Public Comment

New: Berkeley Should Not Make Concessions for Wareham Development

By Tree Fitzpatrick
Tuesday January 22, 2013 - 11:00:00 AM

As reported on Berkeleyside last week, Wareham Development has asked to build a new design at 740 Heinz Avenue. In 2009, according to the Berkeleyside story (I have no other source for any stated facts about Wareham & 740 Heinz Ave), Wareham agreed to retain two walls in the 740 Heinz Ave building, which has long been declared a historic landmark. The Zoning Adjustment board agreed to the changes, acting as if Wareham had some kind of 'rights' simply because they had a previous agreement to build, an agreement they did not perform. Since when does a prior agreement with the city grant special rights when seeking adjustments from the zoning board?!! Wareham says an earthquake retrofit makes the historic building too expensive to restore. Wareham, by the way, does not own the real estate, it merely seeks to build on it. 

I don't think earthquake retrofitting is the salient issue here. I think the real issue is the way city planning staff seems to prioritize real estate development priorities over the city's commons. To folks wondering what 'the commons' is, the commons is every space where human lives intersect, including the entire earth and all of its contents -- yes, including the oil we cheaply sell to private oil companies that privatize our commonly owned oil profits, and air, water, oil, coal, gas, and everything. The commons also includes streets, schools, libraries, parks and quality of life. And shared culture. Any new building changes the quality of life in our city, esp. to its nearest neighbors so all zoning adjustments affect the commons, which belongs to all of us. 

Typically a building developer, Wareham in this instance, is repped by former city planning staff, and they inappropriately use cozy collegial relationships to persuade current staff to kiss up to the developers as if development takes a priority over everything else. 

Our city employees should be closely scrutinized both conflicts of interests and the appearance of conflict of interest. Do city planning staff relatives score jobs with the developers who score valuable giveaways from city staff? I suspect they do. 

Look at the guy leading the chase for the proposed skyscraper that will deny Berkeley of Shattuck cinema. He used to run city planning or zoning and his wife heads a nonprofit dedicated to deceiving voters into voting for downtown plans that benefit developers. Winning such votes based on investing a lot of money is dumb policy. The reason rich folks should not be able to pump unlimited money into politics has nothing to do with 'free speech' and everything to do with market manipulation. 

I do not support the religion of free market capitalism but, for the most part, this whole country's public policy is infected with the myth that free market capitalism is good. If we are going to go on drowning in the myth that free market capitalism is a good thing, then let's have a truly free market. Let's ban private political spending, which is not free speech but is, instead, marketing propaganda. 

Let's make public policy decisions by insulating our public servants from the pressure of money, jobs for relatives, campaign donations. We could create such a system. And then step back and let a truly free market decide if tearing down an old, historically significant wall or two is acceptable. But the way we do things, the citizenry has no way to meaningful way to determine of public policy decisions, made by either elected politicians or well-connected city staffers with very plush incomes, benefits and pensions are acting free of any conflict of interest. 

And whatever happened to critical thinking skills? There seems to be a wide assumption that since these guys got permission to build a tall building if they preserved these historic walls and now, due to their own dawdling and procrastination, the economics have changed, well, what the heck, the irrational assumption appears to be, they already 'own' the right to build so who cares if they don't keep their promises that got them the building rights in the first place? But they don't own the right to build whatever they want because someone gave them permission to build something a few years ago. 

It matters when the city does not hold people to the agreements the city makes, on our behalf, and then gives more and more and more away. It is quite possible to write contracts with developers that build in clear financial consequences if they don't deliver. The Gaia building did not deliver what it promised to the city when it got a zoning variance. I doubt that developer ever intended to deliver on its promises to replace that theater. Developers know they can get freebies from the city, which include huge fee waivers, huge zoning exceptions and concessions and then know that after the building is built and the amenities never appear, there will be no consequences. It is possible to write such consequences into the contract. 

I am disgusted by public representatives, elected or city staff, who seem to make emotional, unreasoned, biased and un-clear analyses (critical thinking skills matter!!!). Hire good lawyers willing to write rigorous clauses into agreements that hold developers wholly liable both for their contractual commitments and draft tightly defined penalties if they abrogate their contracted commitments. 

This is done all the time, or it used to be. If a builder runs behind schedule, municipalities and other government entities used to require daily penalties, for example, if building ran behind. But not in Berkeley. Our public servants act like private corporations are a higher priority constituency and they seem to feel a much higher duty to the fantasy that corporations mean economic development for all. The city could insist on contracts with built-in specific consequences that were tightly written and impossible for courts to readily dismiss them. If a developer fails to provide a promised amenity to the commons, to the city, contracts could provide, in advance, explicit, aggressive financial penalties. The point is not to assess the penalties but to force developers to keep their promises. Too often, city staff give sweet deals based on unenforceable promises that developers don't deliver. The developers, with no incentive to perform the promised amenity, get the giveaway and, typically, sells to out of town real estate owners who do not really care about the quality of the commons in Berkeley. 

Here in Berkeley (and all over the country, it seems) we have allowed the conservative Reagan revolution to say that business and profit, res ipsa loquitur, matters more than the common good and we give away the common good for pathetically low prices and then we don't even hold these charlatans masked as business people, accounting for the low price penalties. 

I know Berkeley, and everywhere, needs economic development. But we have seen, for decades, that giving to the 1% does not provide much, if any, benefit to the commons; the rich skim the cream off our commons and don't give back. 

Look at what happens over and over and over in Berkeley: a 'local' developer with good local connects, like former city zoning directors, extract needless concessions from the city, the city gives away way too much, and then the developer stiffs us and they sell to out-of- towners. City staffers seem to think it is too hard, or expensive, to sue. As a lawyer not licensed in CA, I can tell you that tight contracts could be written that pre-set actual financial consequences when developers fail to deliver their promised amenities to the city. Perhaps our civil servants need more training or should hire better lawyers to represent the citizenry -- and yes, lawyers paid by the city actually do represent us, not the city planning staff!! I would like such lawyers to remember who they serve: the people. 

The system is immoral, dishonest, cynical and, I believe, so wrong that words can't express it. 

I am all for new office building in W. Berkeley but geez, engage in truly intelligent negotiation with the developer that places a very high priority on demanding contractual commitments to provide explicitly delineated benefits to the commons, to the citizenry. 

If this developer was required, when he first got approval to build, to include parking, what rationale did city staff use to decide "uh, gee, we don't need parking now?" Will these new office workers walk and bike to work? Of course not. So parking in the neighborhood will be overcrowded and the developer wouldn't have to pay the cost of the parking burden but someone pays the cost: the commons, the community, real humans. 

I make this promise to every Berkeley resident: if our public servants acted more aggressively to demand benefits to the commons (we the people are the commons and own the commons -- google it), developers would still want to build office buildings, condo buildings and rental apartments in Berkeley. The developers would still make money, Berkeley could grow, our economic base could grow but we could achieve these things without giving the bulk of the benefits to private developers: share the wealth of the commons (where humans intersect, that's the commons) and we can have a more and more awesome city. Of course would-be developers are going to give formulas that tell us 'they can't make money unless this or that is given to them' but a truly free market would wait for development that did not ask for special favors, use the influence of former city staffers, and manipulate the system. A truly free market would be wholly transparent and have, as its top priority, the wellbeing of the commons. Or the people, not the formulaic profit margin the developer tells city staffers is required. There is more to doing business than formulaic profit, isn't there? Maybe quality of life matters too? 

I am not really upset at the idea of tearing down those walls. Life moves forward. I don't think we have to save every old building that had significance in the past. But we do have to protect our shared commons. We should be approving buildings that will generate economic benefits to the city tax pool, the city culture through new residents and employees. We should approve growth, but negotiate with bias in favor of the commons instead of negotiating with stupid short term thinking. Negotiate without giving into pressure by slick lawyers and advocates and former city staffers turned development consultants who use their former connections to exploit our city. 

All change, lasting change, is incremental. We have much work to do to become a better city. We need objective, conflict-free zoning and planning staff. We need great negotiation in all development agreements that spell out great benefits to the commons and provide severe economic penalties if the developer stiffs us on amenities instead of slaps on the wrist. 

Every developer seeking to do biz in Berkeley knows they just have to 'say' they will do the right thing and then do whatever they want and not even get a slap on the wrist. 

Here's a story I'd like to know: what happened to the contractor who destroyed those trees at the library when the landscape contact spelled out that the contractor was supposed to protect the trees, then the contractor just plowed the roots -- the contract explicitly addressed that the landscape contractor would work slower and harder to save the trees and then he worked fast and cheap to make more money and destroyed very old trees and stole years and years of pleasure to this city's commons. Will that contractor a contractual penalty for their abrogation of what they agreed to do? Will that contractor ever be allowed to bid in Berkeley again? And why would city staff ever approve such a disreputable landscape contractor? That guy had a history of doing stuff like that: he won the bid by bidding too low and then he worked cheaper and cost our city irreplaceable value. We let that happen. Our public servants let that happen. What policy guidelines have been set in place to stop it from happening? 

We get the system we insist on. So far, 'we' allow a corrupt and highly corruptible system to flourish even though we know many developers, consultants and a few well connected wealthy investors benefit far more than the city. 

Let's have a truly free market capitalism, with true transparency, real integrity. I am laughing at myself because I know what I am calling for is a joke? Transparency, integrity by both public servants and private capitalists is a big fat joke. 

To illustrate my perspective: the city waived something like $600K in tax liens when Ken Sarachan bought his now-famous lot on Telegraph. We 'gave' him a $600K freebie in exchange for his promise to do something with that lot. About 20 years later, he has done nothing, the tax lien was not paid so the city could not use that money and he still wants to keep that freebie. Why do our public servants do this kind of lame-o stuff? We could have written a sunset clause into that $600K giveaway so that the buyer of that lot understood unequivocally that he was going to have to pay a price for dishonoring the city's good faith waiver of that giveaway. But he faces no consequences, not even a reasonable time limit. I wasn't around when he got that waiver of the tax lien but, geez, ten years sounds like a more than reasonable amount of time for the waiver. None. Real estate developers have more power in this city than the commons/citizenry/the-people. I know 'the people' is increasingly seen as a quaint old fashioned thing. Laugh at me. I do not believe, FYI, in Sarachan's claims that the city staff is to blame for his 20+ year empty lot. Oh, I can believe dealing with Berkeley's zoning and planning staff is time-consuming and could be streamlined but I do not believe the city has deliberately stonewalled a development on Sarachan's famous Telegraph lot for over 20 years.