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Landmarks Measure Gets Day in Court

By J. Douglas Allen-Taylor
Tuesday August 29, 2006

A Superior Court hearing on the ballot language for Berkeley’s landmark preservation initiative Measure J will be held on an expedited basis Sept. 5 for a decision to be made by the Sept. 7 deadline for finalizing the November ballot. 

A Superior Court judge changed the hearing this week from its originally scheduled Sept. 13 date after Tom Brown, the outside counsel representing the City of Berkeley in the appeal, agreed to the new date. Brown called expediting the date “routine in these types of matters.” 

A spokesperson for Berkeley City Attorney Manuela Albuquerque said that Brown, a former Napa City attorney and staff attorney with the Berkeley City Attorney’s office, was hired because Albuquerque is tied up with a federal court brief and the assistant city attorney is on vacation. 

The judge is expected to make a ruling on the appeal immediately following the Sept. 5 hearing. 

Following the rescheduling of the hearing, Berkeley resident Laurie Bright, who co-sponsored the Measure J initiative along with Roger Marquis, said, “Now we’ll have our day in court.”  

Bright and Marquis are representing themselves in the appeal. 

Measure J seeks to amend Berkeley’s Landmarks Preservation Ordinance and Demolition Permit Application for Non-Residential Buildings Ordinance. 

Bright and Marquis requested the Superior Court to overturn the descriptive language that will appear on the November ballot after the Berkeley City Council approved the controversial language on a 6-3 vote at the Aug. 1 City Council meeting. The ballot language was written by the city attorney’s office but not submitted to councilmembers or the public until shortly before the vote. 

Councilmember Betty Olds, who voted against the ballot language, complained during the Aug. 1 debate that “City staff is continuing their line of giving us the facts so late that we don’t have time to make an informed decision.” 

The fight over the ballot language cut across Berkeley’s traditional progressive/moderate political lines. Former Berkeley Mayor Shirley Dean, one of the longtime leaders of the moderate wing of Berkeley politics, spoke at the Aug. 1 council meeting against the original ballot language proposed for the measure, and progressives Kriss Worthington and Dona Spring joined the moderate Olds in voting against it. 

In addition to Dean, mayoral candidate Christian Pecaut, Landmarks Preservation Commission member Jill Korte, former LPC member Patti Dacey and Daily Planet Executive Editor Becky O’Malley, also a former LPC member, all spoke against the ballot language, along with several members of the Berkeley Architectural Heritage Association. 

Deputy City Attorney Zack Cowan defended the ballot language at the meeting, saying, “We’re obligated to give you the full picture [on the ballot statement], warts and all, the good points and the bad points.” 

But in their appeal, Bright and Marquis charge that the ballot measure language drafted by the city attorney’s office misrepresents the measure in several instances, making it more likely that voters would cast their ballots against the measure. 

Brown has not yet filed the city’s answer to the appeal.