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Landmarks officials refuse city attorney advice, go to Council

StaffJohn Geluardi Daily Planet Staff
Friday November 10, 2000



Four Landmarks Preservation Commission officials who defied the city attorney’s advice and refused to disqualify themselves from participating in matters related to the controversial Beth El Synagogue proposed development are taking their cause to the City Council. 

Last Monday’s Landmarks Preservation Commission meeting came to a sudden halt when the seven commissioners present voted 5-2 to adjourn before hearing any agenda issues. Many of the standing-room-only crowd were shocked at the decision.  

“The whole thing was very, very bizarre,” said Patricia Dacy, who said she had come for an item unrelated to the Beth El project.  

The sudden decision was made when City Attorney Manuela Albuquerque advised Chair Burton Edwards not to recognize the four commissioners whom she says are in violation of conflict of interest laws. Two LPC commissioners were not present at the meeting. 

“This is the first time I’ve met with public officials who refused to disqualify themselves when they’ve been advised about a conflict of interest,” Albuquerque said Thursday.  

The four commissioners, Becky O’Malley, Lesley Emmington-Jones, Doug Morse and Carrie Olson, believe Albuquerque’s opinion is flawed and have asked for the issue to appear on the Nov. 21 City Council meeting agenda. They’re hoping the City Council will discard Albuquerque’s advice and allow them to continue serving on the commission. If not, they are prepared to take the issue to court. 

“It will be much more efficient for the City Council to discount the City Attorney’s opinion,” said land-use attorney Antonio Rossmann, who is advising the four commissioners pro bono. “If the Council decides to agree with the city attorney, (the four) will go to court.” 

Albuquerque released the opinion, written by Deputy City Attorney Laura McKinney, Oct. 31. The opinion said the four commissioners, who are either directors or paid staff of the Berkeley Architectural Heritage Association, could not be impartial because of a letter written by Sarah Wikander in her capacity as president of BAHA . The letter criticized the Draft Environmental Impact Report for Beth El’s proposed development at 1301 Oxford St. contending the developer did not thoroughly take historical aspects of the development site into consideration. 

Before the sudden adjournment, the LPC was prepared to issue an opinion about the project’s Final Environmental Impact Report. The Zoning Adjustments Board would have considered the LPC’s opinion before voting to accept the document. 

The project, which will include a synagogue and school on a two-acre site, has been controversial because of possible damage to Codornices Creek, neighbors’ concerns about parking and traffic and the possible altering of property the city has designated historically significant. 

Rossmann said Albuquerque exceeded her authority when she told the chairman not to recognize the four members during the meeting. 

“The City Attorney was out of bounds when she told the chairman ‘you have to do this,’” Rossmann said. “What the city attorney does is give advice, not issue legal mandates.” 

Albuquerque said she did not tell the chairperson what to do but rather gave him advice when he asked how to proceed. She added that her only concern was that the due process procedures remain fair and that the city not become vulnerable to lawsuits. 

Councilmember Kriss Worthington put the item on the City Council’s agenda. He said the Council may seek the opinion of outside attorneys to determine the validity of Albuquerque’s opinion. But he is concerned what it would mean to the city’s boards, commissions and staff if her opinion is valid. 

“I understand there are people in (the city attorney’s) office who are on the boards of advocacy groups who are in favor of development,” Worthington said. “What would it mean for the work they do for the city?”