Staff has asked council to revise a recent landmark designation for Campanile Way, alleging an overreach by the Landmarks Preservation Commission that city law does not support.

Editor’s Note: Scroll just below this story for the Sept. 20 update.

City staff has asked the Berkeley City Council to revise a recent landmark designation for Campanile Way, citing what it described as a legally questionable overreach by the Landmarks Preservation Commission in April.

Campanile Way, and the view from the base of the tower that gives the path its name, have been controversial topics in Berkeley for more than three years as preservationists have duked it out with developers over how and whether that view should impact new construction downtown.

Now, city staff is asking council to modify the April 5 Landmarks ruling so it would actually comply with city law. As it stands, it does not, staff wrote in a report prepared for Tuesday night’s council meeting. That’s because the city’s Landmarks Preservation Ordinance “does not list views, view corridors, or lines of sight among the objects that can receive designation consideration.”

Staff says references to the significance of views in the recent Landmarks decision reach “beyond the purview” of the ordinance, and contradict it “and the policy directives of the adopted Downtown Area Plan (2012) related to building heights for new development.”

Staff says council should revise the Landmarks ruling to take out any reference to views. It could also decline to certify the Landmarks ruling, or overturn it altogether — because Campanile Way is already protected on the National Register of Historic Places. If officials are interested in the view issue, staff wrote, council could ask the Planning Commission to undertake “a comprehensive study of potentially important views” in the city, as well as the best approach “for implementing viewshed preservation in Berkeley.”

In their April 5 landmark designation, LPC commissioners cited three primary reasons Campanile Way is significant. One, the LPC wrote, is “As a world-famous formal view corridor, both to the west and to the east, oriented on an axis passing symmetrically through the Campanile tower and through the Golden Gate.” Its landmark designation resolution describes Campanile Way “as a gathering point and cherished campus view corridor since the 19th century.”

“No day passes without campus users pausing at the top of Campanile Way and looking to the west at the Golden Gate view framed by the ‘Way,'” according to the resolution. “Campanile Way is presently the only point on the ground plane of the Berkeley campus from which there is a public, 24-hour-a-day-accessible, view of the Golden Gate. This view serves not only to help campus users and visitors appreciate the history and mission of the University campus, but to connect the campus to the broader region.”

The ongoing battle over views

In 2015, the Landmarks Preservation Commission (LPC) declined to landmark Campanile Way in a process that included similar arguments related to views. Local historian Steven Finacom — who has since been appointed to the LPC by Councilwoman Kate Harrison and now chairs the panel — has pushed hard for years for protections of those views. He told Berkeleyside in 2015 that the LPC had “voted essentially to acquiesce to the privatization of our most important public view in order to provide homes in the sky for a few rich individuals. No civic body has acted so shamefully on a public view issue in Berkeley.”

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Later that year, a City Council majority elected not to overturn the LPC vote, despite a community appeal led by Finacom. Five council members abstained from the matter, while then-Mayor Tom Bates voted “no” to overturn the LPC vote. Then-Councilman Jesse Arreguín, who is now Berkeley’s mayor, along with Kriss Worthington and then-Councilman Max Anderson voted “yes” on the appeal, but did not have enough votes to win the night. (Worthington clarified after publication that he had said, at the time, he thought the item should go back to the zoning board because of procedural and legal questions that had been raised, not because he had a position on the landmarking itself.)

The issue came up again last year when neighbors submitted a new Landmarks petition for Campanile Way. Finacom filed the paperwork, but told Berkeleyside it was “truly a ‘citizen initiation.'” The petition was signed by 56 Berkeley residents, he said, and he was not one of them. It was Finacom himself who publicly announced the petition in September, however, during a zoning board discussion about a new tower downtown over the Walgreens site at 2190 Shattuck Ave.

The petition called out the view corridor, along with other elements including roadway, pathway, facade and landscape features. And this time it worked: On April 5, the LPC voted to designate Campanile Way as a city landmark “based on findings that the pathway exhibits architectural merit, cultural and educational value, and that the views from this pathway are ‘significant contributing elements.‘”

Disagreement between staff and commissioners

The April 5 staff recommendation to the LPC had advised the body to “take no action” on the landmarking petition for three reasons, staff wrote: Campanile Way already has “the highest level of preservation consideration” because it’s on the National Register; the city’s Landmarks Preservation Ordinance “does not allow for the designation of views or view corridors”; and “the preservation of views would more properly be undertaken through comprehensive study and implementing ordinances affecting development controls and zoning.” Alternatively, staff said the commission could designate the pathway but “omit the views as features to be preserved.”

The LPC ignored those recommendations and voted instead to landmark Campanile Way, making numerous references to the importance of related views and sight lines, staff wrote. These references imply that the LPC has authority over view preservation, and that views have status in relation to historic resources, according to the council report.

“Neither of these implied conditions are true or factual and, therefore, the Campanile Way designation should be corrected,” staff wrote.

The views “are not objects or physical features,” so the city’s landmarking ordinance does not apply to them, staff wrote. In addition, they are not “on or entirely within the subject property,” so the city’s ordinance “cannot control alterations to these lines of sight.”

Staff went on to explain that, under the city’s municipal code, Berkeley’s preservation ordinance functions via a recorded notice on the involved property and a required permit for construction work there: “Neither of these regulatory controls can be applied to view corridors because they are not located on the subject property (i.e., the UC campus), and are not physical objects. For all of these reasons, the LPO [Landmarks Preservation Ordinance] does not allow for the designation or preservation of views.”

Also worth noting, though it has not come up much as a primary issue, is that the University of California is generally exempt from local development regulations because of the “state’s sovereign immunity.” So construction on campus or other UC property does not need to go through local zoning processes or secure city permits for work, staff wrote, though the university has generally approached projects with a spirit of collaboration.

No rebuttal to the staff report appeared to be part of any of the council communications packets posted online as of Monday night.

Council is set to consider the staff recommendation Tuesday night. See the full agenda.