Public Comment

New: Open Letter to Berkeley Officials: Benefits Resolution is Legally Incorrect

Anna de Leon
Friday July 10, 2015 - 11:42:00 AM

TO: Mayor Tom Bates, City of Berkeley Zack Cowan, City Attorney, City of Berkeley

FROM: Anna de Leon

RE: Agenda Item #54 Berkeley City Council Meeting of July 14, 2015 Establish a System for New Downtown Projects Over 75 Feet to Provide Significant Community Benefits -- Necessity for Adoption by Ordinance instead of Resolution

Dear Mayor Bates and City Attorney Cowan,

Given the scope and substantive changes to the existing ordinance guiding significant community benefits contained in the above agenda item, its adoption at the Council’s July 14th meeting by resolution, rather than by ordinance, would be in violation of the Berkeley City Charter. Accordingly, I request that this item be removed from the agenda and correctly re-submitted at a later Council meeting as a proposed ordinance.

Notice of the above concern was previously provided to you on June 25, 2015 in a letter from Ellen Widess and Rick Warren when the above Resolution was first introduced on the Council agenda as a discussion item. While your response at that time was that the Council could discuss the item, since it was only being referred to the City Manager without any formal action being taken at that meeting, the Council is now poised to take formal, and I believe legally incorrect, action. 

As noted in the Widess-Warren letter, use of a Resolution may be appropriate to determine if a single applicant provides significant community benefits or to give general guidance. However, the use of a resolution is inappropriate if it is used to set mandatory standards that are applicable to all future applicants. The current Berkeley Municipal Code only authorizes the Zoning Adjustment Board to make a “finding that the project” that they are currently considering “will provide significant community benefits" (BMC § 23E.68.090 Findings) not to establish mandatory standards. 

Second, under the concept of “equal dignity”, ordinances should only be amended by a subsequent ordinance and resolutions by subsequent resolutions. As noted in the Widess-Warren letter the City Charter clearly requires that any “revision, re-enactment, or amendment” and any repeal of an ordinance shall be done by ordinance. 

At the state level, Government Code 65850, et seq., generally requires that cities “adopt ordinances” to regulate zoning, such activities as “location, height, bulk, number of stories, and size of buildings and structures”, “the intensity of land use”, requirements for off street parking and loading” and “establish[ing] building setback lines. and that “any other amendment to a zoning ordinance may be adopted as other ordinances are adopted.” (Govt. Code § 65853) 

In City of Sausalito v. County of Marin (1970) 12 Cal.App.3d 551 overturning a zoning decision adopted by Marin County by Resolution “for failure to amend the Marin County zoning ordinance by legislative action of equal, dignity therewith,” the court noted 

The Legislature has been explicit concerning this distinction...By statute, the Legislature has made the terms "ordinance" and "resolution" synonymous in a very few instances, each of which is highly specialized…in innumerable other statutes authorizing or directing actions by county boards of supervisors, it has been careful to state whether the specific action shall be taken by "ordinance" or by "resolution. Id. at 567. 

As a result of the June 25, 2015 Council meeting, the Council made significant changes to its proposed community benefits proposal by adopting a proposal from Council members Droste and Moore that are now before the Council for adoption at its July 14, 2015 meeting. 

Reviewing Agenda Item #54 reconfirms the conclusion that the Council is significantly revising, amending, and repealing through resolution, a previously adopted ordinance governing the Zoning Adjustment Board’s (ZAB’s) authority to determine significant community benefits. Under that ordinance all applicants were subject to the same rules and ZAB had full discretion to determine the amount of community benefits, their type, and the process for making these determinations. 

In particular, agenda Item #54 now establishes two separate and distinct classes of applicants, pre June 25, 2013 and post June 2013, each of which is subject to different, and, in the case of pre-June 2013 applicants, mandatory standards. For pre June 25, 2013 (projects that have been in the permit process for more than two years prior to June 25, 2015) Agenda Item #54 completely removes ZAB’s discretion to determine the amount of community benefits by establishing a “fixed value”, either payable as a set sum or as “benefits of equivalent value.” As also noted in the Widess-Warren letter, the establishment of set fees based on square footage raises the issue as to whether this is an assessment under the Berkeley City Charter, which also must be done by ordinance and not resolution. 

Agenda Item #54 also imposes significant new restrictions on ZAB’s current discretionary authority under the ordinance to determine the amount and type of benefits it may determine are needed. Agenda Item #54 now usurps ZAB’s current discretion by establishing a preferential order for determining community benefits (affordable housing, Project Labor Agreement (PLA); and one additional benefit). It would also impose a mandatory valuation on the benefit of any PLA that could be applied toward meeting the community benefit goal, once again undermining ZAB’s current discretion under the ordinance. 

In addition to its effect on ZAB, Agenda Item #54 also creates new and mandatory filing requirements on applicants that were neither identified nor required in the previous ordinance. 

While many of these changes may be desirable, in order to ensure that they are enforceable, consistent with the City Charter, and that citizens and applicants have clearly defined expectations as to ZAB’s authority, the above changes need to be made through ordinance and not resolution.For the above reasons, I respectfully ask that the City Council defer taking any formal action on this item at its July 14, 2015 meeting and instead process any proposed amendments to the existing Municipal Code through ordinance as required by the City Charter. 


Anna de Leon 

Anna de Leon is a Berkeley attorney and the former president of the Berkeley School Board.