Controversy Looms Over Council Ballot Vote

Friday July 23, 2004

The City Council Tuesday placed three controversial measures on the November ballot, but not before tweaking their wording and going on record opposing their passage—all in a manner one councilmember thought might violate state law. 

In other news from Tuesday’s meeting—the last before a nine-week summer recess—the council agreed to provide emergency funding to a debt-ridden local jobs program and threw out a neighborhood vote on undergrounding utility wires because of a legal issue and confusion over the project’s cost to residents. 

This was the council’s last meeting before the summer break. The council will next meet on Sept. 21. 

The ballot measures would make prostitution the city’s lowest police priority, grant new rights to medical cannabis users and distributors—including by-right zoning for new cannabis clubs in commercial districts—and establish a board to regulate the city’s public trees.  

The City Council wants none of the above, so last week—instead of simply placing them on the ballot, which they are required to do—they created a four-member subcommittee to revise the ballot summaries that voters will read on their touch-screen voting machines and sample ballots. 

After Mayor Tom Bates and Councilmember Dona Spring wrangled over ballot language, the subcommittee unanimously approved slight revisions to the prostitution and marijuana measures and reached general agreement on more substantive changes to the ballot summary for the tree initiative. 

But there was one problem, said Councilmember Kriss Worthington after the council meeting. The subcommittee reached “unanimous” agreement without ever meeting face-to-face. The subcommittee reported they met “informally and via e-mail” to reach a consensus, which Worthington believed violated the state’s Brown Act prohibiting the majority of members of an official public body from discussing an issue outside of a noticed-public meeting. 

“Every subcommittee that I’ve been on has been governed by the Brown Act,” he said. 

But City Attorney Manuela Albuquerque said the subcommittee was an ad hoc body, not subject to the Brown Act. The law would only have applied, she said, if the subcommittee had a fixed meeting schedule, comprised a majority of the council or a continuing matter of jurisdiction, like the council’s Agenda Committee. 

Attorneys for the California First Amendment Coalition (CFAC) and California Aware sided with Albuquerque.  

“I hate to say it but she’s right,” said Lisa Sitkin, a San Francisco attorney who mans the CFAC hotline. “It’s all carved out there and she followed it to the letter.” 

“I’m not positive that it’s illegal, but I think it’s immoral,” Worthington said. “When we appoint subcommittees I think the public should know what they’re doing.” He said Albuquerque gave him the impression that the subcommittee never met in person because the meeting would have to be noticed. 

Worthington also griped about the council’s vote to oppose the measures they placed on the ballot when the meeting agenda didn’t specify that such a vote would take place. 

Albuquerque replied the vote was legal since the all three measures were listed on the meeting agenda for discussion. The council’s vote to oppose them Tuesday can now be incorporated into the official opposing arguments mailed to voters. 

Also reaching voters before the election will be the city attorney’s analysis of the measures, much to the chagrin of tree ordinance sponsor Elliot Cohen, who last week argued the city attorney’s analysis and the city’s impact report on his measure were full of inaccuracies and overestimated the price of his proposed tree board at $250,000 annually plus $100,000 in start-up costs. 

After Cohen met with city officials last week to address his concerns, the city attorney’s analysis now simply lists initial costs at $350,000.  

Albuquerque said she had to compress the two cost figures previously written in two separate sentences to include other language that Cohen requested and keep the analysis within the mandated 500 words. 

Cohen, though, smelled a rat. “Sine I complained about inaccuracies they raised it to $350,000,” he said. “When the city collapses two sentences into one and it costs them $100,000, they need to learn how to edit.” 

He still insists that the tree board, empowered to license tree workers and regulate the planting and removal of trees, would cost far less than $250,000 and require a quarter-time staff member to administer, not two full-time staffers as the city estimates. 

But Deputy City Manager Lisa Caronna said the tree ordinance would be “incredibly cumbersome” and require a huge amount of staff work to serve the board, hear appeals, conduct investigations and administer the ordinance. 


Utilities Undergrounding 

A legal technicality and some oudated financial data will keep a Berkeley Hills neighborhood battle to bury its unsafe and unsightly utility wires broiling through September.  

With ballots scheduled to be counted at Tuesday’s meeting, the council invalidated the vote because the ballot overstated costs and—contrary to state law—excluded the formula for how different properties would be assessed. 

The ballots estimated the costs at $3 million, but recent contract bids have pegged the price at $2.3 million. 

New ballots will be sent and counted at the council’s Sept. 21 meeting. If residents of the 105-house tract district near the Kensington border approve the plan, they would be the first in Berkeley to bear the costs of undergrounding their utilities. 

Under the current scheme, residents with a bay view would pay $24,000, residents without a view would pay $21,000 and residents on the periphery of the district would pay $18,000. 

While neighbors disagreed on whether the safety and beatification benefits of undergrounding were worth the price, most agreed that the council had overstepped its bounds last month when it lowered the threshold needed for passage from 70 percent to 60 percent without alerting residents of its ruling. 

“We had always made the decisions on the basis of a 70 percent vote,” said Terry Mandel, an early supporter of undergrounding. “To have it changed in these rooms only to make it easier to pass really feels like a betrayal by the city.” 

“I apologize you didn’t have notice,” Mayor Tom Bates told the roughly two-dozen residents assembled in the council’s chambers. “We believed we were trying to advance the cause of undergrounding.” 

As a compromise measure, the council set the vote threshold at two-thirds. Although that creates the risk of neighborhood division if the final vote falls between 66 and 70 percent, residents appeared pleased. 

“I would have preferred 70 percent, but I did feel heard tonight and that was important to me,” said Cambria Lowe, an opponent of undergrounding. 


Jobs Consortium 

The council gave City Manager Phil Kamlarz authority to grant up to $50,000 to the Jobs Consortium if the money can help the nonprofit re-start its training and job placement services for the city’s homeless. Earlier this month the 16-year-old non- profit shut its doors and sent lay-off notices to its 50 employees after a Department of Housing and Urban Development (HUD) Review found that it had failed to raise enough cash to qualify for its HUD grants over the past three years. 

The Jobs Consortium needed to raise $588,088 in local funds annually to qualify for three HUD grants totaling $2.5 million. Failing to achieve the local match, the nonprofit valued a training program offered by a local union to equal the match. HUD, however, invalidated the match and now wants repayment of up to $1.5 million. 

Berkeley, Oakland and Alameda County and HUD are working on a possible deal to bail out the Jobs Consortium before a July 27 deadline for HUD funding. The Berkeley money would come from $100,000 set aside for incentives for community agencies to improve administrative services. 

With the cash match gap estimated to be about $486,000, Housing Director Steve Barton told council, the jurisdictions are working to preserve one or two grants. 


Land Use 

The council also upheld the Landmarks Preservation Commission’s ruling to include a building at 2104 Sixth St. in the newly created Oceanview Sisterna Historical District and the Zoning Adjustment Board’s decision to grant a use permit for a four-story, 51-unit apartment complex with retail space and 67 parking spaces at 1800 San Pablo Ave. at Delaware Street.