Del Mar officials embark on revitalization educational efforts amid accusations of unlawful advocacy


By Claire Harlin

The Del Mar City Council on Sept. 10 gave final approval of its downtown revitalization plan, which puts the measure on the Nov. 6 ballot as Proposition J, and now the plan of action is educating the public on the 250-page document. But some residents have scrutinized the ethics of an educational program that’s in the works, accusing officials of crossing the advocacy line and serving as lobbyists rather than informants.

The educational program consists of several components, such as conducting question-and-answer sessions and posting summary sheets explaining each chapter of the Village Specific Plan (VSP) on the city’s website. But what’s raised concern is the city’s intent to mail the VSP’s executive summary to all residents and business owners in Del Mar, in the form of an educational pamphlet. The council advised city staff to present an example of the mailer at the Sept. 24 council meeting, at which point direction or approval will be given.

Del Mar resident Brooke Eisenberg-Pike called the executive summary an “advocacy report.”

“Once [Proposition J] is placed on the ballot, neither staff nor council can lobby it using their time and our money preparing these educational documents,” said Eisenberg-Pike, a former Del Mar council member.

She said the VSP summaries city staff plan to post prominently on the website seem objective, but they are heavily biased. She said an example of this bias is the city’s failure to include changes asked for by the public but not granted in a document summarizing changes made to the final VSP since the first draft was written.

She said it’s “shocking and shameful” to put city staff on the front lines of the council’s own campaign lobbying for Prop J.

In response to concerns brought forth by residents, the council asked City Attorney Leslie Devaney to clarify the difference between a fair educational program and unlawful lobbying.

When a city communicates with the public regarding a pending ballot measure, she said, there’s always the risk that a court could find that communication to be improper. Regarding Del Mar’s educational efforts, an established precedent sets the stage — in the 2009 case, Vargas v. City of Salinas, the court decided a public agency can distribute any materials it wishes as long as they don’t advocate a particular position.

She said a court could interpret a “ramping up” of outreach as advocacy, however, in the case of Del Mar, there are no new methods of outreach being proposed that haven’t been previously used in other stages of the VSP process. For example, the city has already sent out several other informational mailers.

“It’s Del Mar’s way of doing things to have lot of outreach with the citizenry,” Devaney said. “The city has an obligation to get the information out, as long as the information is accurate and not persuasive.”

Council members agreed that the VSP is a complex plan that calls for education.

“We have an obligation to set forth the facts and let people know what the plan is and what people are voting on,” said Councilman Don Mosier.

Councilman Marc Filanc agreed, but said the city also has an obligation concerning how it is perceived by the public.

“We’re in a season where we are getting hundreds of advocacy mailers,” he said. “This is just one more mailer and by sending it out, it looks as though we are advocating.”

Mayor Carl Hilliard said the city must follow through with its educational program at the behest of the California Government Code, which states governments must provide “fair and impartial presentation of the relevant facts to aid the electorate in reaching an informed judgement.”

He said he believes residents’ recent accusations are rooted in their opposition to the plan as a whole.

“Let the people who complain, who would complain anyway because they are opposed, complain away,” Hilliard said. “We need to stand our ground.”

From the original draft of the Village Specific Plan set forth on March 19, the city made substantial changes, based on public input, to the current plan that is up for vote on Nov. 6:

• changed development cap from a total of 600,000 320,000 square feet

• parking decreased, from 2,400 total stalls to 1,927 stalls, to coincide with the overall development cap decrease

• public finance allocation, estimated at $4 to 5 million decreased by $500,000

• decreased number of multi-family residential units from 140 to 110

• went from no restrictions on outdoor dining to requiring an enclosure for outdoor dining and a Condidtional Use Permit for any second level outdoor dining

• reduced number of roundabouts from four to three, located at 9th, 11th and 13th Streets

• Moved the building of a parking structure on City Hall property up the priority list

• implemented thresholds for development capacity review (city must revisit at 70,000 square feet or 10 years, and again at 75,000 square feet or 20 years)

• heights limit decreased from 30 feet to 26 feet on both sides of Camino Del Mar

• implemented 26-foot height restriction on homes within 50 feet of commercial area

• placed threshold for height review (when 50 percent of the block reaches 26 feet or 10-year intervals)