Porta-Potties Can’t be Improved On: Parks Boss

No improvement possible: Ferris

Parks boss Scott Ferris told an audience of about 25 members of the public at the South Branch Library Saturday morning that the porta-potties now in Berkeley parks cannot be improved on.  At least not with T1 bond money. 

Voters passed the T1 bond last November by 85 per cent.  The measure raises money “for improvements to existing city infrastructure and facilities,” according to its title. But according to Ferris, porta-potties are not “existing city infrastructure and facilities.”   “Infrastructure and facilities” only means buildings or structures, Ferris claimed, and porta-potties — even if they’ve been there for 25 years — aren’t structures.  Therefore, according to Ferris’ legal analysis, none of the $100 million bond money can be spent to improve on them.  

Ferris’ analysis of the bond language emerged for the first time during the lightly attended public session, the third of three on T1 bond spending.  The language of the bond requires a “robust public process to obtain input.” This time, Ferris and other Parks and Public Works staff restrained themselves by killing only an hour and a quarter with a droning recital of their selected projects. Unlike in the first event on March 18, independent literature was permitted on the table, and speakers were allowed to address the whole group, small as it was.  

After the public comments period, where two speakers (retired County Superintendent of Education Sheila Jordan, and I) made a case for better bathrooms, there was a noticeable change of mood among the assembled commissioners.  Questions were asked and words were spoken from the commissioners’ tables in favor of improving on the porta-potties.  It was in response to these urgings from the commissioners’ table that Ferris floated his novel legal argument, not heard before, that porta-potties aren’t within the scope of “existing city infrastructure and facilities” and therefore bond money can’t be spent improving on them.  

Ferris’ legal analysis surprised several commissioners who were familiar with the text of the bond. The bond language nowhere limits “existing city infrastructure and facilities” to buildings or structures. The word “structures” doesn’t occur.  The only occurrence of the word “buildings” in the bond is in a preliminary paragraph where it says “public buildings and other facilities.”  That should make it clear, one would think, that the bond is in no way limited to “buildings” but also includes “other facilities.” Porta-potties, although technically they may not be “buildings,” are very definitely “facilities,” and therefore squarely within the scope of the bond. It would seem. 

If the bond doesn’t allow building restrooms, asked one commissioner, where does it allow building bioswales?  What’s the difference?  Bioswales, one of the projects that bears Ferris’ stamp of approval, are new construction of water control features in areas where such features do not now exist.  Ferris had no immediate answer but promised to get back to the questioner after consulting legal counsel.  

We’re waiting. 

The full text of the bond is below.

WHEREAS, this resolution is adopted pursuant to and in conformance with Chapter 7.64
of the Berkeley Municipal Code; and
WHEREAS, the City’s existing infrastructure is critical to protecting the public safety and
welfare and enabling the residents of Berkeley to have a high quality of life:

• Streets and sidewalks provide for transportation and accessibility for both the
general public and public safety personnel.
• Storm drains and green infrastructure projects protect the public from flooding and
improve the quality of runoff into San Francisco Bay.
• Senior Centers provide important services for the City’s seniors, including
educational courses, activities, social support, emergency shelters in disasters,
and meals.
• Parks and recreation centers and facilities provide recreational, educational and
social opportunities and support for children and families, and recreation
centers can also function as emergency shelters in disasters.
• The City’s public buildings and other facilities are both important cultural resources
in themselves and provide public services to the residents of Berkeley.

WHEREAS, the City’s existing infrastructure and facilities, including the types of
infrastructure and facilities listed above, are in need of significant repair, renovation,
replacement, or reconstruction (the “Improvements”) so that the public can continue to
benefit from them; and
WHEREAS, existing funds and funding sources are inadequate to pay for the
Improvements that are necessary in the short term; and
WHEREAS, the City’s existing and future infrastructure is critical to protecting the public
safety and welfare; and
WHEREAS, documented existing infrastructure and facility needs substantially exceed
$100,000,000; and
WHEREAS, the City Council has therefore determined that the public interest requires
additional funding for the Improvements.
NOW THEREFORE, BE IT RESOLVED by the People of the City of Berkeley that the
public interest requires the issuance of a general obligation bond in the amount of
$100,000,000 to fund the Improvements.
BE IT FURTHER RESOLVED the People of the City of Berkeley that:
A. Proceeds of bonded indebtedness shall be used to fund the Improvements. In
addition, 1% of the bond proceeds shall be available for functional art integrated into
Improvements that are paid for by bond proceeds, as and to the extent determined by the
City Council.
B. Each year as part of the budget process the City Manager shall provide to the
City Council a comprehensive report of funds received pursuant from any bonded
indebtedness authorized by this resolution and how they have been expended in an
equitable manner throughout the City, listing all specific projects on which they have been
C. Subcommittees of the Public Works Commission and the Parks and
Waterfront Commission shall engage in a robust public process to obtain input, and will
jointly report to the City Council on an annual basis regarding projects funded by the
bond and bond expenditures.
BE IT FURTHER RESOLVED the People of the City of Berkeley that:
A. The estimated cost of the Improvements to be funded by any bonds issued
pursuant to this measure is $100,000,000, although the total cost of all identified
infrastructure and facility needs is substantially in excess of $100,000,000.
B. The amount of the principal of the general obligation indebtedness (the
“Bonds”) to be incurred shall not exceed $100,000,000.
C. The estimated cost may include legal and other fees and the cost of printing
the Bonds and other costs and expenses incidental to or connected with the issuance
and sale of the Bonds.
D. The proceeds of the Bonds authorized to be issued by this resolution shall be
used to finance construction of the Improvements and functional art integrated into the
Improvements, to pay any fees and costs in connection with the issuance of the Bonds,
including but not limited to, legal fees and bond printing costs.
E. The maximum rate of interest to be paid on the Bonds shall not exceed six
percent (6%).

Source: Alameda County Registrar of Voters 



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