Measure J Embodies Battles Over Berkeley’s Landmarks

By Richard Brenneman
Friday October 06, 2006

Berkeley voters will have the chance to settle the fate of Berkeley’s Landmarks Preservation Ordinance (LPO) when they vote on Measure J. 

Titled the Landmarks Preservation and Demolition Permit Application Ordinances, the package basically tweaks the city’s current landmarks laws and policies with minor fixes backers say will bring them into line with state legislation. 

Supporters say the law is needed to save structures that are critical for neighborhood identity and to block a wave of demolitions that could transform the character of neighborhoods. 


Rival ordinances 

Measure J was drafted in response to the effort spearheaded by Mayor Tom Bates to revise the city’s 1974 ordinance to make the law more friendly to developers, who claim the existing law causes needless delays and blocks some worthy projects. 

The ostensible reasons involved real or potential conflicts with the state Permit Streamlining Act (PSA), legislation which mandates timely processing of development applications. 

Just how serious the conflicts between the two laws were remains the subject of debate, but the city attorney’s office said changes were needed—while preservationists say there hasn’t been a single case where applications under the current law were delayed beyond the limits set by the PSA. 

A lengthy redrafting process involving both the Landmarks Preservation and Planning commissions resulted in prolonged and often heated debate, and in the end, the mayor and Councilmember Laurie Capitelli drafted their own version. 

That measure passed the City Council on first reading in July by a 6-2-1 vote, with Betty Olds and Kriss Worthington in opposition and Dona Spring abstaining. But the council withheld the second vote needed to enact the measure pending the outcome of the Measure J vote. 

Spring has since signed on as a Measure J supporter. 

During the July council meeting, nearly 60 residents spoke in opposition to the mayor’s ordinance, while supporters could be counted on the fingers of one hand—one being an Oakland attorney who frequently represents developers in their battles with the existing ordinance. 

In the end, a vote against Measure J could end up being a vote in support of the Bates/Capitelli proposal, which could be given a final vote on Nov. 14, the first council meeting after the election. 

Supporters contend that despite the criticisms of developers, the existing ordinance is far from the state’s most restrictive. 

While Berkeley’s ordinance has produced 272 designated landmarks and structures of merit (the two categories of historical designation under the LPO) and four historic districts, Measure J supporters note that Pasadena has 11 historic districts, one of which alone contains 800 homes. 


The alternative 

Preservationists say their biggest concern with the Bates/Capitelli ordinance is that it creates two parallel review processes, landmarking and the Request for Determination (RFD), along with rules for applying each, both when a development project is planned and when no project is planned. 

The RFD is a process that Measure J supporters contend would in effect serve as a stealth device to allow developers to destroy landmarks after first obtaining immunity from landmarking. 

In the RFD, a property owner hires a historical consultant from an LPC-vetted list, who then reviews the property’s architecture and history. After the report is filed, the LPC has 60 days to landmark the structure. If the LPC fails to act, the public has an additional 21 days to file a landmarking petition. 

If no action is taken, all landmarking efforts are banned during a two-year “safe harbor.” 

The developer can file for a building permit the day after the deadline expires and opponents are barred from filing a landmark application to delay or prevent demolition and construction. 

The key point preservationists raise is that an RFD without notice of the intended project is far less likely to stir a public response than a development proposal. 

Proponents of the mayor’s ordinance say the RFD provision protects developers from foes who are less interested in preserving buildings with architectural merit than with stopping development and increasing the city’s housing supply. 

Opponents counter with the contention that the cheapest and most effective way to create new affordable housing is through rehabilitation of existing structures. 


Measure J fans, foes 

The measure’s two authors, Laurie Bright and Roger Marquis, are both members of the Berkeley Architectural Heritage Association (BAHA), and Bright also serves as president of the city’s Council of Neighborhood Assocations. 

Other proponents include an unusual amalgam of allies who often find themselves divided on other issues. 

Former mayor Shirley Dean has joined with Councilmember Dona Spring in support of the measure, along with Zoning Adjustments Board member and Claremont-Elmwood Neighborhood Association President Dean Metzger, Downtown Area Plan Advisory Committee and former LPC member Patti Dacey, Berkeley NAACP Executive Secretary Elaine Green and Rent Stabilization Board member and Housing Advisory Commission Chair Jesse Arreguin.  

While Mayor Bates and spouse Assemblymember Loni Hancock are firm opponents, Zelda Bronstein, the mayor’s leading rival in the upcoming mayoral elections, supports the measure. 

Other Measure J opponents include Sally Woodbridge, an architectural historian who has found herself in frequent conflict with the BAHA because of her much narrower criteria for assigning landmark status. 

Others include Alan Tobey, a member of the board of the Livable Berkeley lobbying group, Planning Commissioner Harry Pollack, Landmarks Preservation Commission members Fran Packard and Burton Edwards, City Councilmember Linda Maio and former Councilmember Mim Hawley. 

Notably absent from any visible role in the fray are developers like Patrick Kennedy, Chris Hudson and Timothy Rempel who had waged long and costly battles against landmarking efforts. 

Supporters have organized for campaign spending purposes under the name of Landmark Preservation Ordinance 2006 Update PAC, and have reported raising a total of $13,007. 

But one key question remains: Who paid for the costly midsummer telephone poll that featured extensive questions about the landmarks ordinance, exploring what questions and issues might influence voters to vote against the measure? 

While no organizations or individuals have yet filed the city’s Form 410 as opponents of Measure J., a well-funded and negatively focused poll usually means deep pockets are waiting to try to influence the vote.