Public Comment

Commentary: Mark Rhoades: Just Following Orders?

By Sharon Hudson
Friday August 24, 2007

Becky O’Malley’s Aug. 10 editorial, “Planners Come and Go, But the Department Never Changes,” blamed departing city planner Mark Rhoades’ malodorous planning style on three factors: the loss of municipal revenues created by Proposition 13, policies set by Rhoades’ bosses, and the natural tendency of regulatory agencies to be hijacked by those they regulate.  

While her points are well-taken, Ms. O’Malley inaccurately minimized Mr. Rhoades’ personal culpability, implying that “the system” is so corrupt that individual actors bear little responsibility for their roles in it. This is not only untrue and harmful, it is also offensive to every honest person in the world, because we all live within systems that reward dishonesty, but most of us act ethically nonetheless. 

The Planet’s Aug. 17 front-page story, “Controversial Planner Hailed On Departure,” was also an odd choice. An incestuous handful of developers and parasitic consultants bemoaning the loss of “their boy” in the planning department is no more than a “Dog Bites Man” story. The “Man Bites Dog” story was that over a hundred victims of Rhoades, from all kinds of neighborhoods and political backgrounds, attended another party to celebrate Rhoades’ departure. Rarely is a municipal employee is so unpopular that his departure causes public celebration. So that’s the news. 

Ms. O’Malley correctly wrote that Mr. Rhoades “[tried] to evade the public will by any means necessary,” which is supported by Rhoades’ own words at the developer party. This was Mr. Rhoades’ personal ethical choice, fueled by his personal planning ideology. I do not accept the Nuremburg Defense: “I was just following orders,” revived by Ms. O’Malley as “Prop. 13 made me do it.” Nor do I accept the notion that Rhoades was simply taking orders from the City Council or his bosses. He was an eager, proactive policy maker.  

Mark Rhoades was proud to be a self-described “change agent.” He helped write a 2003 want ad for planners, promoting Berkeley as a place “where planners set the pace,” and where they could test their “New Urbanist” philosophies. At the time, I wrote that Berkeley citizens, the City Council, and their land use commissioners might be surprised to learn that it is not they, but our staff planners, who “set the pace” in Berkeley.  

Mark Rhoades was a “smart growth” extremist who “set the pace” by helping developers maximize building sizes. Density—not protection of the public, nor obedience to the law, nor creating a livable city—was his goal. “Creative” interpretation and selective enforcement of laws and policies was his method. When a development project came his way, Rhoades twisted the zoning ordinance and other applicable laws beyond all recognition to permit the largest possible project. Then he smoothly “sold” his interpretation of the law to the Zoning Adjustments Board and later—upon inevitable appeal—to the City Council. The new interpretation then became policy by this precedent.  

Rhoades knew that the best time to control a project was at the beginning, not the end. At the end, it was difficult for the council to turn down a project, even when displeased with aspects of Rhoades’ handiwork. So the council ratified Rhoades’ policies ex post facto by approving these projects. But this project-based policy making was consistently “Rhoades-up,” not “council-down.” When Rhoades became too “creative” for the council, he easily outmaneuvered them. After all, Berkeley taxpayers paid him handsomely to figure out how to do so, while council members are paid a pittance to represent the people.  

So Rhoades was a clever, disarming, and energetic ideologue who made policy by taking advantage of a philosophical and power vacuum left by an underpaid and inattentive City Council and overworked, amateur commissioners. He needed nothing more than that, but he had more.  

More than a few council members were happy to allow Rhoades to make policy when it served their favored developers. Without Rhoades, they would have had to change the laws themselves by the normal, unpleasantly public, and oh-so-time-consuming democratic process. Rhoades was able to create land use policy quickly, behind the scenes, without public process. This is why Rhoades was unusually popular (and chummy) with the big developers and their “smart growth” allies.  

Rhoades’ most tangible legacies are his abuse of the state density bonus law to create huge, neighborhood-busting buildings, and a downtown full of small, low-quality units occupied by students. Rhoades’ less visible legacy is the loss of trust between citizens and their government. His actions tainted other departments and greatly reduced taxpayers’ willingness to support the city. He also leaves behind junior planners following in his slippery footsteps, and a flock of imperious developers who have grown both rich and accustomed to having their interests placed above the public good. Both will be hard to reform or remove.  

All residents of Berkeley, except those few large developers, were losers during Rhoades’ tenure. Everyone suffers from loss of the commons, loss of good housing and demographic diversity, loss of historic resources, loss of respect for the law, loss of trust in government, and loss of tax dollars on appeals and lawsuits. Those near developments also suffer loss of livability, views, open space, greenery, parking (both commercial and residential), and community. The lives of neighborhood leaders are devastated. This too impacts everyone, because time spent fighting bad planning is not spent contributing positively to the city.  

Yes, the council committed a crime against the people of Berkeley by allowing a renegade planner to abuse the citizens of this town for ten years, although the ratio of negligence to complicity on the council is hotly debated. And senior planning staff were also happy to let Rhoades do the work and take the heat. But regardless of the winks and nods that come from above, adult human beings and public servants are responsible for their own integrity. Let history provide a lesson:  

In 2001, a Southside institution wanted to build a six-story building with two floors of UC Extension classrooms in our residential neighborhood. Naturally Rhoades supported this with his full bag of tricks. When it came to light that this new building would be a huge expansion of an illegal use, within a history of illegal uses, Rhoades spontaneously invented a little piece of “law” to persuade the ZAB to ignore the illegalities, and continued to support the project vigorously. Eventually Rhoades’ little crusade was ended by the council, the legal staff, and Dan Marks—after Rhoades had made losers of everyone: the institution he misled, the neighborhood he betrayed, and the taxpayers who paid for it all.  

Compare this with the actions of the zoning officer who held Mr. Rhoades’ position from 1962 to 1982, Robert Humphrey. Mr. Humphrey respected and protected the community. On the several occasions over the decades when Humphrey became aware of similar (but smaller) violations by the institution in question, he forced the institution back into compliance with its approved use. He administered the law; he did not make it, flout it, or ignore it to suit his personal goals.  

The baseline for ethical public service is to work for the people and implement the law. Planners like Mark Rhoades give us less under pretense of giving us more. Berkeley should not tolerate it.  

Ms. O’Malley is correct: Rhoades is more a symbol than a cause of what is wrong with Berkeley city government. But we must look not only at how systems shape individuals, but at how individuals shape systems. The bottom line is that the big developers toasted Rhoades, while hundreds of regular citizens just like the readers of this newspaper were irreparably damaged by him, while being forced to pay his salary. That sums up both the man and the system. 


South campus resident Sharon Hudson is an advocate for improving urban quality of life.