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The Berkeley City Council huddled behind closed doors Tuesday evening to hear Acting City Attorney Zach Cowan tell them why a citizen-initiated anti-Bus Rapid Transit measure might not pass legal muster—and to consider whether the city should file suit to keep the measure off the ballot. 

The closed-door vote not to sue, however, was unanimous, as was the vote in the regular council meeting to place the initiative before the voters. (Councilmember Dona Spring was absent.) 

“We voted to honor the initiative process and take no legal action,” announced Mayor Tom Bates, reporting out from executive session. 

The initiative, submitted by Dean Metzger, Claremont-Elmwood Neighborhood As-sociation (CENA) president, and Bruce Kaplan, owner of Looking Glass Photo on  

Telegraph Avenue, and certified by the Alameda County Registrar of Voters, would require public approval before the city could create any bus-only or high-occupancy-vehicle traffic lanes. 

The initiative, signed by 3,240 people, was in response to the AC Transit Bus Rapid Transit (BRT) plan to create a bus-only corridor between San Leandro and Berkeley.  

Speaking at a press conference before the closed-door session, Berkeley attorney Christopher Lien said that the initiative was the only way the Telegraph Avenue neighborhoods could insert themselves into the discussion. 

“For the last several months, we tried to get the attention of our elected representatives,” Lien said. “Every time we try to talk about the BRT, they say it’s too far along, that it is unstoppable.”  

The initiative is the only means available to give the BRT discussion back to the residents, according to Lien. “We’re not against [public] transportation. We want the city to engage us, to make a better plan,” he said. 

Lien and others underscored the concerns about BRT expressed by various resident and merchant organizations, including the LeConte Neighborhood Association, CENA, the Telegraph-area merchants and others. They say BRT would not get people into buses but instead clog the streets and neighborhoods with cars. BRT would eliminate two automobile lanes on Telegraph Avenue and parts of Shattuck Avenue. 

BRT supporters say just the opposite, that the dedicated lanes would allow faster, greener public transit and get people out of their cars. 

The question the council addressed in closed session, however, did not concern the merits of BRT but whether the citizens’ initiative was legally sound. 

The public was not privy to the concerns expressed by Cowan in closed session. 

Councilmember Kriss Worthington argued with Mayor Tom Bates at the public session that preceded the closed-door session, insisting that the public had a right to know what the council would be discussing, so that their comments would be relevant.  

“How can they comment on whether there’s a legal basis [to challenge the initiative] if they don’t get an explanation?” Worthington asked the mayor. 

After some equivocation, Bates responded, “The legal basis is that state law says there’s a question about whether or not by initiative you can control things that are in the streets.” 

During a break in the council session, Cowan declined further explanation to the Planet, instead pointing to the mayor’s explanation, and what Cowan had written in his analysis of the initiative. 

“It is not clear whether the voter approval requirement of the ordinance is lawful because it appears to conflict with California Vehicle Code section 21655.5 which delegates the authority to create HOV lanes on city streets to the City Council,” he wrote. 

Addressing the council, initiative supporters condemned the process by which the council would consider blocking a citizen’s initiative. 

“I come to you with a heavy heart,” Metzger said. “You want to sue the citizens who have tried to communicate with you and failed.” 

Roland Peterson, executive director of the Telegraph Avenue Business Improvement District, weighed in, calling on councilmembers not to take the initiative to court.  

“The will of the people should be expressed at the ballot box,” he said. “The place for any lawsuit is after an election.” 

Former Mayor Shirley Dean, opposing Bates in the November election, said the city attorney should have brought up the question of a legal challenge when the initiative was submitted.  

Furthermore, she said, the city attorney’s analysis should not express an opinion of the measure. “You need to be impartial on what goes on the ballot,” she said. “That’s the tradition of Berkeley.” 

Initiative opponents did not ask to keep the measure off the ballot, but expressed their concerns with the initiative itself. 

Planning should be left to professionals, said resident Hank Resnick. “Ballot box planning is bad planning,” he said. 

Len Conley of Friends of BRT said the environment was at issue. “I hope the voters of Berkeley keep Measure G [reducing greenhouse gas emissions] in mind,” he said. 

And opponents took the opportunity to address BRT directly.  

“I think it will kill Telegraph,” said Michael Diehl, an advocate for homeless people in the Telegraph area. “It will destroy the heart of Berkeley.” 

Councilmember Laurie Capitelli said he wanted to make it clear that placing the measure on the ballot did not indicate council support. 

“By placing it on the ballot, it honors the signatories,” he said. “It doesn’t indicate what we feel about the initiative itself.”