Planning Commission

By Richard Brenneman
Thursday September 17, 2009 - 09:52:00 AM

Berkeley organizations shouldn’t get their hopes up about any urned income in the new future. 

Or such was the temper of city staff at Wednesday night’s meeting when it came to the subject of a proposed new law to allow the construction of small columbaria inside city limits. 

What initially looked like a simple issue—a new law that would allow easy construction of repositories for 400 urns or fewer of human ashes—proved almost absurdly complex once city planning commissioners began weighing in on the issue. 

It all started with a Sept. 28, 2008, request from City Councilmember Laurie Capitelli, who asked commissioners to craft a code revision to allow Northbrae Community Church to build a small garden wall that would hold the ashes of up to 400 folks. 

The city attorney’s office and planning staff crafted a proposal, which the commission approved with one dissenting vote and one abstention on Dec. 10.  

Patti Dacey, the lone opponent, was a portent of things to come. 

It wasn’t that she opposed disposing of human ashes in the city, a prohibition dating back to the post-Great San Francisco Earthquake days early in the last century when most Bay Area cities barred burials out of public health fears and San Francisco exhumed its previously interred dead and started a new industry in Colma. 

What bothered Dacey was that only churches—“religious assemblies”—were allowed to house them. 

“It seems a little strange to me that only people who are churched can have their ashes in Berkeley,” she told her fellow commissioners at the time. “That does seem to me to be a problem.” 

A reporters’ call to American Atheists spokesperson David Silverman at the time also elicited a spark of outrage. 

“There are lots of atheists in Berkeley, and now they have fewer rights than people who believe in an invisible man in the sky,” Silverman said. 

Then Americans United for Separation of Church and State—a group which includes believers as well as skeptics and outright nonbelievers in its ranks—weighed in with a lawyer letter threatening action if the City Council enacted the law. 

Citing a Dec. 17, 2008 Daily Planet article on the commission’s action, three attorneys for the group warned the council that “the proposed regulation would run afoul of the Establishment Clause of the First Amendment to the U.S. Constitution because it fails to afford equal treatment to the religious and nonreligious.” 

Furthermore, the letter noted, “there is no basis to conclude that secular columbaria are any more dangerous than religious ones.”  

Taking discretion for the better part of valor, the council sent the proposed ordinance back to the drawing board, which is why it ended up before the Planning Commission a second time Wednesday night.  

The name “columbarium” comes from the Latin, meaning “dovecote,” because the niches used to house the urned ashes reminded someone long ago of the avian living spaces in a pigeon coop [although American “pigeons,” sometimes referred to as “feathered rats” by New Yorkers, are rock doves and not pigeons at all]. 

But the planning commission’s rerun session brought out the hawk in some commissioners, and by the time the feathers had ceased flying, city planning staffer Alex Amoroso looked like he was ready to fly the coop himself. 

Part of the problems involved conflicting words in the proposed statute, while the others involved the politics of land use, always a hot button issue in Berkeley. 

Commissioner Gene Poschman said he was disturbed that under the proposed ordinance, city planning staff could approve construction of a columbarium without notifying neighbors. At the least, he said, the city should require an accessory use permit, which would mandate notification for those owning nearby property. 

The ordinance would allow any property anywhere in the city to erect an urn repository as long as the property’s primary use wasn’t residential. 

That, Poschman said, would also amount to “amending the West Berkeley Plan to add columbaria” to the city’s only manufacturing and industrially zoned real estate. 

The way the ordinance is worded, said Sophie Hahn, filling in for commissioner Patti Dacey for the night, “anyone with a house in Berkeley that happens to be next to a primary non-residential use could wake up one morning and find themselves next to 400 bodies.” 

The reason, Amoroso said, is because city code permits religious facilities in residential neighborhoods. 

“Properties known to be next to cemeteries are known to have reduced property values,” said Hahn, and the presence of remains could bring large numbers of cars for services and from people wanting to visit their loved ones’ cremains.  

City Land Use Planning Manager Deborah Sanderson said the city is prohibited from barring religious uses in residential neighborhoods.“It’s a big policy shift to allow virtually unlimited disposal of human bodies.”. 

During the public comment period, land use activist Steve Wollmer said the commission should consider amending the proposed statute to limit the mini-crypts to property owned by non-profit organizations. “Otherwise, you really do need to let Patrick Kennedy know there is another occupant for his storage building.” 

Kennedy, Berkeley’s most controversial developer, is owner of University Storage in South Berkeley. 

Chair David Stoloff said he favored Wollmer’s approach, and Sanderson said she was willing to consider Wollmer’s suggestion if the commission so directed. 

“I marvel at how simple it was when it was just a church,” said commissioner Jim Novosel. 

“We could bring it back with three or four minor changes,” Amoroso said. “But if that doesn’t meet the test, we’ll be dropping the issue.” 

“It’s a nice idea to have them throughout the neighborhoods,” said commissioner Teresa Clarke. 

“We may come back with a take-it-or-leave-it situation,” Amoroso replied. 

Commissioners opted to give the idea one more chance at their Sept. 23 session. 

If no answer is reached then, another question will be resolved: Who knows where the bodies are buried? Anywhere but Berkeley.