Berkeley zoning ballot language heading to court

Downtown Berkeley: at the heart of a ballot initiative and a lawsuit. Photo: Tracey Taylor

Berkeley City Councilman Jesse Arreguín filed a lawsuit against Berkeley on Wednesday seeking to overturn ballot language that will be used to describe a downtown zoning initiative.

Arreguín wants an Alameda County Superior Court judge to take up the matter immediately, since final ballot language for the November 2014 election is due Sept. 2.

In the lawsuit, Arreguín alleges that the City Council voted to use misleading and inaccurate wording to describe the downtown initiative for the November ballot. State law requires that ballot language be neutral and non-argumentative, Arreguín said in the lawsuit.

The initiative will be known as Measure R.

The City Council rejected ballot language put forth by Arreguín and City Attorney Zach Cowan and instead adopted a description created by Mayor Tom Bates, who opposes Measure R. Many of the terms in the ballot language are intended to dissuade people from voting for the measure, Arreguín said. He would now like to have the city adopt the city attorney’s ballot language.

In July, when news broke that Arreguín intended to file a lawsuit, Bates said he thought his ballot wording was fair. He called the 28-page-long measure “extremely complicated,” and “difficult to understand.” Bates said it was not easy to craft the wording from such a dense document. Bates stands by the summary, and welcomes the court’s decision, he said.

See the Berkeleyside downtown initiative cheat sheet.

The lawsuit contends that Bates’ wording is factually incorrect and partisan. For example, Bates’s wording states that Measure R would “reduce height limits.” That is untrue because it suggests the measure would lower limits throughout the entire downtown, rather that just in two buffer areas, according to the lawsuit.

The initiative actually increases height limits because it allows developers to built extra 10-foot-tall “penthouse units” on buildings if they add all the parking spots currently required by law, plus 10 extra spaces for the public to use, the lawsuit contends.

Developers have said building parking spaces is so expensive that that incentive is no incentive at all.

Arreguín also expressed concern in the lawsuit, among many other issues, that one of Measure R’s most important provisions — the creation of a zoning overlay for the Civic Center district — is relegated to the center of the ballot paragraph where it gets lost. There is no real description of what it will do either.

“The ballot label is full of misstatements, negative characterizations, and highlighting of relatively minor features while omitting mentions of features with more significant reach or impacts which create an unlawful bias against the Initiative which must be corrected,” reads the lawsuit.

Arreguín was joined in the lawsuit by Austene Hall, chair of the city’s Landmarks Preservation Commission, Stefan Elgstrand, a recent UC Berkeley graduate who was one of the defendants in a lawsuit filed by Berkeley concerning new redistricting lines, Sarah B. Nelson and James Massar. Sophie Hahn, the city Zoning Adjustments Board commissioner who helped draft the initiative, is not a party to the lawsuit.

No court date has yet been set.

Read the lawsuit.

Read Berkeleyside’s coverage of the downtown initiative.

Berkeley hotel halted pending initiative vote (08.07.14)
Wording of ballot initiative headed to court (07.31.14)
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 is co-founder and executive editor of Cityside. Email: