Public Comment

At a recent campaign appearance, mayoral candidate Zelda Bronstein said that the people of Berkeley should oppose “government by fiat” and instead encourage more “community-based decision-making.” That’s a great idea—and all who agree with it will vote against Measure J, the anti-democratic landmark preservation initiative. 

For the last six years the City Council has been managing a community-wide effort to update and improve our well-regarded Landmarks Preservation Ordinance (LPO). That effort, in typically democratic Berkeley style, has required dozens of commission meetings, workshops and public hearings; discussion at more than ten meetings of the City Council; hundreds of hours of expensive city staff time; and thousands of hours of citizen participation.  

The resulting revised ordinance was accepted on supermajority 7-2 votes by both the Landmarks Preservation Commission and the City Council (as a first reading) in July. It makes modest changes to the existing ordinance, only two of which remain controversial (see below). This “community-compromise” ordinance involved hard bargaining among passionate citizens groups—ably facilitated by Mayor Bates and LPC commissioner Carrie Olson—who all yielded some ground so as to meet in the middle. 

However, fearing the worst from a City Council they have deemed to be “pro-developer,” a small group of hyper-preservationists wrote and submitted an LPO initiative petition that has now become Measure J. Written by just two concerned citizens with some input from the Berkeley Architectural Heritage Association, the petition was never made available for community discussion. Precisely zero public meetings were held to ask for feedback or suggestions for improvement. If passed, Measure J would enact an outmoded version of the LPO that could only be changed by another ballot vote—the main aim of this special interest group who seem to disfavor change of any kind. 

Only the submission of the petition, and the related private threat of a referendum campaign to repeal the community-compromise version if enacted, has prevented the City Council from turning its own ordinance into law by approving the second reading. 

Given tight electoral timelines, the Measure J petition had to be submitted before the City Council acted on its own ordinance. The submitters’ attitude therefore had to be “whatever the City Council might pass, we’re against it.” That was especially unfortunate: helpful negotiations among councilmembers and concerned citizens continued right up to the time of the council vote. Those difficult discussions removed most of the objections and all of the potential loopholes that had made earlier drafts imperfect. Many of the perceived and purported “dangers” of the community-compromise ordinance were modified or simply eliminated in favor of a beneficial consensus result – but not in time to prevent the initiative petition being filed. 

As a result of this maneuvering, we citizens of Berkeley are now left with a choice between two proposed revisions of the Landmarks Preservation Ordinance. If Measure J fails, the Council will speedily enact the community-compromise version. Let’s therefore look at how the proposed revisions are similar, and how they are different. 

Measure J adds to the existing LPO just six revisions that had been suggested by the State Historic Preservation Office in 1990. Four of those are uncontroversial improvements to legal phrasing. Beyond that, Measure J proposes two functional improvements: 1) it gives the LPC for the first time the authority to deny proposed demolitions of designated historic resources; 2) it includes as part of the decision criteria for landmarks the state-mandated concept of “integrity” (basically the need for a proposed historic resource to tell its story in a way that’s still detectable). 

Both of these improvements, however, have also explicitly been included in the community-compromise ordinance, meaning that defeating Measure J will leave neither of its improvements on the table. In addition, both Measure J and the community-compromise version retain the secondary preservation category of “structure of merit.” Though Mayor Bates and others had proposed significantly weakening this category, the discussions led to no substantive changes. Measure J was originally touted as a means to “save structure of merit;” but that will now happen regardless of the ballot outcome.  

That leaves two main proposals in the community-consensus ordinance that significantly go beyond what Measure J envisions: 

1) Elimination of last-minute initiations by petition. The two versions differ to minor degrees in the amounts of time provided for normal LPC decision-making, though both allow enough time for careful consideration of properties and sufficient public input. The community-compromise version, however, would eliminate one controversial part of current law: the ability to initiate a property for landmarking up to the last minute in the use-permitting process, which has sometimes added another 9 months or more to the timeline. Instead, citizens are allowed to initiate by petition at any time up until 20 days after the LPC has reviewed a property but declined to initiate on its own. And the signature requirement on such petitions has been reduced from 50 to 25. 

2) Addition of a “request for determination” (RFD) procedure. This would allow any property owner to request a neutral evaluation of the property’s landmark qualifications, and would grant a two-year moratorium from revisiting the question if landmark status is not conveyed. Foreknowledge of historic status would help property owners consider how any future permit applications should be handled. 

Measure J proponents have called RFD “an open door for developers to destroy historic properties” by filing applications with inadequate information in order to gain illegitimate temporary exemptions. That might have been a possibility in the community draft as late as last spring, but the continuing discussion removed a couple of loopholes and ensured that any RFD will be accompanied by a detailed historical analysis from an objective LPC-approved consultant. 

As a summary, therefore, Measure J offers no improvements to our preservation capabilities that the community-compromise version won’t also deliver, while the community-compromise version adds some additional useful—but certainly not dangerous—new procedures to improve the fairness and efficiency of the law. And Measure J would lock the ordinance into a version that could be revised only via another expensive ballot vote. 

In the end, we have a clear choice— approve an attempt at hyper-preservationist government by fiat, or support an ordinance based on the hard work and consensus of the whole community. Please help us support the democratic process in Berkeley—and strengthen the preservationist cause—by voting no on Measure J. 

Alan Tobey, a retired technologist, has lived in Berkeley since 1970. He is a board member of Livable Berkeley, which opposes Measure J. 

Opinions expressed in Daily Planet commentary and letters to the editor are those of the authors and do not necessarily reflect the view of the Daily Planet or its staff.