Berkeley is getting ready for another landmark brawl. The City Council voted last month to settle a lawsuit filed by the owners of Berkeley Iceland which challenged the building’s landmark status.
As a result of the settlement agreement, the council will hold a public hearing Jan. 19 and reconsider the landmark designation.
The 67-year-old ice rink on Milvia and Derby streets closed in March 2007 due to flagging business and high maintenance costs, following which the Berkeley Landmarks Preservation Commission designated it a city landmark.
Iceland’s owners, East Bay Iceland, Inc., appealed the decision but failed to persuade the City Council that the landmark status undermined the building's allure for developers.
In Octobers 2007, East Bay Iceland signed an agreement with the city in which the company waived its rights to challenge the landmark status in order to give a group of community members the opportunity to raise money to buy the rink and re-open it.
Although Tom Killilea and his non-profit Save Berkeley Iceland signed an exclusive contract with East Bay Iceland in March 2008 to purchase the rink for $6.25 million, the group was not able to raise the money by the one-year deadline.
East Bay Iceland sued the city in October, charging that the economic impact of the landmark designation had been severe, preventing the sale of the property for an economically viable use, resulting in it sitting idle for over two years and turning it into “an unproductive eyesore and target of vandalism.”
The lawsuit alleges that there was “no substantial evidence” to support the designation based on “historical architectural style” beyond the building’s eastern facade, and that the rest of the building served primarily “utilitarian purposes.”
The lawsuit also singles out other features, such as the building’s berms, wings and rink as not worthy of landmark status, an argument with which Berkeley Landmarks Preservation Commission Vice Chair Carrie Olson disagreed.
The lawsuit also contends that the “application and designation of the entire structure—both by LPC and City Council—was based on numerous inaccurate representations, unrealistic expectations, baseless statements or exaggerations but not any substantial evidence supporting findings that such a designation met the criteria of the 'Landmarks Preservation Ordinance.' ”
“When we landmarked it," Olson said, "we landmarked Berkeley Iceland. We landmarked its history and culture as well as its architectural value.”
Olson said the building’s berms had been especially noteworthy because they provided insulation, a novel use.
“We had a long discussion on the berms and the way they were built,” she said, dismissing the lawsuit’s contention that the berms were simply “cut and fill” against the foundation to create “banked seating.”
East Bay Iceland said in its lawsuit that Save Berkeley Iceland did little to update the owners about the group's progress and in December 2008 was informed by its real estate broker that the group did not intend to extend the contract—as permitted in the agreement—or purchase the property.
According to East Bay Iceland, neither Save Berkeley Iceland nor “any other preservation group could raise the funding needed for acquisition, rehabilitation and operation of the property.”
But Killilea told the Daily Planet Monday that efforts to buy Berkeley Iceland were far from dead.
He said that although the group had been able to raise a decent downpayment, it had struggled with donations in light of the recent recession.
Killilea said that after the contract with East Bay Iceland expired, the group had asked for an extension and a chance to renegotiate, but had not heard back.
“The next thing, we got a note from their lawyer saying that the contract had expired,” he said.
Calls to Miller Starr Regalia, the law firm representing East Bay Iceland, were not returned by press time.
“We have been quiet because we have been working with a number of large donors,” said Killilea, who co-wrote the landmark application for Iceland along with Elizabeth Grassetti. “Until we have a couple of millions pledged, we don’t want to waste anyone’s time.”
Save Berkeley Iceland, Killilea said, was currently working with the city to get a $5 million state parks grant through Proposition 84.
City Attorney Zach Cowan said that right before East Bay Iceland filed the lawsuit against the city in the fall, the company proposed the idea of a settlement agreement
“The council decided they wanted a chance to reconsider the decision,” Cowan said. “It’s easier to reconsider it than fight about it. The circumstances have changed—Save Berkeley Iceland tried to buy the rink but weren’t able to. A different set of facts can lead to a different set of decisions.”
At its Nov. 9 closed executive session meeting, the Berkeley City Council voted 7-0 to approve the settlement agreement, with councilmembers Kriss Worthington and Jesse Arreguin abstaining.
Worthington contended that there was significant historic and cultural evidence present to justify the landmarking.
“There are skaters who went to the Olympics who have practiced here,” Worthington said, referring to Olympic gold medalist Kristi Yamaguchi. “Of course it’s historic.”
Cowan said that at the Jan. 19 meeting, the council could choose to “designate it as a landmark or not designate it as a landmark or do a less inclusive designation.”
He said the council would be making the final decision on the landmark status and that the issue would not be referred back to the Landmarks Preservation Commission.
Olson pointed out that there was nothing in the city’s landmarks ordinance that allowed the council to “un-landmark a landmark.”
“They will have to find it unworthy of landmarking, and I would be really surprised if this wasn’t sent back to us,” she said. “It calls into question the integrity of the commission. I have never heard of anything like this in 35 years of the ordinance. It’s jaw-dropping.”