Editorial: Berkeley’s Landmark Ordinance Hits the Soup By BECKY O'MALLEY

Tuesday March 07, 2006

The quasi-political operatives in the Berkeley mayor’s office placed their final salvo against Berkeley’s Landmarks Preservation Ordinance on the Internet on Friday night. For those who are interested, it can be found in the quaintly named Bates Update Update section of the city’s website. With attachments and appendixes, it’s much too long for citizens to read and comment on before the City Council votes tonight (Tuesday) to adopt it in principle; and anyway, rumor has it that Bates has the votes to do whatever he wants. City Hall insiders say that Capitelli, Anderson, Wozniak, Moore and Maio are in the bag. Doughty veteran Betty Olds is a long-time environmentalist and her own woman, so she might cast an independent vote at the last minute. Kriss Worthington and Dona Spring are the conscience of the council, though he sometimes votes with the majority if he knows his side is going down anyhow. She’s a tiger who votes her principles to the end.  

Why, exactly, do the six probable yes-voters want to gut the LPO? For those who have only the public record on which to base an analysis, it’s hard to understand. In an immortal tactic favored by politicians from Sacramento to Washington, the mayoral memo led off with five “areas of general consensus,” at least two of which are no such thing, if you rely only on what was said at the recent public hearing on the proposal to change the ordinance. And it gets worse after that. The big question: How does the Bates staff know what the consensus is?  

At the hearing, 41 of 47 speakers spoke in favor of retaining the protections in the current ordinance. The remaining speakers all had oars in the water of one kind or other—one was the attorney who fronts for most builders at the Zoning Adjustments Board. Thinking that perhaps “the other side” had submitted their opinions in written form, since they didn’t show up at the hearings, the Daily Planet made a California Public Records Act request for written materials relating to the proposed LPO revisions. We received a pitiful handful of documents, almost all communications from opponents of the changes, along with a letter saying that more documents had been withheld because of the “deliberative process exemption”—the California version of Nixonian executive privilege.  

This piqued the interest of the California First Amendment Coalition, an organization which believes that there is no such privilege: that deliberations of state and local government must be conducted in public, not behind closed doors. They put in their own request. This yielded a somewhat larger handful of papers: the same lengthy and intelligent arguments from opponents, along with just a couple of cryptic communications from the same two or three advocates for change who spoke at the public hearing.  

A cover letter to the CFAC, from Francisco DeVries, the mayor’s chief of staff, said that  

…upon learning what had been withheld, the Mayor reviewed the documents and e-mails received and determined that most of the individuals have publicly disclosed their opinions regarding the proposed Landmarks Preservations Ordinance. Thus the mayor then decided to exercise his discretion to release all communications he received from the public. 

This seems to mean that in written communications as well as in the public hearing citizen sentiment was overwhelmingly in favor of preserving the provisions of the current LPO. So why are the six prepared to vote for the mayor’s changes? The DeVries letter contains the key, for those who are able to read between the lines: 

We are … withholding four e-mails between the mayor and/or his staff and the personal handwritten notes by the mayor’s staff. These documents are exempt from disclosure … because they reflect the mayor’s deliberative process and the public interest in encouraging public officials to speak frankly and openly with their staff regarding pending matters outweighs the public interest in disclosure. 

You don’t have to have seen a recent re-run of All the President’s Men to realize that if the big-time condo builders want to lobby the mayor to get the LPO off their backs, they don’t need to write letters or show their faces at public hearings. Those “personal handwritten notes” might be records of the kind of face-to-face backroom deal-making that Bates brought with him from Sacramento—no paper trail, very clean. If we had the time and the budget, which we don’t, it might be interesting to ask for the mayor’s “sign-in sign-out” sheets (which are supposed to be public) and cross-reference them with the list of his campaign contributors and some of the major developers who have Berkeley in their sights. Of course, we still wouldn’t know for sure what they talked about.  

But let’s just take Cisco at his word: what’s been released is “all the communications” from the public. Like the speakers at the public hearing, the letter writers are overwhelmingly against the changes to the LPO. So why are the six councilmembers voting the other way? Why are they voting in clear opposition to all of the neighborhood organizations in their own districts who spoke?  

Here’s a little clue: In September of 2004 this space noted an invitation to a fundraising party for then council candidate Laurie Capitelli, which was mailed to us with an anonymous note calling it “the Developer’s Ball.” We said at the time: 

The venue was the office of former legislator and now lobbyist and consultant Dion Aroner, with co-hosts Mayor Bates and Assemblywoman Hancock. The other co-hosts were key players in Berkeley’s fat and sassy development industry: Norheim and Yost, commercial real estate brokers; Memar Properties, the new commercial vehicle for former non-profit developer Ali Kashani; Trachtenberg & Associates, architects; Hudson McDonald LLC, the new favored recipient of funding from powerhouse financier David Teece, also a funder of Patrick Kennedy; Miriam Ng, another real estate broker, and David Early, decision-maker for the Livable Berkeley pro-development lobbying organization. Mm-hmm. Looks like Berkeley’s headed for the soup for sure. 

And now, exactly as predicted, soup’s on. The Landmark Ordinance is being dismembered and tossed into the pot. Capitelli, now ensconced in a comfortable council seat, will probably vote against his neighborhood constituents and in favor of his contributors. Developers Hudson and McDonald have gotten their teeth into a horrendous project on University which will destroy adjacent neighborhoods. Early’s Livable Berkeley, right on cue, submitted one of only three letters pushing for LPO changes. The co-hosts at the Developer’s Ball are calling in their chits, and the public be damned.