Public Comment

Commentary: Measure J Initiative Was Anti-Democratic

By Adam Block
Tuesday November 21, 2006

Initiatives and referenda are often viewed as the purest forms of democracy, removing issues from the control of fallible legislators and placing them directly before the electorate. (An initiative is newly drafted legislation submitted directly to voters; a referendum is a popular vote to overturn legislation already passed.)  

Unfortunately, these democratic tools can also be misused, as the Measure J situation demonstrated. In a clear case of anti-democracy in action, initiative backers sought to supersede six years of community dialogue and compromise. While anti-growth activists repeatedly referred to Landmarks ordinance revisions under consideration by the City Council last summer as “the Mayor and Councilman Capitelli’s draft,” that is a distortion. In fact, the revisions are the product of extended discussions between homeowners, preservationists, businesspeople, and City planning staff dating back to 2000. The output of that discourse is balanced legislation that was endorsed by a broad majority—including Landmarks Preservation Commissioner Carrie Olsen, not known as friendly to developers. With Measure J’s defeat, this compromise ordinance will soon be back before the City Council for a second reading.  

In a recent Planet article, Measure J co-author Laurie Bright warned that having lost the popular vote by a healthy 15 percent margin (a greater margin than 13 of the last 17 presidential elections), he was now considering a referendum on the compromise legislation. That is, after being soundly defeated in his effort to anti-democratically trump the intentions of a diverse array of Berkeley stakeholders, he now hopes to anti-democratically trump the will of Berkeley voters at large.  

In order to get a referendum on the ballot, Mr. Bright and his cadre of supporters must collect roughly 4,000 signatures. That’s a significant number, but might be achievable if they reuse the scare tactics deployed in the last election, which suggested that a “No” vote on Measure J would mean quick demolition of every Julia Morgan and Bernard Maybeck in the city. And it’s well established that repeated votes on the same issue favor extremists: partisans are more likely to vote in downstream elections while the moderate majority opts out, believing that they have decided the matter already.  

There is a deep irony here. One of the anti-growth extremists’ complaints about the compromise Landmarks legislation once again before the City Council is its inclusion of the “Assessment of Historical Significance” (AHS). The AHS rules allow a property owner to request a historic review from the Landmarks Preservation Commission (LPC) without first submitting a zoning application. This makes financial and procedural sense: why should a homeowner waste thousands of dollars on architectural plans and permit fees—and consume scarce city planning staff time—if the improvements they wish to make to their home will be later denied by the Landmarks Commission? Measure J backers claim that “developers” will sneak AHS requests past neighbors, who without a pending project won’t be motivated to defend the property in question. In other words, developers will count on citizen apathy to win demolition rights they couldn’t win after open discussion. Of course, this hypothetical apathy is the same that anti-growth activists must leverage to win any referendum. (In any case their argument is entirely specious. AHS requests have the same notification requirements as regular zoning applications: property owners must erect a signboard and send postal mail to all neighbors. And every AHS requires a public hearing.)  

A successful referendum would return the Landmarks ordinance to the status quo, a status quo the six-year revision process aimed to improve. Recall that back in 2000 the City Council requested a review of the ordinance in response to a spate of complaints about LPC malfeasance. In a number of instances commissioners “protected” properties with no historical merit in order to block development, when the city’s other land-use processes were not expected to generate the outcome desired by anti-growth extremistsor hostile neighbors. Most citizens would agree that the crumbling retaining wall on Le Conte, the overhead pipelines stretching across Fourth Street south of Gilman, and the Spenger’s parking lot do not merit protection, but in each case a property owner’s rights were abridged in the interests of an agenda outside the LPC’s mandate.  

The pre-revision Landmarks Ordinance also does not require the commission to adhere to state standards of historical integrity (California Code of Regulations Title 14,§4852), standards widely accepted by architectural historians for assessing whether a property is worth preserving. Measure J backers left this requirement out of their initiative language, and don’t want to be constrained by it now. But without such guidelines, an activist commissioner or an antagonistic neighbor can find “historical validity” in just about any wall, dirt patch, or derelict structure. And when just 25 homeowners can initiate the creation of a “historic district” that constrains an entire neighborhood, the potential for abuse is high.  

Measure J promoters hoped to act as spoilers, suppressing for their own narrow interests the outcome of an inclusive community process. It is therefore gratifying to see that Berkeley voters were not fooled by the scare tactics used to support Measure J and soundly rebuffed an attempt to smother true participatory democracy. A referendum on the compromise ordinance would be just one more bite at the apple for a small but noisy group that demonstrably fails to represent the interests of most citizens and seems to reject the civic spirit of Berkeley. 


Adam Block is a Berkeley resident.