Rarely does an elected official publicly broach spot-on analysis of so delicate a topic as the defeat of the four city tax measures that the Berkeley City Council placed on last November’s ballot, especially when that analysis puts the onus on his colleagues, their staff and himself.
But at the council’s Dec. 14 meeting, Councilmember Kriss Worthington offered just such insight. “Why are people unhappy and voting against things?” he asked. “The single biggest factor I’ve heard why people are unhappy is that the City of Berkeley doesn’t follow the law.”
Worthington made these remarks as the council was discussing the Zoning Adjustments Board’s decision to allow Jeremy’s, a clothing store, to expand from 2161 College Ave. into the adjacent storefront at 2163 College.
City Planning staff had readily admitted that due to a staff error, Jeremy’s owner, Jeremy Kidson, had obtained the original use permit for his business at 2161 College Ave. in violation of the Zoning Ordinance. The ordinance limits the number of clothing stores in the Elmwood District to 10. The shop at 2161 College Ave. made the eleventh of its kind. Nevertheless, city staff had recommended that Jeremy’s be allowed to expand into 2163 College, and ZAB had followed suit.
Jason Wayman, an Elmwood merchant, had appealed ZAB’s decision, contending that in approving the expansion, ZAB had condoned and, worse yet, compounded an illegal act.
Faced with an appeal of a ZAB decision, the council has three choices: It can deny the appeal, send the matter back to ZAB or hold a public hearing. By choosing either the second or the third options, the council indicates that it regards the matter as sufficiently questionable to warrant further investigation.
In the case of Jeremy’s expansion, the council voted 7-1 (Worthington was the sole nay; Councilmember Laurie Capitelli, who owns a business near Jeremy’s, had to recuse himself) to deny the appeal.
The denial appeared to be driven by several considerations. For starters, there were councilmembers’ personal feelings about the quota system and Jeremy’s.
Councilmember Betty Olds said she’d heard that Jeremy’s was a great place to shop for women’s clothes, but that it was too crowded to get in. “If something is so successful,” opined Olds, “we should encourage it.”
Councilmember Dona Spring told how she’d like to patronize the store but can’t get her wheelchair down the aisles between the racks—a difficulty, she implied, that would be eliminated by allowing the shop to expand.
The other major rationale for denying the appeal was the inconsistent administration of the zoning law. Councilmember Gordon Wozniak said the city had permitted “numerous” Elmwood merchants to expand into adjacent storefronts without considering the legal limits on their kinds of business. He also noted that “there was a mistake made in [Jeremy’s] original permit.”
The problem, Wozniak concluded, was that Jeremy’s had “gotten tangled in the quota system.” Wozniak’s solution was to “separate” the two, which he proposed to do by making the double motion that was ultimately approved: Dismiss the appeal, and have the Planning Commission review the quota system in the Elmwood and other neighborhood commercial districts.
Can you imagine the Berkeley Police Department proceeding in this manner? What if the BPD based its enforcement of the law on individual officers’ personal feelings about particular section of the legal codes? Or if members of the police force reasoned that failure to properly enforce a law in the past was sufficient reason not to enforce it in the present? Or if they winked at infringements because the offenders were popular? Or if they saw perpetrators as having gotten themselves “tangled” in the law and in need of extrication by the police?
To be sure, the police have been professionally trained to do their work, while our council and mayor are amateur policymakers—seasoned amateurs, but amateurs nonetheless.
So it’s even more galling that the council’s injudicious denial of the Jeremy’s appeal was countenanced, not to say facilitated, by the professional staff who are paid to guide Berkeley’s elected officials through the thickets of law and history. Neither City Attorney Manuela Albuquerque nor Planning Director Dan Marks said a word. The one staffer who spoke, Land Use Planning Manager Mark Rhoades, reiterated the Planning Department’s support for Kidson’s expansion.
The only official to stand up for the law was Worthington. “We have laws about what businesses can do and can’t do,” he said. “In this case, multiple businesses have been allowed to expand with use permits. Others have been forbidden to do so. How is that fair, and how is it reasonable? It’s not fair, and it’s not reasonable, and we should not be promoting that.”
Worthington noted that Wayman’s request for a public hearing on his appeal was supported by many other Elmwood merchants as well as “by neighborhood associations in the district with very different political perspectives….Not to give these folks a chance to hear their arguments,” said the councilman, “is going to perpetuate the notion that we tolerate unfair and illegal actions on the part of the city…and I don’t think we should do that.”
As he, unlike his colleagues, has figured out, neither do a lot of unhappy Berkeley voters.
Zelda Bronstein is a former chair of the Berkeley Planning Commission. ?