Planners Halt Berkeley Meeting
They dismiss opinion on conflict of interest
Charles Burress / SF Chronicle 7nov00

BERKELEY -- A surprising legal rebellion gripped Berkeley last night when four city commissioners rejected a city attorney opinion that they should disqualify themselves from a decision on a proposed synagogue.

The commissioners' refusal to disqualify themselves brought last night's meeting of the Landmarks Preservation Commission to a halt.

Many in the crowd of 150 -- a record for a landmarks commission meeting -- stood agape, and veteran observers of city politics said they had never seen such a case. ``Unbelievable,'' muttered one city staffer after the aborted meeting at the North Berkeley Senior Center.

City Attorney Manuela Albuquerque last week advised four of the commission's nine members to disqualify themselves because of a conflict of interest.

The four have prominent roles in the nonprofit Berkeley Architectural Heritage Association, which had criticized an environmental report on the project. Berkeley's Congregation Beth El wants to build a new synagogue on a large North Berkeley lot that is a city landmark -- the site of the former Napoleon Bonaparte Byrne house, first known settlement of African Americans in what is now Berkeley.

In a sharp break with the norm, the four commissioners said last night they would not go along with the city attorney. Albuquerque then advised commission chairman Burton Edwards not to call on them during the discussion.

Commissioner Carrie Olson, one of the four, then called for adjournment, and the motion passed 5 to 2. Two members not affected by the city attorney's opinion were absent.

Olson said the city attorney's opinion ``has far-reaching consequences into our community.''

Albuquerque also said the four commissioners should refrain from other ``quasi-adjudicatory'' decisions that the architectural heritage association has taken a position on. That would have covered most of the projects on last night's agenda and many future ones.

The standoff leaves a cloud over the commission's future and thus over several projects pending in Berkeley. All seven commissioners at last night's meeting are members of the architectural heritage group, and the four covered in the city attorney's opinion are board members or paid staff. When Albuquerque was asked if mere membership should lead to disqualification, she said she would need to consider it.

San Francisco attorney Antonio Rossmann, who teaches land-use law at the University of California at Berkeley, said in a letter to the commission yesterday that the city attorney's ruling ``would impose serious constraints on elected, appointed and employed city of Berkeley officials who also take an active role in community affairs.''

Albuquerque said the ability of the four commissioners to appear as impartial decisionmakers is compromised. Even the appearance of a conflict of interest has been held by the courts to be grounds for disqualification, Albuquerque said.

She said the four commissioners' refusal to follow her opinion could leave the decision-making process ``tainted'' and make the city ``legally vulnerable'' to challenges to the ultimate decision on the synagogue project.

The four commissioners are Olson, Becky O'Malley, Leslie Emmington Jones and Doug Morse.

Leaders of the Live Oak Codornices Creek Neighborhood Association also attacked the opinion.

At issue are a creek on the site, parking, traffic and how the plan recognizes landmark status.

Beth El leaders say they have altered the designs to meet community concerns. The congregation wants to move from its cramped Vine Street home to the nearby Byrne lot between Spruce and Oxford streets.

The Landmarks Preservation Commission was to hold a public hearing last night on the final environmental impact report. It is supposed to make a recommendation on the report and later decide on granting a permit for the project.