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COMMENTARY: R a Measure Too Far
Dwight Worden | City Council Member

Note: Initiative supporters declined Sandpiper invitation to submit for this issue. They have promised a commentary for October.

I support the right of Del Mar voters to vote on major projects. The best way to do that is to vote down the voter approval for certain development projects, and take the Watermark Project to vote by referendum if needed.

As a land use attorney practicing for 30 years (now retired) I specialized in initiatives and referendums. I drafted more than a dozen successful measures statewide, in each case representing grass roots citizen organizations like the citizens group supporting the Del Mar initiative wanting more control of important decisions in their cities. I drafted Del Mar’s Measure B (guaranteeing the right to vote on major projects in the downtown) and the Beach Protection Initiative (restoring public beach to the public). Both passed and have been successfully implemented.

I drafted San Diego’s “Prop A” (voter approval over development in the Future Urbanizing Area), Carlsbad’s 1986 Measure (voter approval on large city expenditures), and similar citizen backed measures in Coronado, Chula Vista, Oceanside, Loma Linda, Pasadena, Redlands, Riverside, and elsewhere. I am proud that the overwhelming majority passed at the polls and that not one was invalidated in the courts. I know how to do these successfully. I have litigated initiative and referendum cases and I have written and lectured on the subject. I ran for Del Mar council in part on a platform that supports this right of the people to vote on major projects.

With this background, it pains me greatly to feel compelled to oppose the Voter Approval For Certain Development Projects Measure (commonly called the “Watermark Measure”) that will be on the November 8 ballot. I assume the intentions of its proponents are good—to allow Del Marians to vote on Watermark and other large projects with the potential to change our town. Unfortunately, its contents do not deliver on the intentions, and the details matter—it is its precise language that will become law, not its intentions.

Here are my major problems with it:

• It contains provisions that are, unintentionally, but nevertheless, clearly illegal. In my judgment these will embroil the city in costly litigation trying to defend it (this is a city’s obligation when a Measure passes). The city will most certainly lose such litigation with the result that key parts, if not the entire Measure, will be invalidated—an expensive and negative experience. The city attorney has documented many of the very serious legal shortcomings of the Measure. See, www.delmar.ca.us/AgendaCenter/ViewFile/Agenda/07052016-1181

• It puts the city on a path to being out of compliance with state housing laws. State law already on the books allows courts to take away local control and order zone changes to accommodate affordable housing where this kind of violation occurs. The Measure could, unintentionally, cede important local control over zoning decisions to the state or to the courts, and that would be a disaster.

• The Measure doesn’t apply just to Watermark, which is what most people want to vote on. It applies to every commercial zone in town. It applies to many, if not all, zone changes and projects in these zones, down to the level of being triggered by a variance request. None of these other areas has a pending project or identified problem with current zoning that warrants concern, but the Measure will have serious negative unintended consequences throughout town.

• It conflicts with Measure B, already voter approved and applicable to the downtown, and makes no attempt to harmonize the two.

• It conflicts with the voter-approved Garden Del Mar Specific Plan for 10th and Camino Del Mar, approved by a stunning 85% of voters, with no attempt to reconcile the two.

Recommendation: Use the Referendum process
Since I don’t like to be negative, my recommendation for the community to achieve the goals of the Measure while avoiding pitfalls is use the referendum process. To honor the wish of those who want to vote on Watermark: use the referendum process. The referendum process is what successfully took One Paseo to task, and it can be used in Del Mar the same way. If the Watermark project makes it through the City process (remember, it hasn’t even started that difficult road yet) signatures of 10% of the voters can put it on a referendum ballot. That’s clean, legal, and honors what the voters want—a chance to vote on Watermark-- without all the troublesome unintended baggage of the current Measure.

Aren’t we all in a better position to vote on Watermark after we see what the final project looks like, after we see what the EIR says, and how the project is reshaped during DRB, Planning Commission, and City Council review, with all the community participation that almost always has served to re-shape and improve projects in Del Mar? Remember, Watermark will require a Community Plan Amendment, and that requires a 4/5 vote of council or voter approval. If Watermark can’t make it over that steep hill, there is no need for voter action. Residents can actively participate in that process and evaluate what will almost certainly be a different project than as initially proposed – and then, if needed, pursue a referendum.

If there is community concern about future projects that might warrant voter approval (I’m not aware of any projects other than Watermark that are pending or proposed raising such concerns) we can again use the referendum process, or we can craft a better Measure to guarantee that right and put it on the ballot. I know how to do that, and if that is the community desire, I’ll work to that end. But, first step, we need to clear this well intended but poorly drafted Measure from the books by voting it down.

 

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