Berkeley Neighborhoods Council


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Outside Agencies Affect Berkeley Neighborhoods

PLAN BAY AREA, brought to you by The Metropolitan Transportation Commission (MTC) and Association of Bay Area Governments (ABAG)

Update on BNC's Complaint that Berkeley Representatives Did Not Make Required Reports on Their Participation in MTC and ABAG Meetings Regarding This Issue.

In our August eNEWS we gave you some background on this issue.

Dean Metzger on behalf of BNC filed a complaint with the City on September 30.  2013 stating that Council Member Wengraf, Berkeley's representative to ABAG and Mayor Bates failed to make reports required by Berkeley's Open Government Ordinance regarding the One Bay Area Plan, aka Plan Bay Area.  The complaint stated that this lack of information to the public denied Berkeley residents the opportunity to comment on one of the most important land use and transportation planning processes that will affect the future of our neighborhoods and the community as a whole.  The pertinent section of the Open Government Ordinance is Section 2.06.090 Reports Regarding Regional Bodies:

Council Members who represent the City on regional bodies and commissions shall promptly after attending meetings of those bodies provide to the City Council and the public a report that briefly summarizes the discussion and any action on any item that affects the City of Berkeley.

The Open Government Commission (the same people who also serve as the Fair Campaign Practices Commission) met on October 17, 2013.  Mr. Metzger and other BNC members were present at the meeting.

The staff of the Commission, a Deputy City Attorney, reported to the Commission that:

  1. Staff of the two primarily involved agencies carried out significant public outreach campaigns that invited public input regarding Plan Bay Area and that a workshop on the Plan was held in Berkeley at the Brower Center on May 19, 2011.
  2. Confirmed that Council Member Wengraf is Berkeley's representative to ABAG's General Assembly, but the ABAG Executive Board voted on Plan Bay Area and no rep from Berkeley sits on that body.  They pointed out that Council Member Wengraf placed on the May 29, 2012 Council Agenda an Information Report regarding Plan Bay Area materials distributed to the April 19, 2012 General Assembly.  Staff concluded that since Council Member Wengraf was not a member of the ABAG Executive Board and that she did not attend the meetings of that body, she “had no obligation to report on the outcome of these meetings.”
  3. Mayor Bates presented two Information Reports in 2012 that consisted only of links to those meetings and their minutes.  He attended three regional meetings in 2013, January 18, June 2, and June 26, at which the Plan was mentioned, and did not issue a memo to City Council and the public regarding his attendance at these meetings.  Minutes for the June 26, 2013 meeting have not yet been published, the minutes from the other meetings confirmed the matter was discussed.  Staff confirmed that Mayor Bates did not attend the July 18, 2013 meeting at which action was taken to approve the Plan, and therefore had no obligation to report on that meeting.
  4. After reviewing BNC's complaint, staff thought “it would be helpful to remind Council Members of their reporting obligations, so the City Clerk sent a memo regarding this to all Council Members and the Mayor that included a draft template to aid them in fulfilling this requirement.”
  5. As to the complaint that Berkeley residents were denied the opportunity to participate in this important land use planning process, staff concluded that “the Plan Bay Area appears to have followed a very public process that included substantive input from Berkeley residents” and that even though the Mayor did not submit a report during 2013 on three meetings that included some mention of the Plan, “this did not limit the ability of Berkeley residents to participate in the public process related to the Plan.”

BNC's Comments to the Open Government Commission on 10/17/2013

Your staff report concludes “The Plan Bay Area appears to have followed a very public process that included substantive input from Berkeley residents” However, you have been given no materials that support this conclusion.  You are also advised that the absence of required reports for the meetings that Mayor Bates attended in 2013 did “not limit the ability of Berkeley residents to participate in the public process related to the Plan.”  We agree, it didn't limit the citizens' ability to participate because no one knew about the Plan.  It wasn't a “limitation” it was an “elimination”.

Going through the long list of meetings posted on the Bay Area Air Quality Management District website, a key agency participating in the development of the plan, staff should have included in the missing reports from Mayor Bates a 4/17/2013 meeting of the Board at which a discussion was held on the Plan development process, growth trends and growth strategy.  Also missing is a report on the May 1, 2013 Board Meeting of that same group at which a public hearing was held and a vote taken regarding proposed regulations affecting Foundry and Forging Operations, with specific testimony given from and about Pacific Steel Casting, a topic of long-standing controversy in Berkeley, both for and against.  While the 5/1/2013 hearing did not concern Plan Bay Area, it is one more example of how the current requirements regarding reports from regional bodies representatives has not been followed.

As we looked through huge amounts of information regarding this issue, we discovered that the Alameda County Transportation Commission sent a letter to MTC and ABAG on May 15, 2013 commenting on Plan Bay Area.  That letter was reviewed by the Commission at their meeting of April 25, 2013, presumably to inform Commissioners of the letter and possibly to get their approval.  Councilmember Capitelli represents the City of Berkeley on the Commission.  However, we were unable to find minutes from that meeting on their website so it is not known if Mr Capitelli was present, or if any action was taken by that Commission.  We do know that a letter was sent, as it is listed on the MTC website, and we do not recall seeing a report from Mr. Capitelli on a Council agenda regarding that letter.  Yet another example.

Looking at the 46 separate listings that your staff cites as examples of the “significant public outreach” that had been carried out (point #1 above), only 1 meeting refers to Berkeley, another maybe involves Berkeley.  This later meeting refers to a 3/20/2011 meeting held in the City of Alameda for elected officials from North County.  The specific Berkeley meeting occurred on 5/9/2011 in Berkeley at the Brower Center.  After an exhaustive search we can find no mention anywhere regarding how notice of this meeting was given and who might have attended.  We also don't know who attended the March meeting and what kind of information was distributed to the public, if any.  It really wouldn't have mattered anyway as the cover letter transmitting this list of meetings is dated 6/3/11, one to two months AFTER each of the above so-called Berkeley meetings were held, precluding any attendance by the public through the information provided at either of them.

The link given in that report regarding Council Member Wengraf's Information Report will now give you only the most current posting, so one simply can't tell what was in that link on May 29, 2012.  The attachments to the Report, which are indeed appreciated, give some information but only generally, and they are not specific as to how Berkeley might be affected, and there is no information whatsoever about public meetings that citizens could attend.  In short, there is nothing to really prompt a resident to further investigation and/or participation.

Should we assume that Council Members did not know or understand the importance of the issue and how Berkeley might be affected?  Each member of the Council got a copy of a letter dated 6/28/2011 from then City Manager Kamlarz to ABAG and MTC, raising specific concerns that Berkeley had at the beginning of the whole process, concerns about Berkeley Priority Development Areas and whether the “holding-capacity” of those PDAs would “feasibly contain the increased numbers suggested for them over the 25-year time frame.”  The staff concerns in that letter are quite clear and enough to make an assumption that this issue was something to pay attention to.

Since an ABAG General Assembly is held annually, we checked and found that another Assembly was held on 4/18/2013.  No minutes have yet been posted so it is not known if a Berkeley representative attended that meeting or not.  But the notice regarding the meeting states that “Plan Bay Area anticipates growth in existing downtowns and neighborhoods.  Adoption is expected in 2013.  The Spring General Assembly will feature experts, elected officials, and planners with experience shaping successful places in a variety of communities across the region…”  We have not found a Council Information Report regarding that meeting.

So, how does one determine whether “substantial” numbers of Berkeley residents gave input on the Plan Bay Area report and EIR?  Well, we all are familiar with the fact that Berkeley residents write comments regarding EIRs, and usually they do so in large numbers.  We read all the comments from individuals to the Plan Bay Area Draft EIR.  There were around 249 written comments.  Identification was redacted but frequently besides giving their name, people would state their residency somewhere in the body of the comment.  We found exactly 3 who admitted they lived in Berkeley, and 11 maybe, but unlikely.  Of the three comments from Berkeleyans, two are pretty well known, one of whom complained in his written comment about the lack of available information in our City.  We also looked at the oral comments for the one public hearing that was held in Oakland on 4/16/2013 and out of 16 speakers we could identify only one who was from Berkeley because she was one of the three identified from the written comments.

BNC asked members of the Open Government Commission to ask themselves in their role as guardians of open government whether it's enough to give residents just a link to a complicated website about such a big and many-sided issue like the Plan Bay Area and then expect that individual to figure out the intricate details regarding how his/her community might be affected?  Is it enough to report ONLY on meetings our representatives attend, or on meetings ONLY when there is a vote?  By any stretch of the imagination, the answer, unfortunately, would be NO.

The Open Government Commission discussed this matter at some length and decided that they wanted to consider amending the Section of the Open Government relating to reports required of representatives to regional bodies, in order to expand and clarify its meaning.  This process will probably occur late this year or in January of next year.  BNC was told we would be informed as to the date this discussion would occur.