City Council member files lawsuit against Berkeley over ballot language

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Berkeley City Councilmember Jesse Arreguin filed a lawsuit Wednesday asking the Alameda County Superior Court to amend ballot language that he alleges contains inaccuracies and bias.

The language describes an initiative regarding Downtown development, which Arreguin spearheaded. The current version was voted for by the majority of City Council in June and was chosen among three options written by Arreguin, the city attorney and Mayor Tom Bates. The council adopted the language proposed by Bates, who opposes the initiative. Arreguin argues in the lawsuit that the city attorney’s language, which he considers more accurate and impartial, should be used instead.

“The language of the mayor contains inaccuracies, is misleading and creates bias against the measure,” Arreguin said. “What the council has approved is a disservice to democracy.”

The initiative described by the contested language would limit the heights of new buildings in certain areas, establish more stringent environmental standards and create an overlay that would mandate that historic buildings be used for community purposes only, among other changes. Under the initiative, however, buildings could be taller if they provide affordable housing units, public restrooms or other community benefits.


Supporters of the initiative highlight its effort to heighten sustainability standards, but opponents have claimed its requirements would hurt Downtown development. Developers of a 16-story hotel that would be built at 2129 Shattuck Ave. said they would cancel their plans if the initiative passes.

One issue with the language that Arreguin highlights in his lawsuit is Bates’ claim that the initiative would “impose significant new requirements for new buildings over 60 feet.” The word “significant,” the lawsuit alleges, “implies a value judgement.” The lawsuit furthermore, said the initiative’s requirements are not really new but simply modify existing regulations.

Bates, though, said the ballot question can be characterized in a variety of ways. He also said the 28-page initiative is complicated and has unintended consequences. For example, he said a requirement that new buildings over a certain height need to be certified LEED platinum — a sustainability standard that very few hotels in the United States possess — would make it virtually impossible for hotels of such height to exist.

“I am very happy for (the initiative language) to go to the court and for the court to decide if it needs tweaking or not, but I don’t think it does,” Bates said.

Bates also said Arreguin put himself and the court in a jam by filing the lawsuit without much time for the court to make a decision. Election materials will go to the printers around Sept. 2, giving the court about two weeks to make a ruling.

Anthony Sanchez, Arreguin’s chief of staff, said the process of filing the lawsuit has been more work than he and Arreguin imagined because they do not have resources such as donors and developers to pay for lawyers.

Arreguin said he will petition to expedite court proceedings. The plaintiffs in the lawsuit — which include Stefan Elgstrand, who is working on Arreguin’s reelection campaign, and several other Berkeley residents — will represent themselves in what Arreguin said will be a grassroots community effort.

Nico Correia is the lead city reporter. Contact him at [email protected] and follow him on Twitter @nicolocorreia.