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An independent lawyer has weighed in on a dispute between the city attorney and four members of the Landmarks Preservation Commission. Now it appears the case may be going to court. 

Betsy Strauss, a municipal law specialist recommended by City Attorney Manuela Albuquerque, concurred with Abuquerque’s opinion that four LPC commissioners are ineligible to participate in any discussions or actions related to the proposed Beth El project or any other projects on which the Berkeley Architectural Heritage Association has taken an official position. 

The commissioners’ attorney, Antonio Rossman, said he will take the case to Superior Court. 

The conflict began at a Nov. 7 LPC meeting during which there was to be a public hearing on the Environmental Impact Report for the proposed synagogue project at 1301 Oxford St.  

Commissioners Becky O’Malley, Lesley Emmington-Jones, Carrie Olson and Doug Morse challenged Albuquerque’s opinion that they would violate Congregation Beth El’s right to due process if they participated in the process. 

The four commissioners refused to recuse themselves and the commission voted 5-2 to adjourn without hearing any of the items on the agenda. Two uninvolved commissioners were not present. 

At issue is that the commissioners in question are ranking members of the nonprofit Berkeley Architectural Heritage Association, which encourages the preservation of Berkeley’s historic architecture. The site of the proposed Beth El Synagogue and school is the former site of the Napoleon Byrne House and is a city landmark. 

Albuquerque based her opinion on a letter written by BAHA president Sarah Wikander criticizing the Oxford Street Environmental Impact Report because it did not contain documents which BAHA believed would establish the property as eligible for the state historic register. The eligibility would have required the EIR consultant to suggest a variety of alternatives to Beth El’s design. 

The four commissioners brought their case to the City Council on Nov. 24 and the council referred the matter to an outside attorney. In a Dec. 20 opinion Strauss concluded: “(the commissioners’) participation would violate the due process rights of the applicant to a fair hearing by an impartial tribunal. As board members of the Berkeley Architectural Heritage Association, the commissioners have ‘prejudged’ the Congregation Beth El project.” 

Strauss included two California Appellate Court cases and one federal case to support her decision. 

Rossman argued, however, that Strauss’ opinion did not show an in-depth analysis of the legal complexities of the dispute. “This opinion is based on very flimsy legal authority,” he said. “It seems our next choice will be to go to court to get the kind of rigorous analysis this case needs.” 

Commissioner O’Malley said Strauss’ opinion never addressed the fact that BAHA never assumed a position on the project and that BAHA’s letter was only critical of the EIR. “The way the opinion reads it doesn’t even appear to relate to me or the other commissioners,” she said. 

Betsy Strauss did not return phone calls from the Daily Planet before press time. 

Councilmember Kriss Worthington said the opinion, if upheld by the courts, will mean that citizens will have to carefully consider their role in any organizations they belong to.  

“It also raises the question of liability for commission, board and council actions over the last 30 years,” he said. “Will we have people lining up to sue the city now?” 

Assistant City Attorney Zack Cowen said that as far as land use issues go there is a 90-day statute of limitations. “But there are always exceptions,” he said.