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Berkeley Iceland Gets Another Chance

By Riya Bhattacharjee
Thursday January 21, 2010 - 09:09:00 AM

The fate of Berkeley Iceland hangs in the balance over the next four months as its owner and the non-profit trying to save it attempt to strike a deal. 

Although the Berkeley City Council was set to vote at its Tuesday meeting on whether the historic structure should be stripped of its landmark status, an 11th-hour agreement between its owner, East Bay Iceland Inc., and Save Berkeley Iceland, a local group which wants to buy the building and turn it into a community skating rink and recreation center, continued the issue to the council’s May 18 meeting. 

After the Berkeley Landmarks Commission voted to list Iceland on the local landmarks register due to its architectural and historic merits, its owners appealed the decision to the City Council in July 2007. The council upheld the landmarks commission vote. 

Save Berkeley Iceland was unable to come up with the $6.25 million asking price for the building, and East Bay Iceland filed a lawsuit against the city in November, arguing that the landmarking had been done on faulty grounds, without consideration of public interest and had caused severe economic impact to the corporation. 

After settlement discussions between attorneys for the parties, city staff and the Berkeley City Council tentatively agreed at a closed meeting to settle the lawsuit with East Bay Iceland by rescinding the council’s earlier decision and holding a new public hearing to once again determine whether or not the building should be designated a landmark. That decision was placed on the Tuesday agenda for confirmation. 

The landmarks commission, the local body certified by the state of California to rule on historic buildings, cried foul, saying the city’s actions were in violation of the city’s landmarks ordinance. 

“The LPC has not been informed of the review on Jan. 19 and cannot find the supporting law for this hearing in our ordinance,” Landmarks Preservation Commission Chair Gary Parsons wrote in a letter to the City Council. “Is this hearing a de facto second appeal? If so, and if the designation is to be reconsidered, the commission would like formal notification and the opportunity to defend our decision.” 

Preservationists and Berkeley residents supported the commission’s argument, and sent letters to council asking them not to rescind their decision. 

One of them even went so far as to file an application to list Iceland on the National Register. 

“The landmarking of Iceland followed the law,” landmarks commissioner (and Berkeley Daily Planet arts and calendar editor) Anne Wagley told the council. “There is nothing in our ordinance that allows the City Council to create a de novo hearing on landmark status. And the issue of economic hardship is not part of the landmarking process but may enter into the discussion when an owner applies for a permit.” 

Save Berkeley Iceland President Tom Killilea told the Planet after the meeting that the two parties had agreed to work together to arrive at some kind of understanding about how to help his organization reach its goal. 

“We see a great opportunity to work through it,” Killilea told the council. 

East Bay Iceland’s attorney Wilson Wendt from the law firm Miller Starr and Regalia waved away the Planet’s request for a comment, but Berkeley City Attorney Zach Cowan said that Save Berkeley Iceland’s attorney Paul Kibel had submitted a letter to the city on Jan. 15 asking for more time. 

“They said we have this new plan which might work out,” Cowan said. “When East Bay Iceland heard it, their lawyers said we have ‘given it two years, might as well give it four more months, but then we will have to make a final decision.’” 

Kibel threatened the city with a potential lawsuit if the council moved ahead with the public hearing because of the potential conflict with the landmark statute. 

“We raised a number of issues in the past few days,” Killilea said. “We objected to the lack of notice to all the parties involved in the landmarking. I wrote the landmark application and I was not mentioned in the lawsuit nor sent a notice about it.” 

He said his group would focus on raising the money required to purchase Iceland by appealing to supporters and applying for state grants. 

“We are hopeful we can come up with a number the owners will like,” he said. “I feel this gives us time to sit down and talk about the issues.” 

Cowan stuck to his earlier argument that the settlement agreement entitles the City Council to hold a public hearing to decide whether Iceland should be landmarked. 

As for the controversy surrounding his advice to the council, he said, “I don’t think it’s about the legal advice, I think it’s more about the result.” 

Cowan said that when a landmarking is appealed to council, they can either affirm the decision or send it back to the landmarks commission or set their own public hearing. 

“The decision was affirmed without a public hearing,” he said. “So all they are doing is holding a public hearing.” 

Cowan said correspondence between East Bay Iceland and Save Berkeley Iceland suggested that both sides might support modification of the landmarks designation. 

“I think they both realize that full designation makes it not feasible to do anything,” he said. “It’s interesting because the Landmarks Commission is essentially saying ‘you can’t touch it.’ It will be very interesting to see how this plays out.” 

East Bay Iceland has maintained from the very beginning that they would support landmark designation of the western facade and the lobby, but not the rest of the building, where the skating surface is located.