Council member, city argue in court over ballot initiative language

Ariel Hayat/Staff
Alameda County Superior Court Judge Evelio Grillo presides over an Aug. 29 hearing about whether ballot language for a controversial Berkeley initiative is biased and misleading.

OAKLAND — At a Friday hearing, Berkeley City Councilmember Jesse Arreguin argued against an attorney representing the city about whether the ballot language describing a controversial initiative is biased and misleading.

Arreguin requested the hearing last week, claiming the ballot language passed by the majority of the City Council inaccurately and unfairly portrays the initiative it describes. Arreguin spearheaded the initiative, which would put heightened sustainability standards and different height-limit restrictions on development in Downtown Berkeley, among other new regulations. Mayor Tom Bates, who has expressed opposition to the initiative, wrote the ballot language that was passed.

In a tentative ruling released Thursday, Alameda County Superior Court Judge Evelio Grillo granted part of Arreguin’s request to tweak the ballot language. He struck the word “significant” from the part of the language that said the initiative would “impose significant new requirements,” on the basis that the word contains value judgement, making it “implicit advocacy.”

The judge also edited part of the ballot language to read “change exceptions to height limits” instead of “reduce height limits,” calling the latter option “technically accurate” but misleading.downtown.tpai

James Harrison, an attorney for the city, disputed the preliminary ruling. Regarding the first change, he noted the word “significant” does not constitute advocacy because it does not characterize the requirements as good or bad. On the latter point, Harrison noted that to say the initiative reduces height limits is consistent with the language of the initiative itself.

In accordance with current regulations, the initiative would allow a maximum of 60 feet for buildings in certain areas. Developers currently need a permit to go beyond that maximum that requires them to establish that such a building would be compatible with the surrounding area. Under the initiative, developers would be able to go beyond the maximum if they took certain actions, such as providing extra parking spaces or public restrooms.

Arreguin said he agreed with the judge’s preliminary ruling but wanted to make some suggestions. He proposed replacing the word “impose” — which he said had a negative connotation — with “establish.” Arreguin also wanted the ballot measure to make the distinction that although the initiative reduces hours of operation for new businesses’ alcohol sales, it does not do so for existing businesses.

Councilmember Laurie Capitelli, who voted for the language written by Bates, said although he prefers the language originally passed by City Council, the judge’s tentative ruling makes “very minor tweaks” that he finds acceptable.

“We should just move on and talk about the merits of the initiative,” Capitelli said.

The hearing was one of two held Friday afternoon over ballot language approved by the City Council. Attorney Christopher Skinnell spoke on behalf of two Berkeley residents who oppose a proposed tax on sweetened beverages. Residents Leon Cain, who works for a firm that has represented the American Beverage Association, and Anthony Johnson filed a petition earlier this month alleging that the ballot language for the beverage tax is biased and inaccurate.
The judge is expected to issue rulings for both hearings by 5 p.m. Tuesday.

Melissa Wen is the lead city news reporter. Contact her at [email protected] and follow her on Twitter @melissalwen.