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Measure J Defeated, Supporters Vow Fight

By Richard Brenneman
Friday November 10, 2006

Though Berkeley voters rejected Measure J Tuesday, backers say they’ll go back to the electorate if city councilmembers adopt the new landmarks ordinance they passed on first reading in July. 

“We already have the forms for a referendum,” said Roger Marquis, one of the two principal sponsors of the failed ballot measure. 

Measure J, which would have preserved the city’s existing Landmarks Preservation Ordi-nance (LPO), was defeated in an election that pitted big money from developer pockets and the backing of Mayor Tom Bates and a City Council majority against local preservationists, neighborhood activists and Green Party members. 

When the dust settled, the initiative had managed to garner 11,588 votes—or 42.8 percent of the total—to the 15,470 votes—or 57.2 percent for the opposition. 

An update of the LPO designed to resolve legal conflicts, Measure J was proposed by Marquis and Laurie Bright, who began gathering signatures after the council passed an alternative ordinance prepared by the city attorney’s office at the direction of Mayor Bates and Councilmember Laurie Capitelli. 

Darrel de Tienne, who represents several major developers who gave to the anti-J campaign, said the biggest reason they opposed the initiative was that they wanted to support the Request for Determination (RFD) provision of the Bates/Capitelli ordinance. 

In that new process, a property owner would hire a historical consultant from a list vetted by the LPC. The consultant would then review the property’s architecture and history and prepare a report. Once the document is filed, the LPC has two meetings, or 60 days, to move to landmark the structure. If the LPC fails to act, the public has an additional 21 days to file a landmarking petition. 

If no action is taken by the commission or the public, all further landmarking efforts are banned during a two-year “safe harbor” during which the developer would be free to proceed with a project. 

“That’s the important thing for the developer,” said de Tienne. “It means the process moves faster, which is a reasonable thing.” 

But preservationists charged that RFDs could swamp the Landmarks Preservation Commission, the council-appointed body that administers the ordinance, while blind-siding neighborhoods in a process that would deny the chance to act to save endangered landmarks.  


BBG money 

The anti-J campaign was run by Business for Better Government (BBG), the Berkeley Chamber of Commerce Political Action Committee, which also bankrolled mailers supporting two losing City Council candidates, George Beier and Raudel Wilson. 

De Tienne’s BBG-donor clients included: 

• Wareham Development—the major office and industrial builder in West Berkeley—which gave $10,000; 

• Seagate Properties, co-developer of a nine-story condo project on Center Street, with $5,250; 

• Douglas Herst, who is planning a major development at his Peerless Lighting factory in West Berkeley, with $5,000, and 

• Aquatic Park Science Center, LLC, a Corte Madera corporation formed to develop the office/industrial complex of the same name in West Berkeley, which gave $500. 

All of the funds were earmarked to oppose Measure J, and none was to be spent on the Beier and Wilson campaigns, de Tienne said. 

Anti-J donors resembled a Who’s Who of the Berkeley development community, with a concentration in firms and individuals with projects in West Berkeley, enabling the chamber PAC to spend at least $60,534 as of Nov. 3 on a barrage of opposition mailers, flyers and signs. 

Just who received their funds remains a mystery, because unlike the Measure J proponents, BBG listed only the amounts spent—sometimes even offering estimates instead of actual expeditures—without saying which firms or individuals conducted the campaign. 


Unanswered question 

There’s also a second, unresolved issue, and that involves the source of funds that bankrolled a massive telephone polling operation earlier in the year that was targeted at developing arguments identical to those later used by the chamber PAC in its campaign. 

One estimate placed the cost of that poll at more than $50,000, but no individual or PAC has claimed the expense for the operation. 

One question targeted the structure of merit bestowed on a “West Berkeley restaurant” that pollsters said had stalled a profitable development—an apparent reference to the designation of the Celia’s Mexican Restaurant building at 2040 Fourth St., the site of a proposed five-story mixed-use and condo project. 

The Celia’s designation was the subject of the first of the BBG mailers. 

The city Fair Campaign Practices Committee has opened an investigation into the poll, which was conducted by employees of Communications Center Incorporated, a 19-year-old polling firm with calling centers in Washington, D.C., Spokane, Wash., and Lakeland, Fl. 

Failure to report spending on polls conducted for political campaigns is a violation of state and city election laws. 


Measure J support 

The Landmarks Preservation Ordinance 2006 Update PAC, by contrast, took in about $18,000, with its largest contributions coming from the Berkeley Architectural Heritage Association (BAHA) with $2,500 and BAHA consultant and LPC member Lesley Emmington, who donated $1,356 and loaned an additional $4,100 to the campaign.  

Bright said a core group of about two dozen volunteers worked regularly on the campaign committee, “and members of (Berkeley’s) Green Party did a lot of work independently, raising some money and doing some of the literature. But the BBG had the bigger bucks and was able to conduct a mass mailing campaign that far surpassed the effort of Measure J. supporters,” he said. 

“I wasn’t entirely surprised by the outcome,” Bright said. “I’m a realist. I know negative campaigning works—that’s why they do it. But I’m proud we ran an open and honest campaign. I can’t say the same for them.” 

One surprise, he said, came in the absentee ballots, which reflected an even stronger negative vote than did ballots cast on election day. “I’m not sure why that was,” Bright said. 


The future 

The city councilmembers passed the first reading of the Bates/Capitelli ordinance in July, and only a second reading and vote remain. 

The real question for Laurie Bright is whether the council will simply pass the measure on second reading on Nov. 28, “or whether the chamber and the developers will pressure them to give up even more.” 

Marquis said Measure J supporters are weighing options, including a possible referendum challenge that would take the Bates/Capitelli ordinance to the public for a vote. 

Another challenge could be waged in court, in the form of a challenge to the RFD process, which Marquis said violates several provisions of the California Environmental Quality Act.