Editorial: This Should Not Be Necessary

By Becky O'Malley
Friday December 14, 2007

We were talking recently to our new friend, the professor visiting from Spain. We asked what her husband’s job is. He’s a sociologist, she said. And does he teach at your university? Well, he does teach some classes at night, but his day job is working for the government of a small city, about the size of Berkeley, outside of Madrid.  

How interesting, a city that employs a sociologist! Not just one sociologist either, it turns out, but a whole flock of them, perhaps five or six in all. And what do they do? They constantly survey the citizenry to find out what they want, and then the city, most of the time, gives it to them. She gave an example: You’d like the buses to run until 1 a.m.? Well sure, that’s reasonable, if enough people want it, they’ll get it.  

What about the cost? That’s what taxes are for, she says, and people don’t mind paying them if they can see the results in the services they get. The city government (Socialists, are you surprised?) has been in office for a number of years now, and seems likely to stay. 

What a concept! Actually trying to find out what the citizens want, and acting on it. Democracy is fairly new in Spain. She says it’s just taken hold in her lifetime—she was 10 years old when Franco died, and she’s 42 years old now. Perhaps the reason such responsive government seems like the Land of Oz to us Berkeleyans is that our democracy is a few hundred years old and we’ve lost the touch.  

A couple of feisty Boalt Hall School of Law alumnae did manage to get the attention of the Berkeley city government this week, the hard way of course. Elsewhere in this issue you’ll find the report of the court decision in Alameda County Superior Court holding that the Berkeley City Council’s attempt to modify developer Patrick Kennedy’s use permit for his Gaia building “was an abuse of discretion and must be struck down.”  

The council majority tried a year ago to let Kennedy off the hook for the never-delivered cultural uses that bought him two extra floors of apartments when the building went up many years ago. On Wednesday, Judge Frank Roesch said they couldn’t get away with it.  

The plaintiff on behalf of the public was Planning Commissioner Patti Dacey, and her attorney was fellow alumna Anna de Leon, who just happens to be the Gaia’s lone current cultural tenant with her Anna’s Jazz Island bistro. They’d made lengthy and varied attempts to persuade the City of Berkeley to enforce the conditions on the original use permit, but were rebuffed at every turn, which is why they finally had to resort to a lawsuit to get the city’s attention. 

Is it revolutionary to suggest that This Should Not Be Necessary? The City of Berkeley’s planning department and the city attorney’s office have been playing fast and loose with public policy for years now, and most of the recent city councilmembers, regardless of faction, have been more than happy to rubber-stamp staff schemes. The free pass for the Gaia building is just one of many questionable giveaways. The difference is that this time the wrong people were outraged, two well-educated citizens who were capable of taking their grievance to court. 

Another satisfying victory for the public was last week’s court decision that the University of California, despite its protestations to the contrary, is indeed subject to the state’s Alquist-Priolo law, which governs buildings on known earthquake faults. The exact application of the regulations has yet to be decided, but at least the UC Regents haven’t gotten away with claiming that they’re above the law. Citizens were plaintiffs in this suit too. One more time, however, This Should Not Be Necessary. 

Without a team of dedicated sociologists at their disposal, for Berkeleyans the courts have become the only real way to make their wishes known to public officials. Oh, we do have elections, of course, though not as often as we used to. In a slippery move, not noticed much at the time, councilmembers extended their terms from two years to four.  

Four years is time enough to do considerable mischief. Is it any wonder that there’s now a plan afoot to recall some or all of them, especially the mayor?  

Someone copied the Planet on the e-mail invitation to the organizing meeting for recall supporters, and it was fascinating reading. It’s almost impossible to imagine all of the people on that list in a room together, but the meeting seems to have happened on schedule. Those I’m acquainted with have had many different problems, but most of their complaints against the city officials can be boiled down to one central problem: favoritism, to the point of bending or breaking the zoning laws, toward rich and powerful developers. The richest and most powerful developer of all is the University of California, of course, so many on the list are united by their outrage at the city’s settlement with UC over its Long Range Development Plan.  

Another solution being talked about in civic circles is the necessity of reforming the Berkeley City Attorney’s Office. The former head of that office promoted or at least permitted a culture of contempt for citizen action, and though she’s now gone, those she hired (including Zach Cowen, Esq., defense lawyer in Dacey et al. vs. the Berkeley City Council) are still in place. If a thorough housecleaning doesn’t take place, Berkeley should perhaps join Oakland and San Francisco in electing its city attorney.  

Or we (the people) could ask the council to hire a team of sociologists to ask us what we want, and then make sure that it happens. Oh sure. Lawsuits seem more likely to succeed. 

Attorney de Leon, a former School Board president, has in the last few years been retired from the practice of law, putting her considerable energy into running her jazz club. She switched her California Bar membership from inactive to active to take this case, and she seems to have enjoyed the experience. She’s been heard to say that if the only way to regain citizen control of public policy is by filing “abuse of discretion” lawsuits when flagrantly illegal actions take place, she might be up for taking some more cases. If she means it, watch out.