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City Council Postpones Final Vote on Downtown Plan

By J. Douglas Allen-Taylor
Thursday July 09, 2009 - 09:39:00 AM

The Berkeley City Council ground its way slowly—and sometimes painfully—towards passage of its proposed Downtown Area Plan Tuesday night, working its way through consideration of a series of detailed amendments by Councilmember Jesse Arreguín before finally putting the matter off until next week. 

The Downtown Area Plan (DAP) is a far-reaching proposal to set development goals and policy guidelines for the city’s downtown area. The council is trying to reconcile two versions of the plan, one created by the Downtown Area Plan Advisory Committee (DAPAC), the other by the Planning Commission. 

From the tone of Tuesday’s discussion, it appeared that the consensus of the council is that it will work from the foundation of the 118-page revised version published in Tuesday night’s agenda packet, and that this is the version—with some modifications—that will win final passage. This version—prepared by staff—takes the Planning Commission version of the DAP as a base, adding back some of the stronger language and suggestions contained within the DAPAC version. 

Tuesday’s DAP deliberations were a far cry from the council’s June 9 meeting, when an angry Arreguín charged that his views and proposals on alterations to the plan were not being considered. On Tuesday, the council went into considerable detail over the first eight of Arreguín’s 14 proposed amendments before Mayor Tom Bates asked that city staff study the bulk of them for analysis and recommendations to come back to the July 14 council meeting. 

The council agreed to one of Arreguín’s suggestions—to change the official title of two of the areas referred to in the DAP in order to avoid confusion—but balked at suggestions that changed height or setback limits, with several councilmembers either saying that they needed more information on the possible effects or suggesting that the more detailed Arreguín proposals needed to be in the zoning code rather than the DAP. Planning and Development Director Dan Marks appeared to grow increasingly testy and frustrated as he answered questions concerning the proposed amendments, several times sparring with Arreguín over the reasons why he thought the councilmember’s proposals were unnecessary. At the end of the DAP discussion, a weary Marks sat down heavily on one of the seats in the first row of the council audience section, closing his eyes, tilting his head back, and clutching several thick planning documents against his chest. 

The council also put over consideration a proposal by Councilmember Kriss Worthington to put into the DAP protection for workers hired in downtown area hotels, but voted down a Worthington proposal to raise the inclusionary zoning affordable housing percentage from 20 percent to 25 percent in the downtown area. With Councilmember Max Anderson saying that with “developers hav[ing] figured out how to game the [inclusionary zoning] system” and the “actual percentage of inclusionary units in the city is between 12 and 14 percent,” Worthington has been arguing that the only way to reach an actual mark of 20 percent affordable housing was for the council to set a higher rate. But Marks said that it would be impossible for staff to provide a full analysis of the effects of the percentage raise by next week, and Capitelli suggested that the discussion be put off until the fall. 

The council also agreed to consider—at next Tuesday’s meeting—transit-friendly amendments to the DAP submitted by the AC Transit bus district. 

The council had scheduled a final vote on the DAP for Tuesday night, and Marks’ staff had rushed to get a final version ready which included amendments introduced by Bates and Councilmembers Linda Maio and Laurie Capitelli and approved by the council at the June 9 meeting. 

At the beginning of Tuesday night’s DAP discussion, however, Bates announced that the council was “not going to take final action tonight,” but would simply give staff direction for changes to be prepared for next week’s meeting. While Bates gave no reason for the postponement, Councilmember Worthington had earlier told reporters that because the final proposed version of the DAP had not been delivered to councilmembers or the public by the 48-hour deadline preceding the council meeting, he had asked Acting City Attorney Zack Cowan to rule on the legality of any final vote on the plan Tuesday night. 

In other action Tuesday night, the council formally approved an across-the-board residential and commercial refuse and organics collection rate increase after a state law-mandated citizen “majority protest” ballot came close to 10,000 votes short of disallowing the raises. The council originally proposed the rate increases on April 21 and then, under rules set out by 1996 state Proposition 218, sent out letters to city waste collection customers calling on them to mail back protest votes if they didn’t want the raise. More than 4,600 valid protest votes were received by Tuesday night’s meeting, but a majority of the city’s 28,627 real property owners—14,314—would have been needed to overturn the proposed raise. 

Several citizens came out to protest the fee increase procedure, with Bill Herman of the Northeast Berkeley Association calling it a “flawed process” and Berkeley Property Owners Association Administrator Nancy Friedberg labeling it an “unfair election,” and some speakers adding that many residents may have thrown the letters away because there was nothing on the envelopes indicating that it concerned a “majority protest” vote. 

City Budget Manager Tracey Vesely conceded that because the latest property tax rolls the city could use for the mailouts was from 2008, which listed property ownership as of December of 2007, it was probable that people who purchased property after that date would not have received the forms. Councilmember Linda Maio agreed that the procedure was “confusing and probably annoying” but added that the city “didn’t do anything disingenuously,” and said that the procedure was more democratic than in previous rate increases, when the council alone made the decision, with a public hearing but no public vote. 

And Acting City Attorney Zack Cowan said that while Proposition 218 required the city to mail the “majority protest” forms to parcel owners “it doesn’t require us to verify that everyone received it.” 

The rate increases go into effect immediately. 

Left off Tuesday’s agenda was consideration of proposals for amendments to the city’s Wireless Telecommunications cellphone regulation ordinance, which governs the placement of cellphone towers in the city. City Manager Phil Kamlarz said that with no cellphone tower applications pending and a packed calendar before the council adjourns for the summer break, his office and the council Agenda Committee decided to postpone discussion of the ordinance to the fall. 

The council will meet again on July 14 and then for an unusual Thursday night session, July 23, before breaking for the summer.