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In a memo that City Councilmember Dona Spring calls “shocking” and “the kind of letter that you’d expect from a UC attorney,” the assistant attorney for the City of Berkeley appears to have advised Mayor Tom Bates on strategies to amend Berkeley’s zoning ordinance to fit UC’s needs for the proposed downtown hotel and conference complex. According to Assistant City Attorney Zach Cowan, a “side benefit of including zoning amendments is that we can amend whatever is necessary to bulletproof any City approval.” 

The private memo from Cowan was sent to Mayor Bates on Nov. 14 of last year, but not released to the public or to the full city council. At least two councilmembers—Spring and Kriss Worthington—said they had never seen the memo. Although authorship of the memo has not been verified by either Bates or Cowan, it appears to be authentic. It was leaked to the Daily Planet Monday afternoon from a City Hall source. 

The memo begins with Cowan’s “legal opinion” that the “hotel part” of the UC project comes under Berkeley’s land use controls. That is contrary to UC’s assumption that as a state education institution, the university-owned project would be exempt from local zoning laws. The disagreement is crucial. If UC is found to be exempt from Berkeley’s zoning ordinances, the university would be able to build a hotel and conference center in the heart of Berkeley’s downtown at any height or density it wanted, without regard for Berkeley’s wishes. 

“I think it would be natural for the mayor to ask the city attorney’s office if this project has to go through the city’s planning and zoning process on the grounds that the hotel is for a commercial use, rather than an exempted educational use,” Spring said. “But I find it very troubling that Cowan agrees to, in a sense, run roughshod over the city’s zoning/EIR process by saying they’ll expedite it, and change it. Those are not assumptions that Mr. Cowan should be making. Those are assumptions that the whole council would have to decide upon. This is not a legal opinion. This is a ‘how we can do it’ memo. It’s a plan for how the city can grease the tracks and overcome any citizen concern or input. It calls into question who Mr. Cowan is working for. Is he working for the city council and the citizens of Berkeley or for UC? Sounds to me like he’s working for UC.” 

Spring said it was her opinion that the memo should have gone to every member of the city council “and particularly myself, whose district this is in. I’ve been one of the champions to get a hotel conference center and ecological demonstration project there, for years.” 

Worthington expressed “surprise” about the content of the document.  

City Hall was closed for the President’s Day holiday, and Bates, Cowan, Planning Commission Chairperson Zelda Bronstein, and Planning Commission UC Hotel Subcommittee Chairperson Rob Wrenn could not be contacted in connection with this article. 

The University of California has proposed building a 12-story hotel, conference center, and museum center on the downtown Shattuck Avenue block presently occupied by a Bank of America branch. The release of the Cowan memo comes on the eve of a Feb. 18, North Berkeley Senior Center 7 p.m. public discussion of the project by the Planning Commission and its recently selected 25-member UC Hotel Task Force. 

Bates, who initially requested that the Planning Commission set up the task force last November, reversed his position late last month, saying that while he supported the eventual implementation of the task force, it was “premature to initiate at this time.” Bates wants the Planning Commission task force to hold off any work until he has finished negotiations over the project with UC over “who will serve as lead agency and what the exact permitting process will look like.” Bates told the Daily Planet last week that the task force process is currently “out of control.” 

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