Features

Rejected by the mayor and the Berkeley City Council’s agenda committee Monday, competing proposals for a new city density bonus ordinance are back on the schedule for Tuesday night’s meeting. 

Mayor Tom Bates, following recommendations from city Planning and Development Director Dan Marks, said there was no need to rush either of the measures through, dismissing the impetus cited by the Planning Commission for adopting a new city law before the statewide election June 3. 

Gene Poschman had urged his commission colleagues to pass an ordinance so a city law would be in place in case Proposition 98 passed. The vaguely worded state measure would limit eminent domain actions, but critics say it could do far more—potentially stripping state and local governments of their powers to create new land use regulations limiting development. 

On a 5-4 vote April 9, the commission endorsed a set of recommendations drafted by a special subcommittee formed of members of the Zoning Adjustments Board and the Planning and Housing Advisory commissions. 

The subcommittee started because of concerns of Zoning Adjustments Board members about the scale and mass of mixed use projects on the city’s major thoroughfares, which city staff told them they had no choice but to approve.  

The council later added members of the two other commissions, and the subcommittee’s report was forwarded to planning commissioners before the 2004 general election, when Prop. 90, a more explicitly draconian predecessor to Prop. 98, was on the ballot. 

Commissioners rejected the subcommittee proposals in favor of a more developer-friendly city staff alternative. Both versions included a sunset clause that would render the law void if Prop. 90 failed—as it did. 

The commission wasn’t able to come up with a permanent ordinance in the intervening months, so Poschman pushed for a repeat of the 2006 effort, with two versions to be sent to the council, both with sunset provisions. 

But during the April 9 meeting, he convinced a majority to recommend the subcommittee version, on the grounds it would give the council more flexibility for creating a revised version should Prop. 98 pass. Commission Susan Wengraf, who had chaired the subcommittee, cast the decisive vote. 

To make it onto the statute books before the June election, a density bonus ordinance needs two hearings, making the upcoming session Tuesday the last date to start the legislative ball rolling.  

But the mayor dismissed the need for action, and none of the other members present objected to his call. 

Councilmember Dona Spring said she tried to get City Manager Phil Kamlarz to list the item on the agenda, but, she said, he wouldn’t put anything on the ballot without the approval of the agenda committee, even with a Planning Commission vote asking the council to take up the issue. 

“I and Kriss Worthington and Betty Olds have been trying to get it on the agenda for the April 22 meeting,” said Spring Wednesday afternoon. “So far Tom has us stymied.” 

But all that had changed by Thursday morning, after Councilmember Linda Maio intervened. 

It was Maio, who had gone along with the mayor’s decision to keep the Planning Commission’s referral off the agenda, who later made sure that the measures were restored to the agenda by agreement between Bates and Kamlarz. 

“We’re glad she changed her mind,” said Jesse Arreguin, Housing Advisory Commission chair. 

While current polls show Prop. 99, an alternative and less draconian measure, leading Prop. 98 in the polls, there’s big money behind 98 and, Spring said, “that can do a lot to change things in a month before the election.” 

Arreguin agreed. “They have a huge war chest and a lot can change in a few weeks,” he said. 

The housing activist said he is working with others to develop a campaign against Prop. 98 in Richmond, El Cerrito and other cities that don’t have organized campaigns against the measure, and a Berkeley group is also being formed by Rent Board Commissioner Lisa Stephens.  

Both 98 and 99 purport to limit the power of state and local governments to seize private land by eminent domain, banning its use to aid private developers. A U.S. Supreme Court decision which upheld the use of eminent domain to take homes in New London, CT, to build a shopping mall was the catalyst for the recent string of ballot measures.  

One famous beneficiary of eminent domain actions is George W. Bush, who helped engineer an eminent domain action in Arlington, Texas, to seize private land to build a stadium and entertainment complex for the Texas Rangers baseball team. Bush’s personal fortune was made when he later sold his interest in the club. Eminent domain has frequently been used to assemble parcels for sports facilities. 

But Proposition 98 is accused by opponents of going much further than needed to save private homes, setting in place mechanisms for eliminating all vestiges of rent control in the state. Those provisions have produced cash for its campaign coffers from landlords and their lobbyists, another concern for housing activists like Arreguin. Critics also charge it could be used to block water projects. 

Councilmember Kriss Worthington said that according to the council’s own rules the agenda committee never had the power to dismiss the Planning Commission’s request. 

“The committee does not have the power to stop a recommendation of a city commission from appearing on the agenda,” he said. “Even if they voted unanimously, they have no power over an item from a commission.”