Measure R Backers Suffer Defeat in Court – Teapot Tempest Ends

An Alameda County Superior Court Judge has tossed out virtually all of a lawsuit filed by Measure R backers against the official ballot description of the measure.

The Sept. 2 ruling by Judge Evelio Grillo brought a quick end to an expensive legal tempest that began with a lawsuit filed on Aug. 20 by Measure R sponsor Jesse Arreguin and four other Measure R backers who were unhappy with the official ballot description of Measure R. The official ballot description had been adopted by a two-thirds majority of the Berkeley City Council.

The lawsuit claimed that all of the descriptions in the 71-word ballot description violated requirements for accuracy and neutrality. The Council’s two-thirds’ majority defended their description as accurate and unbiased. Arreguin’s suit proposed a different version of the ballot description and asked the court to order that it be substituted.

Judge Grillo, however, did not accept any of the alternative descriptions requested by the 187-page suit. He said that 66 words in the 71-word official description meet the required standards for accuracy and neutrality and can remain. He ordered that only five words be changed, but not according to the changes proposed by the plaintiffs. Instead he proposed his own changes, which removed three words and also replaced two words.

Below is the official ballot description adopted by the City Council with Judge Grillo’s changes. The words that he removed are shown by strikethrough text, and the words that he inserted are underlined.

Shall an ordinance amending Zoning Ordinance provisions for downtown Berkeley be adopted to: reduce height limits; establish 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 specific categories; and reduce hours of operation for businesses selling or serving alcohol?*

“I do not object to the judge’s changes in the ballot question, which are relatively minor,” said Mayor Tom Bates, sponsor of the ballot description that was adopted by the Council super-majority. “The text remains an accurate and neutral summary that gives voters a clear description of a complicated, 28-page initiative that has left many people confused.”

* Judge Grillo’s ruling upheld the Council-approved ballot description, except for two small exceptions:

1. He said that “reduce height limits” is “ technically accurate but is misleading” because Measure R’s changes to height limits are not uniformly applied in the different areas of the Downtown. Measure R clearly lowers height limits in three of the five Downtown zones that would be regulated by the measure. In the other two zones, Measure R would substantially increase the difficulty of obtaining exceptions to height limits. Backers of Measure R argued that exceptions to the height limits could be allowed in four of the zones if certain requirements are met, but the same thing is true under the current height limits. Not only would Measure R reduce height limits in  most areas, it would impose such onerous new requirements for exceeding the height limits that buildings over 60 feet would be financially infeasible, according to .

2. Judge Grillo objected to the word “significant” because, in his view, the word “contains a value judgment and is implicit advocacy.” The City Council super-majority argued that “significant” does not imply a value judgment one way or the other.

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