Downtown Berkeley, May 2014. Photo: Emilie Raguso
Downtown Berkeley, May 2014. Photo: Emilie Raguso

The backers of a downtown Berkeley initiative that voters will consider in November plan to file a lawsuit next week to force the city to change the wording in the ballot measure. They contend that the summary is inaccurate, biased and misleading.

The decision to go to court was in response to Berkeley’s decision not to voluntarily change the wording of the ballot measure. City Councilman Jesse Arreguín had sent a letter on July 21 to City Attorney Zach Cowan asking for changes, but Cowan responded in a July 24 letter that he did not have the power to modify the wording. Only the Berkeley City Council, which is in recess until September, can make those changes, Cowan said.

“It is unfortunate that the City Council was not advised, at the time the biased and factually inaccurate Ballot Statement language was put forward, that such language violates legal standards,” Arreguín wrote Cowan on July 30. “In light of that omission, and given that the City Council is on recess, we have no choice but to seek judicial relief to protect the rights of all Berkeley voters to fair elections.”

Mayor Tom Bates said Wednesday that he disagreed with Arreguín’s assertion that the ballot wording was not fair. The initiative is 28 pages long, is “extremely complicated,” and “difficult to understand,” he said.  It’s “not an easy thing” to craft a ballot measure from such a dense document, but he, other council members, and attorneys worked on the wording. Bates said he stands by the summary.

“I am not interested in making any changes,” said Bates. “If Jesse Arreguín wants to take it to court, that’s fine. We will go to court and abide by whatever the judge decides. I think the language is fair and accurate and will stand up.”

Mayor Tom Bates. Photo: Emilie Raguso

The threat of a lawsuit is only the latest salvo in the decade-long battle to reshape Berkeley’s downtown, and it has pitted Mayor Bates’ council majority against the trio of council members who often oppose him – Arreguín, Kriss Worthington and Max Anderson. Joining the Bates’ contingent are developers and those in favor of high-density development along transit corridors. Those opposing higher density development are preservationists who argue that historical reuse is better than tearing down and rebuilding structures, as well as those who believe density must be tied to more stringent community benefits.

Bates’ colleagues, developers and groups like Livable Berkeley had won a major victory in 2010 when voters approved Measure R by 64% of the vote. The advisory measure provided a blueprint for development in downtown which included higher density along Shattuck Avenue and near the BART corridor, and an emphasis on using public transportation over driving. The City Council codified the measure in 2012 when it adopted the Downtown Area Plan (DAP).

Because the DAP provided some certainty after years of argument, (and the economy improved) numerous developers stepped forward with proposals to build taller structures. Currently, there are more than 1,300 apartments under development throughout the city, with a significant number planned for downtown. In 2013, the Berkeley Planning Department won a “Best Practices” award from a prestigious city planning group for the DAP and associated programs.

Councilman Jesse Arreguin. Photo: Emilie Raguso
Councilman Jesse Arreguin. Photo: Emilie Raguso

But Arreguín and a coalition of preservationists, unions, a slower-growth contingent, and others do not think developers are offering enough in community benefits in exchange for the higher density, despite Berkeley’s insistence that it requires more from developers — like lifelong transit passes for apartment dwellers — than most cities. So they circulated a petition that they think puts the “green” back into the Downtown Area Plan. The group collected more than 3,700 signatures to place it on the November 2014 ballot.

The development community contends the initiative makes too many demands under the guise of “green” and will kill construction. A consulting firm hired by Berkeley to examine the impact of the initiative agreed, and said Berkeley would lose about 1,300 apartments and millions of dollars in fees if the initiative passes. The initiative would make it infeasible to construct anything higher than 60 feet in the downtown, according to the report. Arreguín and his supporters contend that report was prepared by a pro-development consultant and its conclusions should be regarded with suspicion.

Now the battle has turned to the ballot. The council majority on June 24 defeated proposed wording of the summary of the initiative put forward by Arreguín. Instead, the council adopted wording suggested by Mayor Bates. Arreguín wrote Cowan on July 21 to demand that the summary, which he characterized as inaccurate and misleading, be changed. He also asked that Cowan change the wording of the analysis he wrote of the ballot measure. Arreguín also said he thought the city council violated the Brown Act, the state’s open meeting laws, when it adopted Bates’ language.

Cowan, in a letter sent to Arreguín on July 24, did agree to make some changes to his analysis of the initiative that will appear in the voter pamphlet. Arreguin had suggested the summary was inaccurate and showed “extreme bias” in the organization of its contents. Cowan said he made changes in response to the errors Arreguín had pointed out, although he contended that the analysis of the measure was impartial and the organization appropriate.

“This 27+ page initiative adopts numerous complex and interrelated amendments to the Zoning Ordinance,” Cowan wrote. “Explaining its effects and operation to the public correctly, and in a way that is clear and understandable, in no more than 500 words, is challenging. There is more than one way to do so, and it is always possible to take issue with the analysis to the particular choice of this or that word.”

Cowan also told Arreguín he did not think the council violated the Brown Act when it adopted wording for the ballot. Cowan directed Arreguín to the printed agenda, which stated that ballot wording would be considered.

But Cowan declined to address the wording of the ballot summary.

Arreguín said he wants the court to compel the Alameda County registrar of voters and the Berkeley city clerk’s office to “delete or amend the language of the ballot question.”

So far, Arreguín is the only signatory to the letter threatening a lawsuit. But he said other Berkeley residents plan to join with him. They won’t hire an attorney but will appear “pro se,” or for themselves in Alameda County Superior Court.

The wording of the ballot summary and analysis must be completed by the end of August to give officials enough time to prepare election materials.

Read Berkeleyside’s coverage of the downtown initiative.

Council member says Berkeley ballot is biased (07.23.14)
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...