Editorial: Getting WMD’d in Berkeley

By Becky O’Malley
Friday July 14, 2006

In the go-go era in Silicon Valley in the 1980s, we used to have a saying: “If you look around the table and don’t know who the sucker is, it’s you.” This has never been more apparent than in the outcome of the protracted discussions over the development industry’s long struggle to de-fang Berkeley’s hallowed Landmarks Preservation Ordinance, which appears, temporarily at least, to be successful.  

You have to admire Mayor Tom Bates’ Sacramento-honed skill at the old shell game. Spectators at Tuesday’s City Council meeting got a preview of it when he managed to sequentially vote first to put funding for a new warm pool on the November ballot and then to take it off again before pool users knew what had hit them. And the way he ended up with a new LPO draft which does exactly what his developer cronies have demanded for six years was quite impressive. 

He (and his minions Cisco de Vries and Calvin Fong, personal political staff paid out of the city budget) used the tried and true maxim of the Roman Empire, divide et impera, divide and conquer, further perfected by the British Raj. A few self-identified preservationists were invited to go mano-a-mano in the mayor’s office for a series of “I feel your pain” sessions. Notably excluded was Landmarks Preservation Commissioner Patti Dacey, whose legal training makes her too clever by half to believe the spin which routinely emanates from city staff. (And just to make it more emphatic, the mayor’s buddy Max Anderson, his partner in the sleazy Ashby BART condo proposal, dumped Dacey from the commission.)  

Flattery will, of course, get you everywhere. The selectees soon succumbed to the Stockholm Syndrome, swallowing the city attorney’s thoroughly bogus legal premise that there’s some kind of unbridgeable conflict between Berkeley’s existing LPO, the Permit Streamlining Act, and the California Environmental Quality Act.  

This theory is the Weapons of Mass Destruction of the LPO controversy: a phony excuse for turning the whole law upside down and starting over again, even though it’s been shown time and again not to be true. The two lawyers on the LPC in recent memory, Dacey and myself, have been saying for years that it’s a fake, and it’s now been demolished once and for all by a thorough discussion in a new (2006) Continuing Education of the Bar handbook on land use, cited by famed environmental attorney Susan Brandt Hawley in a letter read at Tuesday’s council meeting. And the poor preservationists who were suckered into making their deal with Bates are playing Congress’ role vis a vis the WMD story: “We didn’t knew it wasn’t true when we supported the invasion.”  

From day one of this long process, the developers have only wanted one thing: a “safe harbor” for their demolition desires. They’ve gotten it in this new draft: There’s a two-year period after a building has been evaluated when it can be demolished on demand—slam, bam, thank-you-ma’am—even if new evidence about its historic significance comes to light. There are a lot of other bad features of the new law, but this is the worst. It’s the pea under the shells, and the negotiators missed it as Bates’ et al did their sleight-of-hand.  

The self-designated preservationists who allowed their good names to be used supporting the Bates ordinance perhaps will defend themselves saying that they did not understand the proposal. But it’s not a coincidence that in the hardy band of 30 or 40 jeering opponents in the back of the council chamber as the deal went down on Tuesday were at least six who had passed either the New York or the California Bar. They at least understood full well that the new law is a dirty deal. Shakespeare’s villains famously said “First, let’s kill all the lawyers”—if you’re up to no good lawyers have a nasty habit of getting in the way.  

One of them offered this analogy: First, you propose a law saying, for example, let’s kill all the vegetarians. Then after, a protracted period of negotiation when all the liberals are listened to sympathetically, you agree simply to put vegetarians in jail for life. It’s “a compromise” for sure. But is it a victory for vegetarians? Not exactly.  

The principal harm which this new law will do is in Berkeley’s flatlands neighborhoods. No one is yet proposing to demolish old houses in upscale hill neighborhoods to build Condo Pop-ups, but if you live in the flats, one may be coming soon to a property near you—ask the people on Otis Street or the neighbors of the infamous South Berkeley Flying Cottage. People in the flats don’t have many architect-designed landmarks in their neighborhoods, but they love their funky little Victorian “structures of merit” anyhow.  

That’s why Dacey (an old tenants’ rights veteran, Maudelle Shirek appointee and now co-owner of a flatlands Victorian) objected so strongly to the new law when she was on the Landmarks Preservation Commission. But now the LPC has been packed with pro-developer appointees, and right on cue it voted last week to support the new draft. 

Jill Korte, Dona Spring’s appointee and the only flatlands dweller on the commission, voted no. But Max Anderson replaced Dacey, just in time for the vote, with patrician architect Burton Edwards, who owns an elegant John Galen Howard home in the Claremont Park district. Three more of the eight current LPC commissioners live within blocks of Edwards in upscale parts of District 8. Their homes are not threatened in any way by the Big Ugly Building boom. Four of the eight current commissioners make their living in the building industry: three architects and realtor-developer Miriam Ng, recently appointed by Councilmember Darryl Moore although she doesn’t live in his flatlands district.  

What can be done now? Well, an initiative re-enacting the old pro-neighborhood LPO is on the ballot for November. For belt-and-suspenders protection, it would also be possible to put a referendum repealing the new law on a later ballot if enough signatures can be collected soon. But in both cases there’s no legal limit on developer campaign contributions, so a lot of guaranteed Dirty Money is sure to be involved.