City of Berkeley v. Voters of Berkeley Averted

The last time we picked up the seemingly endless saga concerning the mere 1 to 1.5 miles of bus-only lanes proposed for the Berkeley leg of AC Transit’s BRT project along Telegraph Avenue, the Berkeley Daily Planet had propagated an outright lie, alleging that the San Leandro City Council had already “opted out” of its portion of the project’s bus-only lanes — which the Council had not, in fact, done. A few months ago, though, the beginnings of a ballot measure were in the works, aiming to stop BRT once and for all, and then, just yesterday, the Chron reported that the anti-BRT contingent had gotten enough signatures to put the measure on this November’s ballot. The measure would require voter approval to set aside bus-only lanes (or any dedicated HOV lane) on any street owned or controlled by the City of Berkeley. Specifically, the initiative would require creation of a “designation plan” involving more impact analysis, possibly costing an additional $250,000 to $500,000 per project to prepare, and voters would then have to approve the designation plan. The designation plan is itself quite vague, requiring enough information to be given such that “a reasonable person can assess how the designation and use will affect them.” There is also a possibility that modifications to the project made after the close of the planning process could themselves require a separate designation plan and another vote. In other words, if the initiative proposed for this November’s election is approved by voters, it would significantly stall the BRT project, because no dedicated bus lanes in Berkeley could be reserved without the vote. These delays will make it all the more difficult to obtain the varied array of funds required to complete the project.

The voter measure, as the Chron correctly noted, is quite embarrassing for a city that prides itself on its (increasingly dubious) claims of progressivism.

The Berkeley City Attorney, however, has not been so keen on the voter measure. Their report (link to PDF here) points out that the measure could contradict various provisions in the Transportation Element of Berkeley’s General Plan. Policy T-2, which “encourages regional and local efforts to maintain and enhance public transportation,” has a subsection that specifically references a BRT action:

Policy T-2(A)(3): Add transit-only or transit/HOV-only lanes where appropriate on any streets or portions of streets that are part of the city’s transit network.

Policy T-4 is an explicit transit-first policy provision that incorporates a transit network map; the map is listed separately under Policy T-55. The map identifies Telegraph, Shattuck, Bancroft, and Durant — the very streets outlining the probable BRT route through Berkeley — as “streets that are necessary for efficient and effective transit services,” and which are the “highest priority for transit improvements, such as bus shelters and planned improvements that may serve light rail or ferry services.” In other words, the proposed BRT project is essentially a direct implementation of Transportation Element policies. The pro-automobile, anti-transit voter initiative, on the other hand, would represent a new departure, possibly requiring a General Plan amendment to dilute the Transportation Element’s unequivocally transit-first language.

The Berkeley City Attorney also raised the possibility that the voter initiative violates California Vehicle Code § 21655.5(a), which endows the City Council with the authority to reserve HOV lanes for roadways in its jurisdiction, i.e. the city streets. This section states:

The Department of Transportation and local authorities, with respect to highways under their respective jurisdictions, may authorize or permit exclusive or preferential use of highway lanes for high-occupancy vehicles. Prior to establishing the lanes, competent engineering estimates shall be made of the effect of the lanes on safety, congestion, and highway capacity.

The City Council considered taking legal action in light of the City Attorney’s analysis, but at tonight’s closed session, decided to “honor the initiative process” and not take legal action after all, notwithstanding the initiative’s conflict with the several provisions enumerated above. So the march to November and the fight for better transit continues. The ever-committed Friends of BRT deserve a word of thanks for their tireless efforts, both in following the twists and turns of this saga, and in their attempts to imbue the citizens of Berkeley with at least a modicum of planning sense.