, but their report wasn’t ready by the time of last Tuesday’s council meeting. 

Planning Director Dan Marks said that Deputy City Attorney Zac Cowan, who has drafted all versions of the LPO revisions, will reply to Worthington’s questions, “but a quick read suggests 22.12 is no longer in effect.” 

Asked about possible conflicts between the code sections, Cowan said, “We’ve got so many ordinances, but I have no opinion about the conflict. We’ll have to figure out what’s left of it, but it’s essentially redundant in my view.” 

Dacey also said that the city violated the California Environmental Quality Act (CEQA) by not subjecting the LPO rewrite to an Environmental Impact Review (EIR), a contention supported by Wendy Markle, president of the Berkeley Architectural Heritage Association. 

A July 18 letter from Markle warned of possible legal action if the council passed the revisions. 


Campaign unfolds 

Meanwhile, pollsters hired by initiative opponents continue calling Berkeley residents with questions designed not only to find the most effective arguments to use against the ordinance but also to find who’s supporting whom in the mayoral and city council races. 

One of those called was Neighborhood Commercial Preservation Initiative sponsor Tom Hunt. 

“I expect developers will be spending a lot of money,” said Hunt. “They are the only people who stand to gain” from the initiative’s defeat,” said Marquis. “For them, getting rid of the LPO is a good investment.” 

Rena Rickles, an Oakland attorney who often represents developers in the battles with the LPC, said she hopes the council will come back with an even stronger measure, one that eliminates the Structure of Merit, the landmark category that has been the particular bane of some of her clients.