Citizen-initiated measure headed to November ballot

This November Del Mar residents will get to decide whether voter approval should be required for sizable developments citywide.

Rather than adopt an ordinance they didn’t support, the Del Mar City Council on July 5 agreed to place a citizen-initiated measure on the ballot that would require voter approval for development projects in any commercial zone that are 25,000 square feet or larger by amending the community plan, housing element and municipal code.

“I recognize the people’s right to put this on the ballot, and I think it’s an important right,” Councilman Don Mosier said. “I regret that the proposed ordinance wasn’t better written.”

A group opposed to the size of Watermark Del Mar, a proposed 48-unit multifamily complex for the corner of Jimmy Durante Boulevard and San Dieguito Drive, submitted a petition to the city on May 18 with 505 signatures from residents supporting the ballot measure.

Only 286 signatures, representing 10 percent of the registered voters in the city, were needed to qualify the measure for the upcoming general election. San Diego County Registrar of Voters confirmed on June 24 that the measure met the required number of signatures.

Spearheaded by Arnold Wiesel, who lives near the project site, the measure asks if voter approval should be required for developments in a commercial zone that are 25,000 square feet or larger, allow a density bonus or require a specific plan, a zoning code change or an increase in the building height limit, floor area ratio or lot coverage.

“This city has spoken very, very loudly through its petition,” Wiesel said to the council.

“You’re supposed to be representative and I’m sure that’s an important goal for you. Get on board. Let’s do this. The city just wants to have a say in what happens.”

Proposed by Watermark DM LP, a partnership between San Dieguito Land Partners and Kitchell, Watermark includes 48 units that range from studios to three-bedrooms in one- and two-story buildings. The project also includes 108 parking spaces — 96 assigned stalls for the units and 12 guest stalls — in an underground structure, a pool and spa area and a recreation room.

The 2.3-acre lot is used for parking during special events at the Del Mar Fairgrounds.

Because the land is currently zoned for commercial use, the lot would have to be rezoned as residential to move the project forward. A number of other changes and permits would also have to be approved by the city and California Coastal Commission.

To streamline the process, the council voted in July 2014 to allow the developer to use a specific plan. The specific plan process sets a special set of development standards for a specific geographical area, creates a land use designation and zone for the property, and requires opportunities for community participation throughout the process.

Although Watermark inspired the initiative, Wiesel said in a previous interview that he and his group are looking beyond the proposed project.

“This is not about Watermark,” he said at the time. “This is about projects of uncharacteristic huge density that destroy our values and the beauty of Del Mar. It’s about what could happen to the community if the community can’t be involved and have a say.”

With the signatures verified, the council had to decide whether to adopt the measure without alteration or place it on the Nov. 8 ballot for a vote.

Council members agreed in the people’s right to put the measure on the ballot, but disagreed with the way the measure was broadly written.

“I’m a believer in the right of the public to put measures on the ballot,” Councilman Dwight Worden said. “The people’s right of initiative is not a right that government gave them. It’s a right the people kept when they created government and the courts have consistently said it’s fundamental and it’s important.”

As an attorney, however, Worden said the way the measure was crafted could lead to conflict, including legal challenge. He, in fact, has written more than a dozen initiatives around the state.

“What we have to deal with here is the actual wording of this measure,” he said. “If it said what Mr. Wiesel articulated, that the people just want to have a say, it would be fairly straight-forward. But our attorneys have gone through what the draft actually says and there are a lot of problems in it.

“I think that those problems will surface at some point in time,” he added. “In my judgment, I could be wrong, major portions of this initiative will be invalidated, perhaps the whole thing. But now is not the time to do that.”

In a legal analysis of the initiative called “Voter Approval Requirement for Certain Development Projects,” Assistant City Attorney Barry Schultz found multiple conflicts with state law.

According to the report, the initiative potentially conflicts with the council’s administrative authority and single subject rule. The report states that the initiative also appears to be inconsistent with planning and zoning documents, including the community plan, housing element, zoning code, Measure B — a similar voter-approved law in place that governs large developments in the downtown area — and the local coastal program. Finally, there could be fiscal impacts associated with implementation of the initiative if passed, according to the report.

Watermark includes seven affordable units that will help Del Mar meet the state-approved requirements of its housing element. Schultz said the city is currently 22 units short of meeting the requirements.

“When it (housing element) was certified, the major strategy that the state looked at was looking at the rezone to the Watermark site,” Schultz said.

“The initiative specifically targets each of your implementation strategies in the housing element and requires that there by voter approval for those rezonings,” he continued. “What that does is it impedes your ability to bring your housing element into compliance with what you said you would do, and it creates an additional burden for affordable housing in the city of Del Mar.”

Wiesel said Schultz’s remarks insinuated that people would oppose affordable housing if the public were to vote on development projects.

“Talk about speculation,” Wiesel said. “If laws were built on speculation, when would reality ever come to play? Speculation is irrelevant. It’s out the window and it should not be used as a guideline.

“I believe, in this great town of Del Mar, there are tons of people that are pro affordable housing, but done in the right environment, done in the right project, done where you can still maintain sensitivities and qualities that are iconic and cherished by the town of Del Mar and its citizens.”

Over an hour and a half, the council considered and discussed three agenda items relating to the initiative. Councilman Al Corti recused himself because he has property adjacent to the project area.

First the council accepted a staff report regarding the initiative. Then the council accepted the city clerk’s certificate of sufficiency and voted 4-0 to place the measure on the ballot.

Deputy Mayor Terry Sinnott said he was “sad” that the initiative came forward because it was “poorly done.”

“It’s a shame that they did not participate or allow the normal process that this city has to air all the problems that a proposed project might have and allow the project to be scrutinized by the community in a normal process,” Sinnott said. “They came forward with this initiative evidentially distrusting those processes and distrusting how those processes would have eventually come out.

“It doesn’t do specifically what I think the signatures of the initiative wanted to do,” he added. “I think it does things that’s going to jeopardize a lot of what the city’s trying to do in the area of affordable housing, get us in conflict with state law, cost us a lot of money.”

Mayor Sherryl Parks agreed that the people have a right to vote and to express their views, but at the same time, she asked the community to consider the city’s obligation to provide affordable housing.

“It’s not going to get any easier for us,” she said. “It’s going to get harder.”

The council also briefly considered crafting a competing alternative measure for the ballot.

Worden offered to help draft an alternate measure that would have allowed people to vote just on the Watermark project. Among a variety of reasons, including a looming deadline and a crowded ballot, the remaining members of the council said they did not want to move forward with the option.

“Even if we get a CEQA exemption it’s going to be a big rush,” Mosier said. “Also, we as a council are limited in how much we can advocate for this, so I think we would be at a competitive disadvantage with the public initiative where there are no such restrictions.”

The deadline to submit a ballot measure to the Registrar of Voters is Aug. 12. If the council would have moved forward with a competing alternative measure, it would have had to gone through the environmental review process. The council would have also had to make its decision at either the July 18 or Aug. 1 council meeting.

“It’s probably not a smart thing to do,” Mosier said.

“The timeframe is too tight,” Sinnott agreed. “I would much rather have this initiative that’s going to the ballot to be standing on its own merits.”