Downtown Berkeley, May 2014. Photo: Emilie Raguso
A battle is brewing over the wording that will be used to describe the downtown initiative on the November ballot. Photo: Emilie Raguso

Berkeley Councilman Jesse Arreguín has asked the city attorney’s office to amend the wording that will be used to describe the downtown initiative in an election pamphlet because it is “inaccurate,” “misleading” and does not comply with the law. He also said council’s adoption of that wording was in violation of the Brown Act.

Courts have ruled that “the government may not ‘take sides’ in election contests or bestow an unfair advantage on one of several competing factions,” Arreguín wrote in a July 21 letter to City Attorney Zach Cowan. Yet the ballot wording adopted by council June 24 is biased and not impartial, said Arreguín.

Moreover, the version of the ballot summary adopted by council was not included in the council agenda packet and was brought up after the public comment period was closed, said Arreguín. That deprived the public of a chance to review it and comment on it. The Brown Act requires government bodies to provide agenda materials 72 hours in advance. Berkeley’s own sunshine law requires materials to be provided 10 days in advance.

“The ballot question as currently worded does not state the nature of the ordinance, but rather misstates it, creating bias against the measure,” wrote Arreguín. “It includes factual errors, and the choice and ordering of topics, as well as characterizations and word choice, result in a negative and factually incorrect statement of the Initiative.”

Read Berkeleyside’s coverage of the downtown initiative.

Arreguín also expressed concern about Cowan’s analysis of the initiative, which will go into the handbook passed out to voters. It “suffers from numerous factual errors and extreme bias in the choice and ordering of topics and in word choice and terminology,” Arreguín wrote.

Arreguín asked that the city agree to changes in the ballot wording by 5 p.m. July 24. If the city does not make substantial changes, Arreguín said he intends to seek relief in Alameda County Superior Court.

Cowan said he intended to respond to Arreguín’s letter this week and could not comment publicly until after his response goes out.

After 3,700 people signed a petition in support of the downtown initiative, the council voted in June to place it on the ballot. Then council voted 6-1-2 to pass ballot language suggested by Mayor Bates. Council members Linda Maio, Daryl Moore, Susan Wengraf, Gordon Wozniak and Laurie Capitelli, along with Bates, voted for that language. Kriss Worthington and Max Anderson voted against it, and Arreguín abstained.

The Bates’ version reads:

“Shall an ordinance amending the Zoning Ordinance provisions for downtown Berkeley be adopted to: reduce height limits; impose significant new requirements for new buildings over 60 feet; eliminate current historic resource determination for Green Pathway projects; establish a Civic Center Historic District Overlay; amend LEED requirements; change parking requirements; restrict some permitted uses; change prevailing-wage requirements for workers in specified categories; and reduce hours of operation for businesses selling or serving alcohol?”

Bates’ description of the initiative emphasizes the restrictions it will place on development in downtown, whereas the one Arreguín was pushing for places the initiative in a friendlier light:

“Shall an ordinance amending Berkeley’s Zoning Ordinance to implement Berkeley’s Green Vision for the Downtown, specify community benefits, adopt strong green building standards to help meet climate action goals, ensure affordable and family-sized housing, provide funding for streets and open spaces and for loans to small businesses, ensure jobs for local workers at prevailing wages, promote revitalization of our downtown, and preserve Berkeley’s historic Civic Center for civic uses, including the Post Office, be adopted?”

If the city won’t adopt Arreguín’s wording, he asks that it at least adopt the wording Cowan drew up:

“Shall an ordinance amending Berkeley’s Downtown Zoning Ordinance provisions to: modify permit procedures and heights; require additional public benefits including affordable housing and fees to fund open space and loans to small businesses; increase green building standards; require payment of prevailing wages for certain employees; increase bicycle, handicapped, car share and vehicle parking; and adopt an overlay in the Civic Center Historic District allowing only civic uses and limiting heights to 50 feet, be adopted?”

The downtown initiative is quickly becoming one of the most contentious items on the November ballot. Even its name is source of controversy. Arreguín named it, and calls it “Berkeley’s Green Downtown & Public Commons Initiative.”

Cowan, in contrast, named it “Initiative Ordinance Amending Downtown Zoning Provisions and Creating Civic Center Historic District Overlay Zone.” That is how it will appear on the ballot.

Read Arreguín’s letter to Cowan.

At B-Side: Implications of the downtown initiative (07.22.14)
Berkeleyside launches new talk series, the B-side (07.03.14)
Downtown initiative put on ballot; city may lose millions in fees (06.26.14)
Berkeley mayor will push for civic center overlay (06.09.14)
Would new green initiative kill two downtown high-rises? (05.14.14)

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Frances Dinkelspiel, Berkeleyside and CItyside co-founder, is a journalist and author. Her first book, Towers of Gold: How One Jewish Immigrant Named Isaias Hellman Created California, published in November...