Council Considers Legal Action Against Proposed Anti-BRT Ballot Initiative

By Judith Scherr
Monday July 07, 2008 - 04:56:00 PM

At a special closed-door session at 6 p.m. Tuesday, the Berkeley City Council, on the advice of its attorney, could vote to go to court to stop a proposed ballot measure that would “require voter approval before dedicating Berkeley streets or lanes for transit-only or HOV/bus-only use.” 

The executive session begins with public comment in open session in the City Council Chambers. 

The proposed ballot measure targets the Bus Rapid Transit (BRT) proposal from AC Transit. It calls for dedicated bus lanes in city streets between San Leandro and Berkeley. In Berkeley, BRT would go down Telegraph Avenue and parts of Shattuck Avenue.  

BRT opponents, who initiated the proposed ballot measure, say the dedicated lanes would clog neighborhoods with Telegraph Avenue traffic and, in the end, be bad for the environment. BRT proponents say the measure would get people out of their cars and into buses. 

The ballot measure is also before the council at its open session, scheduled for 7 p.m. At that time, the council could vote to place the proposal before the voters. As part of the regular ballot process, the city attorney’s office writes an “impartial analysis” that will accompany the measure on the ballot. 

Acting City Attorney Zach Cowan—who called the closed session—authored a scathing critique of the ballot measure proposed by Dean Metzger, president of the Claremont-Elmwood Neighborhood Association and Bruce Kaplan, owner of Looking Glass Photo on Telegraph Avenue. 

According to the city attorney, the measure would: 

• place time-sensitive outside funding sources for transit at risk or prevent the city or other agencies from applying for available funding; 

• increase costs to prepare the required plan, place it on the ballot and potentially hold a special election if necessary; 

• increase the uncertainty in the BRT planning process and reduce flexibility in project implementation should the voters approve a designation plan; 

• impede implementing General Plan goals relating to promoting alternatives to automobiles. 

The city attorney’s report further states that the measure could be unlawful, conflicting with the vehicle code that delegates to the transit agency the authority to create HOV lanes on city streets to the City Council. 

Responding to the question of the measure’s legality, Metzger said Cowan was mistaken. The vehicle code pertains uniquely to state-controlled highways, such as Ashby Avenue and Interstate-80, Metzger said. 

On the issue of the expense the city would incur if the initiative became law, Metzger said planning for BRT—what to do with the impacts on the neighborhoods—would create costs for the city. 

Responding to the city attorney’s critique, Councilmember Kriss Worthington told the Planet he thinks the ballot initiative offers “certain benefits of getting a sense of what the public wants.” 

Both Worthington and Metzger said that since the General Plan simply says the city should move in the direction of alternatives to the automobile, the ballot measure does not conflict with it. 

Pointing to the Brown Act, the state’s open meeting law, Worthington said Tuesday’s closed-door meeting might have been called improperly. Since it is a “special” meeting—that is, not a regularly scheduled meeting—it should have been called by the mayor or by five members of the City Council, Worthington said.  

Acting City Clerk Deanna Despain told the Planet the special session was initiated by an e-mail from Cowan, after which she polled members of the council and found that a majority were able to attend. 

Mayor Tom Bates, who has spoken in favor of the BRT and who signed the city clerk’s announcement of the closed door session, was out of town and not available for comment.