The last case City Attorney Zach Cowan tried in court for Berkeley was an anomaly.
On July 20, he appeared in a Hayward courtroom to argue that Berkeley was correct in requiring a developer to get a demolition permit to tear down a single-family home at 1310 Haskell Street and build three others in its place.
It wasn’t an argument Cowan agreed with – in fact, he had tried to persuade the City Council that its requirement violated the state’s Housing Accountability Act – but as the Berkeley City Attorney, he was duty bound to argue it. His clients, after all, were City Council members, and they had voted in May on an action that they knew would land Berkeley in court.
The judge even noted from the dais that Cowan was in a tricky position. He had given his clients’ legal advice they had rejected, and then he had to argue a position he did not believe in before the court.
The court ruled against Berkeley.
Despite the awkwardness of his position that day, Cowan actually considers himself lucky. He has been working as an attorney for Berkeley for 24 years and that was the only time he had to argue something with which he disagreed.
“It was a first, actually,” Cowan said recently over coffee at PIQ in downtown Berkeley. “But that’s what you do to represent your client. Having only done that once is pretty remarkable.”
Cowan, 60, is retiring as Berkeley’s top lawyer today. On Tuesday, at his last City Council meeting, he was greeted with a standing ovation and a generous thank you from a number of council members and staff.
“Zach has been an amazing public servant,” said City Manager Dee Williams-Ridley. “He’s been one of the most responsive, confident, no-nonsense litigators I have ever met. I am profoundly grateful for his service.”
“We have been well-represented in the courts, very creatively and thoroughly,” said City Councilwoman Linda Maio.
Cowan gets a standing ovation from council and most of audience. #berkmtg
— Berkeleyside (@berkeleyside) July 26, 2017
Cowan, who grew up in Castro Valley and who attended UC Hastings College of the Law in San Francisco, was a private attorney who specialized in land use and environmental law before he came to work for Berkeley, a specialty he has been able to use frequently in the past few decades. Cowan had sued UC Berkeley over the construction of Soda Hall and had challenged it successfully in a CEQA suit over the construction of UC Berkeley’s Northwest Animal Facility. Berkeley filed an amicus brief in that last case.
He came to work as a deputy city attorney in 1993, was promoted to assistant city attorney a short time later, and became acting city attorney in December 2007, after the retirement of Manuela Albuquerque. Cowan was appointed city attorney in October 2009. He is paid about $200,000 a year.
His successor is Farimah Brown, who worked as a city attorney in Livermore, Oakland and Alameda.
“Berkeley is always going to do the right thing”
One of the reasons Cowan gave up his private practice to work for Berkeley – besides the fact that he and his wife had just moved from San Francisco to Berkeley with their two children, with a third to come later – was that he admired the city’s values.
“I always thought if I had my pick of places to work it would be Berkeley, because no matter how silly or stupid it can be it’s always going to do the right thing,” he said. “There are not a lot of government jobs where you can have the confidence that it’s never going to bother you representing them. Berkeley isn’t in the business of burying creeks and grading hills and putting up McMansions. If Dublin had called and said ‘we would like you to work here,’ I would have said no.”
Cowan oversees a staff of eight lawyers who all share that sense that Berkeley has values worth preserving, he said. The attorneys in the office spend much of their time reviewing staff reports and proposed ordinances to spot potential legal issues and keep the city out of court.
“Most of what we do is not litigation,” said Cowan. “It’s done with an eye toward potential litigation.”
The attorneys also frequently defend the city against people who have tripped on the sidewalk, or who are happy or unhappy when projects are approved or denied.
Cowan’s expertise in land use policy, particularly CEQA, has been helpful as Berkeley has implemented a Downtown Area Plan and changed zoning in various parts of town.
Berkeley has been sued several times over its approval of environmental impact reports, most recently when two residents sued over the EIR for the 180-feet high, 302-unit project at 2211 Harold Way (Berkeley prevailed).
“He kept me and the city out of trouble”
Most of the time, Berkeley’s position has stood up in court because of Cowan’s advice and perspective, said Dan Marks, who stepped down as the city’s former planning and development director about five years ago.
“He kept me and the city out of trouble innumerable times, which is important for a city attorney to do, to give advice that says ‘Well if you go in this direction there will be some potential legal problems,’” said Marks. “He identified legal problems early on and he addressed them quickly before they became serious problems.”
Cowan said he has gotten the most satisfaction from a handful of cases, some of which went up to the appeal level and then were published by the courts, indicating they had state-wide implications. One involved the First Presbyterian Church’s attempt to tear down a structure to evade Ellis Act requirements, he said.
He is also proud of an effort he and Wendy Cosin, a former planner, led consolidating lots on Panoramic Hill to prevent development the city could not service, he said. He is also proud of Berkeley’s role in challenging, through friend-of-the-court briefs, President Trump’s edicts against sanctuary cities, and the ban on immigration from certain Muslim countries.
There have also been numerous high-profile and controversial cases, such as those brought by people who said they were mistreated by police during the Black Lives Matter protests in 2014, the ordinance requiring retailers to warn customers about the potential radiation dangers of cell phones, the push by the U.S. Postal Service to close the main post office on Allston Way, a lawsuit contending that Berkeley police caused Kayla Moore’s death, and the numerous cases filed by Chris Smith, the former owner of Forty Acres, the medical cannabis collective, among others.
The question of how Berkeley treats its homeless residents – whether they can set up tents on public property, how much room they can take up sitting down on the sidewalk – has also been interesting, said Cowan.
“People do municipal law because they want to be able to see the difference they can make,” said Cowan, referring to himself. “You do that here. You get that opportunity. That’s different than being someone in a giant bureaucracy that might have a national scope but your part in it is so tiny you’re a cog.”
On council meetings: ‘There are moments…’
One thing Cowan will not miss is the long City Council meetings. While the issues can be fascinating, it can be difficult to hear the same public comments meeting after meeting, he said.
“They are quite interesting often but there are moments when I am thinking my life is ticking away and I am sitting here and what am I listening to?” he said. “You tend to hear similar things on more than one occasion.”
He is also concerned that Berkeley passes so many ordinances that it cannot enforce them all – an opinion he has shared with other staff and City Council members, he said. Part of that is an enthusiasm problem. The city has nine council members, many of whom have lots of ideas that they want to turn into law. But Cowan thinks it does residents a disservice to adopt laws that cannot be enforced because of Berkeley’s limited resources, he said.
“We love to adopt ordinances that are good and are good policy,” he said. “They sound good but they don’t execute themselves for the most part. It’s not quite a broken promise but it’s a responsibility when you have an ordinance to enforce it.”
Cowan plans to go out quietly, with only a small party honoring his years of service. But City Councilwoman Susan Wengraf noted Tuesday night that Cowan lives in her district. She invited him to return to City Council meetings any time he felt like.
Cowan does not have firm retirement plans, but sitting through yet another five-hour meeting is certainly not among them.