As the Berkeley Landmarks War heads for a second showdown at the ballot box, preservationists opened a second front in the courts Tuesday.
The newly formed Neighbor-0hood Preservation Organization (NPO) petitioned the Alameda County Superior Court to order the city to prepare an environmental impact report (EIR) on the recently passed law that’s already being challenged in a referendum.
“The referendum is an excellent partner for this process,” said Patti Dacey, NPO’s spokesperson and preservationist who serves on the Downtown Area Plan Advisory Committee (DAPAC).
Dacey had served on the city’s Landmarks Preservation Commission until she was removed last year by Council-member Max Anderson, a supporter of the ordinance targeted by the NPO legal action.
At issue is the Landmarks Preservation Ordinance passed by the City Council in December. Passage triggered a referendum drive, which resulted in the collection of enough signatures to block enforcement when the law was scheduled to go into effect Jan. 12.
The Alameda County Registrar of Voters has until Feb. 11 to verify the signatures, and if at least 4,092 of the 5,908 submitted belong to registered Berkeley voters, then the law is stayed until an up or down vote in the next city-wide general or special election.
The petition filed Tuesday by Sonoma County attorney Susan Brandt-Hawley asks the court to issue a writ of mandate overturning the council’s adoption of the LPO submitted by Mayor Tom Bates and Councilmember Laurie Capitelli until the city can prepare an EIR that considers the new law’s impacts on the city’s historic buildings and offers alternative proposals and mitigations for the law’s impacts.
At the July 11 meeting where councilmembers approved the first reading of an earlier version of the LPO, they also adopted a Negative Declaration on the ordinance, a statement prepared under the California Environmental Quality Act (CEQA) which contains a key finding that the project “could not have a significant effect on the environment.”
The accompanying environmental initial study (EIS) included the specific finding that “there is no evidence that” the revised ordinance and accompanying zoning changes “would have a significant adverse effect on the City’s ability to protect historic or cultural resources.”
City Attorney Manuela Albuquerque said the petition failed a crucial legal test because it wasn’t filed within 30 days of the EIS adoption.
“I advised the council when it adopted the ordinance that any suit would be untimely since it should’ve been filed months ago when the CEQA determination was made,” Albuquerque said. “I have not changed my opinion.”
Before the vote, Anne Wagley, who is the Daily Planet Arts and Calendar Editor, read out a letter from Brandt-Hawley declaring that “the proposed new LPO needlessly focuses on PSA (state Permit Streamlining ACT) issues in a manner that overshadows and defeats the very goals of its landmarks program.”
Brandt-Hawley also raised the specter of a lawsuit should the council adopt the ordinance at that meeting.
Dacey said Wagley is one of the core NPO activists along with LPC member Lesley Emmington, Peace and Justice Commissioner Elliot Cohen and others.
Wagley is also a principal figure in another suit, an action challenging the city’s settlement of a lawsuit filed against UC Berkeley’s Long Range Development Plan growth projections through 2020.
That settlement resulted in creation of the DAPAC, which is inching toward a preservationist stance in the new downtown plan mandated by the settlement. Dacey has been an outspoken advocate of preservation on the committee.
The key issue cited in the action Brandt-Hawley filed this week is the most controversial feature of the now-stalled LPO, the request for determination (RFD).
The RFD gives property owners a two-year exemption from landmarking efforts if the panel fails to make a declaration within 60 days, and no citizens’ petition for landmarking is filed in the following 21 days.
Once granted, neither citizens nor the LPC would be able to make any effort to preserve existing buildings or features until the end of the 24-month “safe harbor.” Developers supported the RFD, and gave heavily to the campaign to defeat Measure J, the failed November ballot petition that would have preserved the key features of the current LPO while adding minor tweaks to bring the law fully into conformity with other state ordinances.
Because the owner isn’t required to file development plans at the same time an RFD is sought, critics of the law charge that neighborhoods may not grasp the potential impact of the request for determination until a developer is given permits for a building or buildings that could changed the face of the surrounding community.
The RFD “may have a potentially adverse impact on the City’s historical resources and neighborhoods,” Brandt-Hawley wrote, and “denies the opportunity for initiation or designation of a local historic resource even if new information surfaces demonstrating historic merit” during the safe harbor period.
A spokesperson for Berkeley City Attorney Manuela Albuquerque wasn’t sure if the lawyer had seen the filing.