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The Berkeley City Council approved (6-3) Tuesday night an ordinance preservationists say will make landmarking historic sites and structures more difficult and ease the way for developers to demolish older buildings. 

Councilmembers Betty Olds, Kriss Worthington and Dona Spring voted to oppose the revised Landmarks Preservation Ordinance. 

In other council business, the Downtown Business Improvement District was renewed, but a vote on the controversial Solano Avenue BID was delayed a week. The council also approved mandatory reporting for laboratories working with nanoparticles. 

Landmarks ordinance 

About two dozen opponents of the revised landmarks ordinance attended the meeting, many of whom had fought the new law at the ballot box with Measure J, an unsuccessful attempt to extend the current Landmarks Preservation Ordinance with minor changes. 

Some said that they were infuriated when they saw that the ordinance posted on the city website on Thursday had been revised three times over the weekend in order to add a new clause saying that the ordinance is not “severable”, which means that if any part of it is struck down the whole law will be considered repealed. 

For preservation activist Laurie Bright, who says he intends to start gathering signatures for a referendum on the ordinance as soon as the second reading is approved Dec. 12, this change would likely mean that he will be forced to challenge the entire ordinance, rather than simply asking the voters to reject parts of it. 

“We’re discussing it with our lawyers,” Bright said on Thursday. 

While Mayor Tom Bates defended the addition of the non-severability clause as a minor addition, Councilmember Kriss Worthington attacked the manner in which the clause had been added, calling it “trickery” and arguing that voting on something the council and public had not seen until Monday violates council rules.  

Councilmember Betty Olds agreed, calling for the council to put off the vote until January. A vote on Olds’ motion was defeated 3-3-3, with councilmembers Laurie Capitelli, Gordon Wozniak and Mayor Tom Bates voting in opposition and councilmembers Linda Maio, Darryl Moore and Max Anderson abstaining. 

Wendy Markel, president of the Berkeley Architectural Heritage Association, addressed the council before its vote on the ordinance: “We’re seeing [the revised ordinance] this evening—we’ve never seen it before,” she said. “The ordinance requires public review.” 

Preservationist Anne Wagley (Daily Planet calendar editor) read a letter to the council written by attorney Susan Brandt-Hawley that said, because of the impacts the ordinance could have on the environment, it should undergo formal environmental review, saying that “… the proposed LPO will reduce protections to the city’s historical resources and therefore requires study in an EIR [environmental impact report]. 

Jesse Arreguin, member of the Rent Stabilization Board, added another point of view. Making it easy to demolish old houses will impact low-income renters, he said, adding that the ordinance “undermines the existing supply of affordable housing.” 

While no members of the public spoke in favor of the revised ordinance, the Berkeley Chamber of Commerce Political Action Committee spent about $100,000 to defeat Measure J, arguing that the old landmarks ordinance made it difficult for property owners to develop their properties. 

Solano BID 

Unhappy with the Solano Avenue Business Improvement District, 80 business owners registered protests with the city. The BID, which assesses businesses on the Berkeley part of the street, which traverses the Berkeley/Albany border, can be disbanded only by protest votes of businesses representing more that 50 percent of the assessment. 

By unanimous vote, the council decided to delay the decision until next week.  

The 80 protesting businesses represent $14,000 of the $34,000 assessment, not enough to overturn the BID, Economic Development Director Michael Caplan told the council. “It’s a serious challenge that should be taken into consideration,” he said. 

A number of business owners spoke at the public hearing to explain the nature of their protest. Several said their funds have been mismanaged and called for an audit; others complained there was too much emphasis of the Solano Avenue Stroll, which many business owners dislike.  

BID Executive Director Lisa Bullwinkel resigned from her post two weeks ago, reportedly citing personal reasons. 

“There’s been overspending by $15,000,” Greymuira Miller, owner of Feet of Dreams, told the council. “They failed to explain how this happened.”  

City Manager Phil Kamlarz said the city has the power to audit the BID.  

Councilmember Capitelli, a partner in Red Oak Realty, which has an office on Solano and pays the BID assessment, supports the BID. He told the council that one of his partners would like to raise the assessment.  

At a break in the meeting, some business owners questioned whether Capitelli has a conflict of interest and should not participate in council discussions and vote on the question, since his business is located on Solano. On Thursday, Capitelli said he was in discussions with the city attorney on the question and would recuse himself from voting on the BID if he were directed to do so. 

However, he said nothing prevents him from meeting with fellow business owners to address the question. At a meeting Wednesday night, he said the merchants talked about a number of possible solutions—approving the BID with a new work plan or even approving it with no budget, to allow time to review the effectiveness of the district. 

Nanoparticles 

The council voted unanimously to create a mandatory reporting system for businesses that work with nanoparticles in Berkeley. “It’s an important and potential problem,” said Mayor Tom Bates.  

Asked whether Lawrence Berkeley Labs would comply with the ordinance, lab spokesperson Ron Kolb sent the Daily Planet the following statement:  

“Berkeley Lab appreciates the concerns expressed by the Berkeley City Council about the possible risks and safety issues surrounding the research into, and production of, nanoparticles. At the Laboratory’s Molecular Foundry, a nanoscience facility, work on extremely small quantities of nanostructures is conducted under the strictest applicable federal and state guidelines and within the necessary constraints of our environment, health and safety protocols.  

“Berkeley Lab is not subject, as a federal institution, to the mandates of municipal government. The Laboratory has, however, voluntarily sent annual hazardous material reports to the City of Berkeley. We would expect in the future to include hazardous nanoscale materials in this report and describe the Molecular Foundry’s methods for safe handling, containing, and disposing of them.” 

University spokesperson Marie Felde was out of town and unavailable to comment Thursday on whether the university would honor the ordinance.