Public Comment

Commentary: Common Sense — in Berkeley?

By Sharon Hudson
Tuesday May 29, 2007

How can people live together best? Is it by owning things and working individually, or by sharing things and working together? The 20th century preferred owning, but the 21st century will have to do more sharing—even in a nation blessed with an abundance of space, resources, and wealth.  

Recently, the California Studies Association hosted a conference called the “Crisis of the California Commons.” The conference gave me an interesting perspective on Berkeley’s land use struggles. 

Broadly, “the commons” is any space or resource that is shared, or used in common, by a defined user group (usually the public, or commoners). The traditional commons includes tangible public spaces like parks, roads, and waterways, accompanied, increasingly, by the means to use those spaces (disabled access, bathrooms, etc.). The commons also includes some provisions of nature: the air we breathe, the water we (or our crops or livestock) drink, greenspace, some energy sources, and perhaps species and genomes. It includes semi-tangible resources, such as the visual commons (views) and the auditory commons (“earspace”), and certain cultural commons embodied in physical form, such as historic buildings. And finally there are the intangible cultural commons: the information or knowledge commons, the legal commons, the moral commons—the entire shared and used database of ideas accumulated over human history.  

History reveals a continuous tug-of-war between the expansion and the “enclosure” of the commons. Humankind started out with more in common and less in private, but over time the feudal aristocracy managed to enclose, constrain, or privatize ever more spaces; later, materialism and capitalism continued to commodify resources. These days, more privatization is the agenda of the right, and more “commonism” has been the agenda of the left. Major expansions of the commons have included the Magna Carta, the Bill of Rights, the French Revolution, the Bolshevik Revolution, the New Deal, and the Environmental Protection Act. In contrast, perhaps because taking things away from the majority is difficult, enclosures of the commons are rarely so cataclysmic. They are usually quiet, even covert, and incremental (like the privatization of the university or the penal system), and/or very slow (like the conquest of the New World). Hitler’s Enabling Act, the Reagan Revolution, and the Patriot Act are remarkable exceptions. 

The public uses the commons, but often the public does not own or control them. They may be privately owned (like media), or public-private partnerships (like private museums, telecommunications, some transit). Politically speaking, the commons are anything a given group of people thinks they are and can successfully claim and defend. Thus the commons are as much psychological as physical, and once the public has appropriated the “space,” it may be politically impossible for the “owner” to retrieve it. This is why the university wants to keep the Memorial Stadium Oak Grove from following People’s Park into the public’s affections. Conversely, private property is that which a given group can successfully keep for themselves, out of the commons. Some may insist that property ownership is the “natural state” and that the commons is the encroacher, but the point is to constructively balance the private and the shared. 

Finally, a successful commons must have several critical features. First, it is a negotiated resource or space; it is not a free-for-all space in which users can do anything they want. Second, it is not a space that is available “by right” to those outside the defined user group. Without these rules, the powerful, greedy, needy, or uncivil will inevitably monopolize, abuse, or use up the commons. So ignoring these two vital conditions destroys the commons. Third, the commons is not a serene, utopian place where “we can all just get along”; it is often a contentious space and one that is renegotiated as needed. Finally, the commons is a space that requires constant protection and, in crowded conditions or under high demand, it requires considerable proactive caretaking. 


Privatization permits 

Society has negotiated rules limiting private property rights impacts, both upon other private property and upon the commons (greenspace, parking, views, etc.). Zoning ordinances embody these rules. Use permits (and state density bonus concessions) create exceptions to these rules; they effectively turn bits and pieces of the commons over to private citizens (developers). For example, if the prescribed building height is 30 feet, and a developer gets permission to build to 40 feet, he has taken for his own use 10 feet of the commons, intended to provide others with light and views, to limit overcrowding, etc. Therefore, use permits constitute incremental privatizations of the commons. So do violations of our area plans, although the largest recent privatizations in Berkeley have come from the state density bonus law. The planning staff’s eagerness to expand zoning exceptions and bonus concessions, and to “renegotiate” area plans, are all perceived by us simple commoners as a violation of the public trust, because staff is irrevocably privatizing the commons, rather than protecting them—and us.  

The rationale for reducing the commons is that the privatizations are offset by some public benefit, such as more housing. But Berkeleyans are increasingly skeptical: Is the “benefit” really public, or private? And is increased population really a benefit? Additionally, to assess the tradeoff properly, we must recognize both the increased value of the commons and the expanding umbrella of the commons, under increasingly dense living conditions. For example, Berkeley’s back yards are not merely private property but also part of our common livability, our common wealth.  

When part of the commons is given away through a use permit, often conditions are placed on the use permit in order to reduce the damage to others. For example, a developer may be permitted to provide less-than-prescribed parking, but only under the condition that he provide valet parking to maximize his spaces. But usually within months the conditions are forgotten, causing unintended further encroachments on the commons. Generally the violations continue for years, because there is no functional system by which the City of Berkeley takes care of the commons. So eventually some citizen has to notice, investigate, and file a complaint. Then the city usually either ignores the complaint or “legalizes” the encroachment. This is another betrayal of the city’s obligation to protect the commons.  


The unruly commons 

Permissiveness is deadly to the commons. For example, let’s say one resident of a rooming house, Booming Bob, likes to play his music very loud. Studious Susan’s right to quiet in her own room should be honored because Bob’s actions cannot violate Susan’s equal right to enjoy her room. But what if Bob’s music goes into the living room, the common space?  

Some (negotiated) rules protect users of the common space from Bob’s music, but who enforces them? Does each wannabe user of the common space have to ask Bob to turn down his music? Or what if nobody is in the common space? Or what if only Amiable Amy, who doesn’t mind Bob’s music, is in the commons? Then can Bob play his music loudly? Common sense says, “Yes: no harm, no foul,” but “commons sense” says, “No.”  

Let’s say that Susan wants to use the common room. Although theoretically protected by the rules, she has to ask Bob to turn down his music. So she has to alienate Bob just to assert her standing right to the commons. Or worse, when Shy Sheldon wants to use the commons, he doesn’t confront Bob, but retreats to his room and loses his access to the commons entirely. Bob’s encroachment on the commons has placed undue burdens of labor, ostracism, and risk of retaliation on Susan and disenfranchised Sheldon. Therefore, commons rules (e.g., laws) almost always apply even when nobody else is there, so the commons is always ready for appropriate use by anyone. Individuals should not have to either renegotiate or personally enforce their legitimate rights every time they want to use the commons.  

Before long, Susan and Sheldon move out and Dancin’ Donna and Ravin’ Randy move in. Eventually the neighbors of the rooming house also move away. Thus a single uncivil individual, Bob, helped by tolerant Amy and silent Sheldon, eventually destroys a neighborhood. In Berkeley, uncivil behavior has destroyed numerous commons, including most of Southside. 

Some crimes must be reported by witnesses or victims, but whenever possible, designated authorities should protect the commons proactively, without waiting for complaints. Relying on complaints is unethical and ineffective. If Susan reports the problem to the house manager and he doesn’t want to act, he will marginalize Susan—“complainer,” “troublemaker,” NIMBY. This is a standard bureaucratic response, especially in Berkeley. But the rest of us should thank the Susans and the much-maligned NIMBYs and “complainers” among us, because in the absence of municipal stewardship, they are the only ones protecting the commons. 

Our laws are the rules of the urban commons, and it is the job of the city staff (not Susan) to enforce them. Every time the city fails to enforce, it diminishes Berkeley’s commons. Recently, neighborhood groups had to sue a drug house (in south Berkeley) and a rooming house (in Willard), because the city allowed these house residents to destroy the neighborhood commons. In economic terms, allowing private user groups to steal neighborhood security and civility—its livability—is another form of privatization. In social terms, it’s slummification. 


Honey, I Shrunk the Commons! 

When people acquire new rights, it expands the commons. Every right requires and produces a corresponding system, or space, in which everyone can exercise that right. That system (which includes philosophical, legal, and physical components) becomes part of a people’s shared cultural resource—their commons. And once a group has enjoyed a new space for a while, they are loathe to give it up.  

In 1973, the Landmarks Preservation Ordinance (LPO) gave the public two new rights: (1) the right (through our representatives) to save individual, privately owned historic resources based on certain values; and more profoundly, (2) the right to decide those values for ourselves—to define our own identity and historical commons. This right is supported by public initiation of, and participation in, the landmarking process, which contributes to the community’s cultural self-discovery.  

Last year, the mayor and some developers attempted to create a loophole in the LPO, through which developers could more easily remove historic buildings from the commons. More insidiously, private consultants hired by developers would do more of our historical evaluations, thus encouraging the privatization of how Berkeleyans define our history. But the developers’ “definition” of us almost always reflects their commons-reducing agenda. Outraged supporters of the cultural commons temporarily blocked the mayor’s loophole through referendum. 

Outrage was also the response the year before when the mayor and City Council secretly capitulated to the university’s long-range development plan. The university is by far the greatest commons abuser in Berkeley, with parking, traffic, noise, litter, and indirect crime impacts, and freeloading on city infrastructure. But instead of taking this rare opportunity to reclaim some of its commons, the council gratuitously gave the university a free pass to massively increase its encroachment, betraying the municipal commons (and taxpayers) utterly. 

Progressivism normally advocates expanding the commons, not privatizing them. A truly progressive vision, which created the Neighborhood Preservation Ordinance and the LPO, is grounded in community and mutual respect. This is well suited to interconnected life in a small, dense city, and anticipates the urban needs of the 21st century.  

But our political “leaders” are elsewhere. The mayor undermines the LPO and negotiates development deals behind closed doors. The council cedes our town to the university. The Zoning Adjustments Board gives away use permits like candy. The city staff fails to protect our livability. These represent an incremental but massive giveaway of the commons. If this is “Progressive,” the party has definitely pooped. 

Neighborhood activists understand that any civilized urban future must be one with more in common. I urge City Hall to stop wagging the tail of the 20th century. Instead, please help us prepare for a livable future by honoring our commons.