Judge tweaks downtown ballot summary after lawsuit

Downtown Berkeley, May 2014. Photo: Emilie Raguso — Berkeley voters will weigh in on the future of downtown with Measure R this fall. Photo: Emilie Raguso

An Alameda County Superior Court judge ruled Tuesday that several of the words used by the Berkeley City Council in the ballot summary for a proposed downtown initiative to go before voters in November were biased and inaccurate, and has amended its description slightly.

In his 12-page order, Judge Evelio Grillo said he found three words in the 71-word ballot summary describing Measure R to be inaccurate and two words to be “implicit advocacy.”

Read Berkeleyside’s coverage of the downtown initiative.

The matter came before Grillo after Berkeley City Councilman Jesse Arreguín and several others filed a lawsuit in August arguing that the language used by the council in the summary was misleading and inaccurate.

Friday, attorneys for both sides made their cases before Grillo in his courtroom in downtown Oakland.

As adopted in June by council, the ballot summary appeared as follows: “Shall an ordinance amending 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 specific categories; and reduce hours of operation for businesses selling or serving alcohol?”

Grillo struck the language “reduce height limits,” which he wrote was “misleading” because, under Measure R, “the permissible building heights are only lower in certain areas and then only lower by 5 feet.”

Attorney James Harrison, on behalf of the city of Berkeley, told the judge the language about height reductions should be included because the measure itself says it will reduce heights in the corridor and buffer areas downtown, and that developers who want to build higher than 60 feet will have to take the Green Pathway, which stiffens the sustainability standard, increases labor and wage requirements, changes rules around affordable units, and stops the city’s zoning board from issuing use permits for, among other things, height up to 75 feet.

(Several developers and an analysis completed by a consultant on behalf of the city have said the Green Pathway approach is not financially feasible for tall buildings and will stop growth over 60 feet.)

Arreguín said he agreed with the judge’s proposed language. He also told Grillo that, because of a “penthouse bonus” that grants 10 more feet to projects that fulfill increased parking requirements, he believed the height reduction language proposed by council was misleading.

See the Berkeleyside downtown initiative cheat sheet.

In his order, Judge Grillo also substituted “establish” — as suggested by Arreguín on Friday — for “impose significant” in council’s ballot language regarding new requirements for buildings taller than 60 feet.

Harrison argued that the Green Pathway would become mandatory for buildings over 60 feet and would thus be imposed on developers. It is currently an option, which no developer has taken.

Arreguín told the judge that no one is entitled to a use permit and that, further, the word “impose” has a negative connotation that assigns a value judgment and should not be in the summary.

Grillo ruled in Arreguín’s favor on that item, but made no further changes. The lawsuit proponents had asked the judge to throw out council’s ballot summary altogether and use a different ballot summary that had been prepared by the city attorney.

In response to pushback from Harrison about the changes, Grillo told the attorney it would be wise for the city to “accept the concession if it’s mostly winning the case.”

The updated ballot summary appears below.

Judge Grillo's adjusted ballot summary for Measure R. (Click it to read his full order.) — Judge Grillo’s adjusted ballot summary for Measure R. (Click it to read his full order.)

Read more 2014 election coverage on Berkeleyside.

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Emilie Raguso