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Backers of a failed initiative to save Berkeley’s Landmarks Preservation Ordinance (LPO) will learn next week if they can block a rival ordinance—at least until voters have their say. 

Meanwhile, results of a city attorney’s investigation into the winning campaign will be revealed next Thursday, the same day the new law will take effect unless backers of an electoral referendum on the new law can gathered the needed signatures. 

In the most hotly contested issue in November’s election, Berkeley voters rejected Measure J, a preservationist-backed initiative to save the city’s existing LPO, by a 57-43 margin, after a bitter campaign in which supporters were heavily outspent by a developer-funded campaign by the Chamber of Commerce’s Political Action Committee, Business for Better Government (BBG). 

But the controversy lingers, and the city attorney’s office is trying to find out who funded the extensive, expensive telephone poll conducted in July that asked prospective voters about arguments that would lead them to vote against the initiative.  

So far, no one has admitted to bankrolling the poll, ordered by a San Francisco firm which has worked for Assemblymember Loni Hancock, a former Berkeley mayor and spouse of Mayor Tom Bates, a co-sponsor of the council’s ordinance. 

Results of the city attorney’s investigation looking into the poll and other complaints stemming from the November election will be released Thursday, as the new LPO takes effects, unless ... 

On Dec. 12, the day councilmembers voted 6-2 to adopt the new law, opponents filed papers to force a public referendum, triggering a 30-day period to gather the 4,100 signatures needed to force an up or down vote during the next general or special election. 

If they get the needed signatures—something campaign activist Laurie Bright says “is a better than 50-50 chance”—Berkeley’s election law would block enactment of the new LPO until voters could decide. The law bars calling a special election on the issue, but the question could be included in a special election forced by another issue. 

Otherwise the vote would occur at the next regularly scheduled election. 

Controversial features 

The Nov. 7 vote defeating Measure J paved the way for City Council approval of a rival ordinance drafted by Mayor Tom Bates and City Council colleague Laurie Capitelli—a law backed by developers who contend the existing law has led to needless and costly delays caused by battles with project foes who use landmarking petitions as weapons of last resort. 

One key feature of the council’s measure particularly alarmed preservationists, the creation of a new bureaucratic procedure called the request for determination (RFD). 

Praised by developers, the RFD allowed a property owner to file an application with the city seeking a ruling from the Landmarks Preservation Commission (LPC), the council-appointed body which oversees the LPO and rules on landmarking requests. 

Unless the LPC declared that the property qualified as either a landmark or a structure of merit, the two classes of landmarking provided in both versions of the ordinance, the developer would be granted a two-year “safe harbor” period during which the property would be exempt from landmarking efforts. 

Preservationists fear the RFD will allow developers to plot projects without alerting the community, then announce them after they have secured the two-year exemption; developers said they needed the exemption to be able to avoid costly delays from landmarking petitions filed after they’d already commenced critical stages of the development process.  

Councilmembers approved the Bates/Capitelli ordinance July 11, and were scheduled to take the second and final vote during a special meeting two weeks later. 

Instead, Bates pulled the vote off the calendar after preservationists Bright and Roger Marquis petitioned the city clerk to gather signatures for a ballot initiative to preserve the existing LPO, making minor corrections to ensure conformity with changes in state law. 

Before the scheduled second vote and after word had spread of a possible initiative drive, someone spent tens of thousands of dollars on an extensive telephone poll targeting Berkeley residents with questions about specific arguments that could entice them into a no vote on a measure to keep the city’s existing landmark law. 

Many of those issues ended up in BBG’s campaign mailers.  

Callers from Communications Center Incorporated, a polling firm with bases in Spokane, Wash., and Lakeland, Fla., saturated the city with an extensive list of questions prepared by David Binder Research, the San Francisco pollster whose clients have included Hancock, Willie Brown and Gavin Newsom among others. 

Just who bankrolled the calls remains a mystery, and no spending reports were ever filed despite state and city laws mandating the filing of all election-related expenses. 

After complaints were lodged with the city’s Fair Campaign Practices Commission, Deputy City Attorney Kristy van Herick began an investigation, the results of which will be mailed to the FCPC a week in advance of its next meeting Jan. 18. 

Even without adding in the expense of a poll that could have cost upwards of $50,000, the Chamber’s PAC outspent Measure J supporters by as much as four to one. Most of the funds came from developers, although one of the most controversial, Patrick Kennedy, said he gave he gave $5,000 on the condition none of it went to opposing Measure J. 

The biggest bucks came from developers, and from retired software executive A. George Battle, who gave BBG $14,000 four days before the election. 

Referendum  

For preservationists, defeat at the polls was a lost battle, not an end to a political war, even when, following the certification of the election returns, councilmembers voted Dec. 12 to approve the mayor’s ordinance—which had been altered shortly before the meeting to include a provision making the law an all-or-nothing measure. 

That legal move blocked any effort to challenge only portions of the law such as the RFD, and forced an up-or-down vote. 

Responding to the news of the referendum, Capitelli said, “Well God bless ‘em. I would hope people would stop and think before signing.” Cisco De Vries, chief of staff for the vacationing Mayor Tom Bates, said, “It’s kind of like that movie Groundhog Day, where the same things happen over and over again.” 

But Bright said Wednesday that community members are responding positively to the 15 to 20 signature-gatherers who can be found throughout the city at any given moment. 

“Despite starting out with one-and-a-half hands tied behind our backs, we’re fairly optimistic,” he said. “We’re trying to get everything right this time, and we’re staying in constant touch with each other.” 

Bright said campaigners are applying lessons learned from the Measure J defeat. 

“We did very poorly in the council districts where very popular councilmembers were strongly opposed to the measure, for instance in district 5 and 8,” the political bases of Capitelli and Gordon Wozniak. “We thought we could get people to vote around their council people, but we were wrong.” 

Instead, the signature gatherers are concentrated on the Berkeley flatlands, home of the strongest Measure J support. Two of those districts, 4 and 7, are home to Dona Spring and Kriss Worthington, critics of the Bates/Capitelli law. Two other districts targeted by the petitioners are 2 and 3, home to Darryl Moore and Max Anderson, who voted for the Mayor’s measure. 

“We’re bolstering the areas where we have the most supporters because they are the people who are the most affected by neighborhood demolitions and overbuilding,” he said.