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Council Sends Landmark Initiative to Ballot

By Richard Brenneman
Friday August 04, 2006

On two 6–3 votes, the city council Tuesday endorsed ballot language and a legal analysis that backers of a landmarks ordinance initiative said misrepresents their proposal. 

Councilmember Betty Olds, who dissented along with Kriss Worthington and Dona Spring, said she was particularly concerned that the council was voting on language they’d just been given. 

“City staff is continuing their line of giving us the facts so late that we don’t have time to make an informed decision,” she said moments after Mayor Tom Bates had gaveled the session to an end. 

“(Deputy City Attorney) Zac Cowan made so many changes, it’s hard to tell what we were voting on. This is not being very transparent.” 

The language in question will face voters when they decide in December whether or not to vote for what is now officially described as the “Landmarks Preservation and Demolition Permit Applications Ordinance.” 

Tuesday night’s vote followed a public comment session in which every speaker criticized Cowan’s proposed language for the text that will appear on the ballot itself and for the city attorney’s “impartial analysis” that will be distributed in the voter information booklets that will be sent to all registered voters. 

Speakers included Laurie Bright and Roger Marquis, the two principal sponsors of the initiative, former Mayor Shirley Dean, mayoral candidate Christian Pecaut, Landmarks Preservation Commission (LPC) member Jill Korte, former LPC members Patti Dacey (recently ousted by Councilmember Max Anderson) and Becky O’Malley (Daily Planet executive editor), as well as several members of the Berkeley Architectural Heritage Association (BAHA). 

The critics charged that Cowan’s language aimed to put a negative spin on the ordinance, and failed to mention the law’s positive impacts. 

John McBride, a BAHA activist, argued that Cowan erred in his analysis by warning that the city might be sued in the event both the initiative and Proposition 90, a statewide ballot measure, are approved in the November elections. 

Cowan wrote that the city could be sued for any loss in property value if Prop. 90 passes, a measure billed as barring eminent domain actions by governments that seize land for private development. 

Lesser-advertised provisions of that measure also allow suits for any government actions, other than those conducted for public safety and welfare, that result in diminished property values. 

“We are speculating on a possible law,” said McBride, arguing that the analysis should only focus on existing statutes. 

Dean, who at the time of the meeting was considering a possible run against Mayor Tom Bates, said the council’s actions were “the most unbalanced and unfair I’ve ever seen.” 

Three votes followed. 

First, given the legally mandated choice of adopting the initiative language themselves or sending it to the ballot, the council voted for the latter option, with Kriss Worthington dissenting. 

Next came a vote on the ballot language, the maximum-of-75-words descriptive text that appears on the ballot itself. 

Cowan’s language was adopted, along with a minor tweak drawn from an alternative proposal submitted by BAHA. 

That language was passed on a six-three vote, with Olds issuing a stinging dissent: “I have never from the time I have been on this council seen anything come before us at the last second like this. My poor old brain has a hard time wrapping itself around this. It’s all a mess. We should have allowed the people more time” to comment. 

More debate followed about the analysis language, with two more minor tweaks. 

Questioned by Gordon Wozniak, Cowan said he was legally obliged to include the caution about the potential impacts of Prop. 90. “We’re obligated to give you the full picture, warts and all, the good points and the bad points” said the lawyer. 

Finally, on another 6-3 vote, the analysis was accepted. 

A copy of final versions of the ballot language and the analysis, as well as the initiative itself, is available on the city’s web site at  


Arguments coming 

The next stage for proponents and opponents is the drafting of the arguments that will accompany the analysis in the voter pamphlet. Drafts with a maximum of 300 words must be submitted to Acting City Clerk Sherry Kelly today (Friday). 

Once Kelly verifies that they fall within the length requirement, the drafts are then sent to the opposing sides, which will have until next Friday to draft a 250-word rebuttal. 

Following a public comment, the final drafts must be submitted to the Alameda County Registrar of Voters by Aug. 24, said Bright, who was busily drafting the proponent’s version. 

Bright said he doesn’t know who will draft the opposing version. “The names of both sides are kept confidential,” he said. 

Bright said he expects someone from the council to prepare the opposition draft, given that the same 6-3 majority in Tuesday’s votes had approved the first reading of a rival landmarks ordinance from the mayor and Councilmember Laurie Capitelli.