Berkeley Council Plots Squelching
the Man Who Knows Too Much
About Land Use

By Becky O'Malley
Thursday May 16, 2013 - 07:12:00 PM

The darkest deeds are done in the dead of night. That’s why it’s often a good idea to check out the last item on the online video of the Berkeley City Council meetings. Yes, if you’re a political junky you can watch the council in real time on your home computer (or godforbid even attend in person) but you have to be badly addicted to stay awake until the wee small hours when the powers-that-wanna-be take up their worst proposals. 

Of course, for Berkeley’s elderly councilmembers, the wee small hours are only between 10 and midnight, but by that time many watchers have tuned out, from sheer boredom if nothing else. I finally got around to checking out last week’s council meeting over the weekend, but watching the last item left me nothing but confused. 

I admit, I didn’t go back and review previous iterations, but it appeared that Councilmembers Capitelli and Wengraf wanted to make sure that some appointees to city commissions don’t outstay their welcome. Needless to say, however, who you welcome depends on who you are. Or who you work for. 

Councilmember Max Anderson, the master of pungent prose, got it right: “ Let's just snatch the veil off this stuff. This is pure political opportunism, that's what it is.” 


After exhaustive study of the online video to figure out what the city council seemed to be doing, I decided that what Councilmember Capitelli is really trying to do is eliminate The Man Who Knows Too Much, Gene Poschman, from the Planning Commission. Capitelli and Poschman locked horns many times when they served together on the Planning Commission and the Zoning Adjustment Board, a total of 8 years if not more. 

It’s no coincidence that the four targeted commissions, Planning, ZAB, Landmarks Preservation and the Housing Advisory Committee (HAC) are concerned with land use, the only area where local governments have retained real power. The land use speculators who have descended on Berkeley like a swarm of locusts in recent years are terrified of Poschman, with good reason, even though he’s a genial fellow. 

He’s a political scientist, a retired professor who used to work as a staffer in the state legislature, who has an intimate understanding of the intricacies of planning and zoning laws. The myriad developer-funded schemes to wrest control of Berkeley land use from public oversight might have succeeded in many, many instances without Gene’s eagle eye on what was going down. Measure T, the West Berkeley rezoning effort turned down by the voters in November, is the latest example, but there have been numerous similar land grabs attempted and thwarted during Poschman’s public service era. 

Capitelli used to be a developer, and he’s still in the real estate business. A cursory review of his list of campaign contributors reveals many familiar names of his development industry colleagues. That’s a crowd that likes to get their own way in the public process, and having a knowledgeable policy wonk like the good professor Poschman on Berkeley’s land use decision bodies is bound to annoy them. 

Those who pay the piper call the tune, and it’s clear that Capitelli is playing the developers’ song with this proposal. 

What specifically does he propose? Well, here’s how he described his amendment at the council meeting last week: 


“Refer to the city manager an amendment to BMC 3.02.040 that imposes an eight-year cumulative -- eight cumulative years in any ten-year period--cumulative term limit for all commissioners serving on the LPC, the HAC, the ZAB, and the Planning Commission, currently subject to an eight-year consecutive term limit and whose service commenced on or before… September 1, 2006.’ I also would insert "and all future commissioners."  

So we're not just talking about commissioners that are serving now but all future commissioners. 

And the September 1, 2006 date would extend this, then, to September 1 of 2014, providing a transition period for those who are exceeding the limit.” 


So, now that that’s perfectly clear—not to me, but maybe to the councilmembers—let’s see why Capitelli said he wanted these changes: 

“Number one, there are rarely vacancies on any of these four boards that I identified.
Number two, there are lots of people, including commissioners who I have appointed who will be moving on after eight years.
Number three, it's the intended policy of this council to have an eight-year limit, and there happens to be a big loophole in it, which I object to.”
No data to support the first two assertions was provided, and Councilmember Worthington said they were incorrect as far as his own appointees were concerned, , but policy wonk Poschman, in a two minute public comment slot, offered a reality check on Number Three. He actually did the numbers and tried to explain them to a confused and largely innumerate council. 


The bottom line is that in the time period he studied, perhaps 1.6% of the commissioners, perhaps 8 individuals total, benefited from the so-called “big loophole”. Or put another way 98 or 99% of the commissioners served 8 years or less according to the standard formula,. 

Not only that, most of the small number of commissioners who arranged to get reappointed after serving close to 8 years did so because they were in the midst of working on specific projects like the Downtown Plan which they wanted to complete before stepping down. Councilmember Susan Wengraf, Capitelli’s co-sponsor for this proposal, took advantage of the loophole herself to get reappointed to the Planning Commission at least once. 

But it just so happens that all those complicated words have just one function: they exactly delineate the terms of just four sitting commissioners, Poschman the most prominent among them. 

The irony underlying this whole chaotic discussion is that a sizable percentage of the sitting councilmembers have been in office much, much longer that the commissioners they propose to fire. A couple of them,Wengraf and Moore, had been aides to previous councilmembers before they were elected in their own right, giving them fingers in the pie for a very very long time indeed. 

The usual argument against term limits of any kind is that the expertise officeholders develop is wasted if they are automatically dumped. Those who watch Sacramento politics often comment that the legislators there are increasingly dominated by lobbyists, since they’ve just learned the ropes before they’re sent home. 

And even the most avid proponents of term limits for legislators rarely support term limits for judges, since judges really need to understand what they’re doing-their years on the bench educate them in the law and the subject matter. 

That’s why choosing to kick commissioners off Berkeley’s four quasi-judicial bodies is particularly foolish. It takes a good while for many ZAB members to grasp what’s meant by arcane acronyms like FAR and C2A. 

If any kind of term limits is needed, it’s term limits for councilmembers that should be under discussion. Incumbents are automatically re-elected time after time after time, which is why only one of nine is under 50 in a town full of students. 

Mayor Bates should be well aware of the arguments pro and con, since after 24 years in the state legislature he sued to defeat the term limits imposed on those bodies, carrying his suit all the way to the Supreme Court before it lost. Under the circumstances, he should be embarrassed to try to get a Berkeley planning commissioner (and longtime supporter) with a great deal of accumulated knowledge and institutional memory knocked off after only eight years on the job. 

Ultimately, last week the council abandoned the confused discussion so they could go home to bed, postponing it until next Tuesday’s meeting. It will be interesting to see what happens. 

If you’re a policy wonk yourself, you could watch the excerpt below, decide whether you think Professor Poschman should be fired from the Planning Commission, and call or write your councilmember with your opinion before Tuesday. I can’t promise, however, that they’ll pay you any mind—it doesn’t usually work that way in Berkeley any more. 









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