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In a letter published in the Jan. 28-31 Daily Planet, a reader states that he “would be much more inclined to give some thought to the meetings between the mayor and Seagate developers if Zelda Bronstein’s name wasn’t associated with the story.” He asks: “Has anyone else noticed that Ms. Bronstein’s name appears regularly in news reports concerning opposition to development projects or requests for commercial expansion?” Having read in the Daily Cal that I oppose the West Berkeley Bowl, and knowing that I was against the expansion of Jeremy’s clothing store on College Avenue, he writes: “The Seagate project has gone through all the required levels of our city government checks and balances. Perhaps Ms. Bronstein could try and see that not all development is bad for our city....give it a rest!”  

The writer’s faith in Berkeley’s land use approval process is touching. I wish I could share it. But I can’t, for reasons that I hope the following discussion makes clear. First, however, I want to set the record straight: I support a new Berkeley Bowl of 27,000 square feet, which is what most of the local community wants, and what the store’s owner first proposed.  

As for the other items on the list: My problem with Mayor Bates’ clandestine meeting with the Seagate developers is of a piece with my opposition to both the Seagate project itself and Jeremy’s expansion. In each case, what I object to is not development but questionable official behavior.  

Start with the mayor’s meeting. Until last July, city law made it illegal for the mayor and councilmembers to discuss in any way a development that was under consideration by the Zoning Adjustments Board or, if a project was being appealed, by the City Council itself. More than once, I found myself cut off mid-sentence by a scrupulous councilmember for having merely mentioned a project that was in the pipeline.  

City Attorney Manuela Albuquerque’s assertion to a reporter that the specifics of the Seagate project were never discussed in Mayor Bates’ hour-and-a-half conference with Darrel de Tienne, Dennis Fisco and Mark Polite in April 2004—a claim echoed by the mayor himself—is simply not credible. Her ex post facto interpretation of the law contradicts her own pre-July 2004 instructions to the council on ex parte contacts.  

According to the Berkeley Municipal Code, one of the city attorney’s duties is to “give legal advice in writing” to the mayor and other city officials “when requested to do so by them, upon questions of law” [emphasis added]. Did Mayor Bates ask City Attorney Albuquerque for such advice before meeting with the Seagate developers? Did she offer it? If so, she should publish her opinion for all to see. What are the penalties for violating the rule against ex parte contacts? Is Albuquerque going to impose those penalties on Mayor Bates? If not, why not?  

The illegalities in the Seagate project itself are too numerous and complex even to summarize here. For a full discussion, see the text of Friends of Downtown Berkeley’s appeal, which is posted on the City Council’s Jan. 18 agenda at the start of Item 7d (www.ci.berkeley.ca.us). (Full disclosure: I filed that appeal in behalf of FDB.) Once again, the issue is not development but rather city officials’ unconscientious behavior.  

To cite one particularly blatant example of such improbity: Addressing what he called “a question of fact” that had arisen during the council’s Jan. 11 discussion of the Seagate project, Land Use Planning Manager Mark Rhoades stated: “The Downtown Plan’s provisions for the cultural bonus are embedded in the Zoning Ordinance. They’re in Section 23E.68.070,” he said. “There’s a table that talks about base height and bonus height for the cultural bonus.” The truth of this claim was critical, since the staff reasoning that legitimated the Seagate’s code-busting, nine-story height was based on awarding the project a huge amount of bonus space (ultimately, over 52,000 square feet) in exchange for providing a relatively paltry amount of arts space (12,067 square feet).  

In fact, the phrase “cultural bonus” is nowhere to be found in Section 23.E.68.070. That’s because the cultural bonus has never been enacted into city law; it’s just a policy in the city’s General and Downtown plans. The city attorney let Rhoades’ fabrication go unchallenged.  

The City Council, for its part, dismissed the appeal by a vote of 8-0-1 (Worthington abstained) and asked the Planning Commission to consider, among other things, ways of strengthening the comparable units section of the city’s affordable housing law, whose protections against a development’s “ghettoization” of low-income tenants were all openly violated by the Seagate’s use permit. The council’s request would be laughable if it wasn’t so dismaying. For what needs to be strengthened is not the law but Berkeley officials’ willingness to enforce it.  

Official failure to enforce the law was also instrumental in Jeremy’s expansion. Staff readily admitted that a city planner had erroneously issued a permit for Jeremy’s 2161 College Ave. location. When the Zoning Adjustments Board approved a use permit for Jeremy’s to expand into the space next door, another Elmwood merchant appealed the decision. His appeal was supported by two neighborhood associations. At the council’s Dec. 14, 2004 meeting, Councilmember Wozniak observed that a mistake had been made with respect to the original permit. He then made the winning motion to dismiss the appeal and have the Planning Commission review the law!  

I invite my critic to read the law, to study the staff reports and the notices of decision and the city attorney’s memorandums, and to watch the video archives of ZAB and Council meetings. If there are letters and appeals, read them, too. Then tell me if you still think that I and my colleagues—for, as should also be clear by now, my concerns and my efforts are shared with many others in town—should give it a rest.  

Zelda Bronstein is a former chair of the Berkeley Planning Commission.