BERKELEY -- Calling a description of the Downtown Initiative slated to appear on Berkeley's November ballot "flagrantly inaccurate and biased," Councilman Jesse Arreguin, in his capacity as a registered voter in the city, is heading to court seeking changes in the ballot question language written by Mayor Tom Bates, an opponent of the initiative.

But Bates, whose support for the draft ballot question was joined by five council allies in a June 24 vote, maintains his wording is neutral. "I attempted to write it in a fair, unbiased manner," he said.

Characterizing Arreguin's criticism as "a lot of hot air," Bates noted that Arreguin, who proposed the initiative, had drafted his own ballot question, which was rejected by the council.

Arreguin said he'll file the lawsuit in Alameda County Superior Court within a week.

The approved ballot question reads: "Shall an ordinance amending Zoning Ordinance provisions for downtown Berkeley be adopted to: reduce height limits; impose significant new requirements for new buildings over 60 feet; eliminate current historic resource determination for Green Pathway projects; establish a Civic Center Historic District overlay; amend LEED requirements; change parking requirements; restrict some permitted uses; change prevailing-wage requirements for workers in specified categories; and reduce hours of operation for businesses selling or serving alcohol?"


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Arreguin charged that rather than listing the most significant parts of the initiative, Bates cherry-picked the elements he thought would have least appeal.

"The most significant elements of the initiative are that (1) the Public/Community Benefit requirements for buildings over 60 feet are increased ... and (2) buildings over 75 feet provide additional public benefits," Arreguin wrote in an analysis he sent to the city attorney June 21. These elements are not included in the ballot question.

Bates countered that "The initiative is 28 pages and it covers a variety of subjects" that are difficult to distill into 75 words.

Councilman Laurie Capitelli, who voted to support Bates' ballot language, said he thought the mayor did address significant elements of the initiative.

In particular, he said, the current ballot question mentions elimination of the possibility developers could get early Landmarks Preservation Commission approvals by choosing the city's "Green Pathway," an option under current law that expedites the application process in exchange for providing community benefits and a higher environmental standard.

One of Arreguin's objections is that Bates' ballot question references, but does not explain, a "historic district overlay."

The ballot question Arreguin originally drafted states that the initiative would preserve "Berkeley's historic Civic Center for civic uses, including the Post Office."

But Capitelli again cited the word limit, saying it precludes more complete explanations. "Hopefully people will read not just the ballot question, but the city attorney's description, and will look at the ballot arguments pro and con," he said.

Nonetheless, Capitelli conceded that he'd have no problem with some changes. "There are a couple of words in here (such as) 'impose' which (Arreguin) has a problem with. I can see it has a slightly negative connotation," he said. "If we had said, 'require,' I wouldn't have minded changing that word."

And on the question of the prevailing wage -- the initiative adds categories of workers -- "I would say 'change' (prevailing wage requirements) is less precise than some other word, such as 'expand,'" Capitelli said.

Bates said filing a lawsuit over ballot wording is standard practice. "People don't agree with ballot language; you go to court and you resolve it," he said, adding, however, that Arreguin was taking too long to file the suit.

"He's been threatening this the last two weeks," Bates said. "He's putting the court in a really precarious position to make a decision almost at the last moment."

Arreguin said it's taking time because he can't afford a lawyer and is putting together the suit himself.

It's worth the effort, he said, so that "voters get neutral information so they can make their own informed decisions and not have the government spend taxpayer resources on partisan advocacy."