Berkeley's Zoning Board Slouches Toward Birthing Its Monster

Becky O'Malley
Sunday September 13, 2015 - 06:49:00 PM

Don’t get me wrong, I love puppets, or more precisely marionettes. I’ve collected them for years, mostly at rummage sales, and now people even give them to me as gifts.

I have an awful lot of puppets hanging up in my front hall, though I’ve never gotten around to putting them in a show. That’s a shame, since I have a great cast of characters in search of an author: Charlie Chaplin, Lassie, the White Rabbit, Bill Clinton, a three-headed dragon and a couple of scary witches. Think what a great play these would make, if only I had time to write it.

But instead I spend my time (some would say waste it) doing pointless things like going to meetings of the Berkeley Zoning Adjustments board. On the other hand, it’s not an inappropriate pursuit for a lover of puppets, since it’s becoming increasingly apparent that this group which purports to be making independent decisions about what’s best for Berkeley is actually acting out scripts derived from the development industry or its clients on the City Council. 

What’s happened is called “regulatory capture”. The late lamented Planning Commissioner Patti Dacey used to say that on the first day of her administrative law class at Berkeley Law (then called Boalt) the professor told the class that every regulatory body which is supposed to monitor industry is eventually captured by those it’s supposed to be regulating.  

Think, for a current example, the California Public Utilities Commission and PG&E, now much in the news for backchannel email deals which are thought have engendered the lax inspection policies which caused the San Bruno explosion. Or, closer to home, Berkeley Planning Department’s revolving door, turning to allow its former Planning Director Mark Rhoades to become the paid advocate for developers of every stripe who want to do business here. 

And now consider Berkeley’s Zoning Adjustment Board, which has the power to grant developers variances from the zoning law.  

As I was collecting my own thoughts along these lines, I got a communication from U.C. physicist James McFadden, a citizen opponent of the 2211 Harold Way proposal, which nicely summed up the problem: 

“Having spent many an evening over the last 9 months at City Council, ZAB, LPC, and School Board meetings, I'm finally starting to recognize ‘industry capture’ of both staff and the council/board/committee members. Although many people are quick to assume that capture means corruption, they really are different things. 

“Capture is more of an aligning of economic world views, not necessarily to any monetary advantage, often just to make one's job easier or more pleasant in dealing with people on a day to day basis (perhaps like Stockholm syndrome). It entails adapting views that parallel industry's views which are clearly shaped by profit motive. 

“Captured individuals don't necessarily have an economic conflict of interest. They don't see their behavior as incorrect. They have forgotten that their role is to provide oversight and protection to the public on these public-private deals, and instead see their role as making sure the deal gets done. Their public meetings evolve into patronizing facades of democracy. 

“Captured staff and government officials suffer from wishful blindness rather than corruption per se. For the most part, capture is about creating a pleasant working environment with those in industry who they deal with on a daily basis. It is a slow and insidious process that strikes at the heart of human psychology which allows us to work in groups. The more time you spend with someone, the more likely you are to mirror their behavior—especially when the industry hires shills who continually flatter staff and boards/committees. When we-the-public show up and complain, we become the opponent to be ignored. 

“A telling sign of capture is an inability of staff to answer direct questions in a public forum - questions they should have answers for. This happened several times during the ZAB [Thursday] night. Staff instead must go outside and get the answers from industry—or just stonewall—or just present the industry talking points outside of public view. 

“Capture also manifests in the actions of the members of boards/councils/committees who are supposed to provide oversight, but instead seem more concerned with time and process. They often spend their time praising staff or justifying their poor performance, or worse yet praising the industry over which they are supposed to provide oversight. I was particularly struck by [ZAB Chair Prakash] Pinto's behavior at [Thursday] night’s ZAB. The meeting becomes a dance of false empowerment where getting through the meeting on time is more important than focusing on important issues or input from the public.” 

All you really have to know is that six of the nine members of Berkeley’s Zoning Adjustment Board are connected with the development industry to see how this works. It’s easy to guess how they’ll vote at the September 30 meeting where approval of the 2211 Harold Way project is scheduled to take place. 

Check out these links to see how they’ve made their living: 

Prakash Pinto (Chair), appointed by Councilmember Maio , principal in an architectural consulting firm. 

Denise Pinkston (Vice Chair), appointed by Mayor Bates, consultant to many real estate developments. 

Steven Donaldson, appointed by Councilmember Moore, consultant to the Downtown Berkeley Association and others. 

Savlan Hauser, appointed by Councilmember Droste , owner of development consulting firm, executive of the Jack London Business Improvement district. 

Richard Christiani, appointed by Councilmember Wengraf, architect of urban infill projects., 

George Williams, appointed by Councilmember Capitelli, retired from the San Francisco Planning Department, board member of the development advocacy group SPUR (San Francisco Planning and Urban Renewal) 

Only Igor Tregub, appointed by Councilmember Arreguin, Shoshana O’Keefe, appointed by Councilmember Anderson, and Sophie Hahn, appointed by Councilmember Worthington, have no discernable connection to the building industry. 

The ZAB has been “studying” the Harold Way project, which is intended to deposit an eighteen-story luxury apartment development on the landmarked site of the Shattuck Hotel and the Shattuck Cinemas, in a peculiar set of bifurcated meetings tacked on before and after its usual monthly scheduled meetings. The study sessions were guaranteed to slip in under the radar of the average Berkeleyans who have jobs and families to worry about, since they started at six p.m., paused from seven until the regular matters were finished at nine or ten o’clock, and then re-started for an almost empty house until the wee hours of the morning. 

Last Thursday, in the rump portion of their official September meeting, commissioners let down their hair as the evening wore on. It was revealing to see them, one by one, starting to justify why they just might consider approving the project in question, based on their own experience in the building industry. It’s now abundantly apparent that unless there’s an earthquake in the meantime there will be the obvious five or six votes for approval. 

A couple of them even pooh-poohed the concerns expressed about the latest plan proffered by Rhoades: to restore the ten cinema screens which would be demolished by digging under the hotel, which was built on an unstable creek bed with a ceramic foundation in 1910. No geotechnical report to confirm the safety of such a scheme has been put forward, but these commissioners implied they trusted the city supervision to make it all work out. 

Other EIR questions were similarly discounted. Said Chair Pinto: “..it saddens me when people say no to the building just for issues about sewer or other sustainable issues because I know those can be mitigated.”  

Well, maybe, maybe not. In the city of Berkeley, whose name will be forever linked to the grievous failure to prevent tragedy at Library Gardens, this “trust me” attitude from a regulator is questionable. 

And this is where I started thinking about puppets. By now it’s widely known (or at least known to the 200 or so citizens who bother to know anything at all about what’s going on in Berkeley) that the mayor and his controlled council majority want this building to be built. And not only that, the mayor at least really really wants to make sure that L.A. financier Joseph Penner makes a really nice profit.  

This became even more abundantly clear when Denise Pinkston, the mayor’s appointee to the ZAB, devoted almost all of her time to arguing that the city council has made a special decision on “significant community benefits” which is supposed to apply to this project only. 

The City Council passed—not a resolution, not an ordinance—but what was widely reported to be an advisory recommendation about how the ZAB should evaluate SCBs in the case of each of the five buildings which may be granted variances to exceed the standard zoning height limit. Commissioners had been assuming that as per statute the final decision would be theirs. But on Thursday Pinkston claimed, with increasingly shrill persistence, that the council intended that for this project alone the SCBs should be limited to no more than $13.6 million. 

“I believe, and I have been told…” she said, that the recommendation for this specific building was mandatory, unlike the other four which were only advisory. Her fellow commissioners, to their credit, seemed to be dumbfounded by this contention, which came up at the end of a long evening.  

Until this theory surfaced, they’d been eagerly discussing divvying up what they’ve taken to calling “the pot”. The developers had opened the bidding with a cleverly calculated list of benefit items which (using creative accounting) added up to more than $20 million, though a major proportion of their proffered bonuses would be nothing more than mitigations of the substantial damage the project would cause, for example rebuilding the theaters after they destroyed them. 

When Pinkston started trying to radically downsize what was required, all the horsetrading came to a halt. If I’d been on the board at that point, I might have wanted to ask Ms. Pinkston exactly who “told” her that the mess o’ pottage from Rhoades, Penner et al. was supposed to be carved out from the recommended formula at this required limit. Could his initials have been T.B.? 

By this time it was after 11 o’clock, and the discussion quickly disintegrated into complete confusion. “I'm going to have to adjourn the meeting…I don't know where we are, actually. I think we have got a wide variety of opinions.” said Pinto. 

That’s an understatement. Myself, I can’t imagine how the commissioners will be ready to approve the project at the special meeting which has been announced (or at least rumored) for Wednesday, September 30. That is, unless they just allow themselves to be guided willy-nilly by whoever is pulling the strings above the stage. Which would, sadly, not be much of a surprise.  

Oh, well. Maybe I can turn the meeting story into a play for my puppets. 

By the way, note to Planning Department staff, copied from the ZAB web page: 

*September: Thursday 9/10 at 7:00 PM

Any month noted above with an asterisk (*) has only one meeting due to a City Holiday, Holiday Observance or City of Berkeley Reduced Service Day. 

So is there really a meeting on September 30? None is listed on the agenda page. Please advise.