Dysfunctional commission stymies Beth El permit

Sparks flew again last week at Berkeley's Landmarks Preservation Commission meeting when it considered Congregation Beth El's request for a permit to make alterations to the site it purchased to build a new synagogue.

Although the proposed project has had its share of controversy, this time there was a new twist. The issues weren't between neighbors and congregants. Both groups were well behaved. The difficulty was with the commission itself — when four of its nine members were disqualified from participating in the decision because of a conflict of interest and asked to step down by the chair of the commission, Burton Edwards.

They refused.

"Stepping down doesn't mean leaving the table," said Commissioner Leslie Emmington Jones, one of those who was disqualified. "We're doing our duty."

The disqualification arose from a letter that was sent to the Berkeley Planning Department by the Berkeley Architectural Heritage Association last September taking a position adverse to the Beth El project. Three of the Landmarks Preservation commissioners are also on the board of BAHA, and one commissioner is a paid member of the BAHA staff.

In October, Berkeley's city attorney, Manuela Albuquerque, issued an opinion saying that the four commissions were disqualified from participating in any decision in which BAHA has taken a position. Beth El is not the only case in which these commissioners have been disqualified. Albuquerque found that because of the four commissioners' positions with BAHA, they had a conflict of interest and could not be fair and impartial when sitting as members of the Landmarks Preservation Commission.

"It is the prerogative of the commissioners to recuse themselves," said Commission Becky O'Malley, who was one of the four. "The chair cannot exclude us."

Although the hearing proceeded, much of the time it was less than orderly. O'Malley continually interrupted, spoke over other commissioners and had to be told repeatedly by Edwards that she was out of order. She passed notes to commissioners who were not disqualified, made faces, shook her head and, at one point, left her seat, walked in front of the commissioners' table and got a speaker's card.

When Edwards invited those in favor of the Beth El project to make their public comments, another disqualified commissioner, Carrie Olson, got up, left the room and didn't return until it was time for the opposition to speak.

"We are a dysfunctional commission," said Commissioner Robert Kehlmann. "There's no way we are going to get a vote out of this commission."

In order for the commission to take any action it needs five votes, which, in this case, means all the remaining commissioners must be in agreement. At the Jan. 8 meeting, the commission could not even get the required five votes to close the public hearing.

"It is cruel and unusual treatment to the public to make them keep coming back month after month," Kehlmann said. Until the public hearing is closed, the board cannot take any action and the matter stays on the commission's calendar.

Hearings, formal and otherwise, have been going on in this case for close to a year. They began early last year when Beth El invited its future neighbors to view the plans for the new synagogue and to air their concerns. After several of these meetings, a draft environmental impact report, which incorporated this information, was prepared and filed with the city. Then there were several more hearings before Berkeley's Zoning Adjustments Board, where neighbors again voiced their objections to the project. Finally on Dec. 14, the ZAB certified the final environmental impact report.

The next step is the use permit, which the ZAB has 90 days to act on. On Jan. 11, the ZAB had its first hearing on the issuance of a use permit. Although public testimony was taken, no decision was made and the hearing was continued to Jan. 25.

In addition to a use permit, Beth El must also obtain an alterations permit from the Landmarks Preservation Commission because the site has been given landmark status by the city of Berkeley. It was once the home of Napoleon Bonaparte Byrnes, one of the first settlers in the area, and later became the home of Berkeley's first free African-Americans.

Both boards have 90 days from the date the Final EIR was certified to act on the permit requests. If either fails to act or can not get the requisite five votes, the permit is deemed approved by operation of law at the expiration of the 90 days. Then the decision can be appealed to the City Council. Because of the nature of this project and the community's response, everyone agreed that the question of permits will ultimately be decided by the City Council.

The Landmarks Preservation Commission will meet again on Monday.