Public Comment

Commentary: Examining the Opposition to the New LPO

By Alan Tobey
Tuesday December 19, 2006

Now that the City Council has passed its community-compromise LPO, after more than six years of stalling and resistance by the hyper-preservationist community who brought us Measure J, we’re faced with the bad dream of a referendum campaign and up to 23 more months of additional delay. And for what? Basically, it comes down to objection to the “request for determination” provision of the new law. So let’s look at RFD and its alleged dangers: 

RFD gives to property owners (not to developers merely prospecting) the ability to neutrally ask the Landmarks Preservation Commission (LPC) whether or not an owned property meets the city’s criteria for either landmark or structure of merit. An RFD application must include a thorough historic study that’s either conducted by a qualified consultant — chosen by the city, not the applicant, from a list established by the LPC, and at applicant expense — or written by the applicant but vetted by a qualified city-chosen consultant at applicant expense. At least 21 days after the application is complete, the LPC will decide after a public hearing whether or not to “initiate” the property for consideration of historic designation, which can be granted or denied after a second public hearing. If the LPC declines to initiate a property, citizens have the right to initiate by petition, which requires only 25 signatures. And if the LPC declines to designate an initiated property, citizens may appeal that decision to the council. 

The outcome of an RFD process therefore may, in fact, be the historic designation of the subject property. This would not necessarily prevent any changes to the property, but either proposed alteration or proposed demolition would have a much higher bar to clear. The new LPO grants to the LPC, for the first time, the authority to deny demoitions of historic resources (again subject to appeal to the council). If, after one or two public hearings and three to six months of public process, a property is declined for designation, then that non-landmark status can’t be revisited for two years (or longer if a valid building permit remains in force). This two-year protection is designed to allow property owners to consider potential changes with full knowledge of what constraints the LPO may impose. 

For those of us who worked to enact this provision, RFD adds to our ability to carry out historic preservation in Berkeley, rather than weakening that effort. From the perspective of a developer, or a property owner contemplating changes to his or her property, filing an RFD creates the very real risk that the property will be designated a landmark or structure of merit. With that real possibility, no one should apply for an RFD without a very high degree of confidence that the property does not qualify as an historic resource. And that creates the public benefit: that would-be developers are motivated by the RFD process to focus their attention on properties that don’t qualify as historic resources, and to leave alone those worthy properties we do want to preserve. As a second public benefit, the RFD provision will in many cases alert neighbors to potential development much earlier than now occurs, encouraging earlier developer-neightbor conversations instead of desperate battles at the ZAB. 

This neutral RFD provision, however, does not satisfy those Berkeleyans who want the LPO to be used as a weapon against development in general, and against any and all “growth” in particular. But all forms of the LPO — the former ordinance, the new council ordinance and even the Measure J alternative — are very properly silent on the virtues or vices of growth and development. That issue is the province of the Planning Commision and the council, and decisions are expressed via the General Plan. So opponents of RFD mainly mourn the loss of the ability to throw rocks in the development gears via the LPO — and rightly should they do so. 

Going forward with the referendum, of course, will mean that all right-thinking and mainstream preservationists will also be tarred as extremists. As a result, all progress on further improving our historic protection process — such as by establishing neighborhood conservation districts — will be put on the shelf for two more years. What’s the civic good of that? 


Alan Tobey has lived in Berkeley since 1970 and worked for the original Landmarks Preservation Ordinance.