We're not the only town suspicious about how developer-driven our town has become. Los Angeles is proposing doing something about it, and our new Berkeley City Council should take notice.
Five Los Angeles City Councilmembers are calling on the Los Angeles Ethics Commission to devise an ordinance prohibiting political contributions from developers with projects currently or recently before "city decision makers" - or find ways to inhibit their influence such as requiring elected officials to recuse themselves from land-use decisions if they accept donations from the developer-applicant.
The issue comes up only weeks before a March election in Los Angeles which will put the Neighborhood Integrity Initiative (Measure S) before voters weary of watching what seems like pay-to-play deals influencing planning decisions affecting, or some would say sacrificing, their neighborhoods. Developer Rick Caruso's 16-story building approval came on the heels of $476,000 from his own pockets and those of his associates and family over the last five years.
Donations are not necessarily in and of themselves corrupt, and the Supreme Court's Citizens United decision continues to equate speech with money. But that doesn't mean there aren't ways to curb speech in special circumstances; time, place, and manner, as the Berkeley City Attorney has been wont to say when it comes to panhandling.
The town which was so eager to curb asking for donations near bank machines (Berkeley) or parking meters (Berkeley) or in commercial districts entirely (Berkeley) over the last decade or three can hardly turn its back on the probability that elections almost entirely dominated by developer-related contributions aretilting decisions at all levels in developers' favor.
Local attorney Antonio Rossmann says that if the City Council enacted a prohibition on developers contributing in anticipation of a favorable land-use decision, that measure would probably pass constitutional muster --notwithstanding the U.S. Supreme Court decisions in Buckley v. Valeo and Citizens United. He bases his conclusion on a case he litigated on that very issue nearly 40 years ago.
In 1975 Rossmann won an appeal against the Los Angeles City Council's approval of a Woodland Hills subdivision that violated the city's general plan. That decision and a subsequent California Supreme Court award of public interest attorney's fees award set precedents that stand to this day. But when the case returned to the LA City Council in 1978, the council by an 8-7 vote amended its findings to declare the project consistent with the general plan.
Assessing their loss, according to Rossmann, "the Woodland Hills residents said, 'we just don't have a chance against those developer contributions. So we decided to challenge not only the land-use decision, but also the unfairness of having our case decided by such decision-makers."
Initially the residents prevailed in a blockbuster intermediate court of appeal decision. In an opinion written by one of California's most distinguished jurists, the late Justice Bernard Jefferson, the appellate tribunal ruled that by accepting substantial and coordinated political contributions and then judging the subdivision, the City Council majority denied the residents the "fair trial" guaranteed by California's administrative review statute.
At the inevitable appeal, the California Supreme Court twice put off reviewing the case but on the last day possible (reluctantly, in Rossmann's view) the high court took the case rather than wait for one that reached the opposite conclusion. "It was high drama," Rossmann recalls. "For the only time in his lengthy career, the Los Angeles City Attorney personally argued the city's case." In the end, the Court ducked the constitutional free-speech issue, ultimately ruling that the FPPC disclosure rules preempted a judicial attempt to invalidate the challenged land-sue approval. But, Rossmann concludes, "the Court issued plurality, concurring, and dissenting opinions. Left open was the question of constitutionality if the City Council itself had enacted the prohibition, finding it necessary to preserve the integrity of its land-use decisions. Because these proceeding are administrative in nature, closer to a trial among competing parties entitled to procedural fairness, rather than the enactment of legislation, the California Supreme Court would find such restrictions sufficiently compelling to pass muster under both Buckley and Citizens United.
Rossmann says the issue not only remains open but also worthy; the issue of fair hearings before developer-money-saturated decision-makers is boiling over in Los Angeles because "citizens and now council members think things are out of control out there." He is excited to see that five of the current Los Angeles City Council support restrictions on developer contributions, because "rather than forcing citizens to ask for relief from the judges, the city council could impose restrictions on itself."
The lopsided nature of the donation landscape in Berkeley tilts our elections against our democracy. Our new Mayor and City Council should move swiftly to follow the Los Angeles City Council's lead, so that Berkeley's agenda going forward is decided by people who live here, work here, and have more than commercial interests at stake here. Our human rights and the health of the planet, in this new landscape, matter more than ever.