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Right On Cue, Ballot Measure Confusion Grows While Construction Slows

Wouldn't you know it? Right when the real estate market slows down, the land use initiative business is picking up.

And, as is often the case, the initiatives rather than clarifying things are making things more confusing. Although localized in nature, the confusion will continue all the way through the emerging real estate bust and on to the beginning of the next boom.

Land use ballot initiatives have always been a "lagging indicator" of the construction economy. That is, ballot activity becomes most intense at the end of a real estate boom, when entitlement activity is still frenetic and construction activity is beginning to slow down.

That's because voters are most fed up about development after a long boom and are usually moved to action right when the bust begins. And when that happens, they often decide to take matters into their own hands. Sometimes this makes sense, but often it doesn't -- as, for example, Escondido voters discovered after approving an initiative requiring voter approval of most general plan designation changes. They wound up having to vote in the next election on eight minor changes and turned them all down (see CP&DR Insight, October 2000)

Ballot initiatives often make the most sense when they craft or reinforce big-picture policies or when they are used to pressure elected officials on a particular issue that's important to a lot of voters. Even then, however, citizen groups get so wrapped up in their initiative that they're often unresponsive to compromise.

Three different local situations during recent months in Monterey County, Redondo Beach, and Ventura County illustrate both the confusion, the frustration, and the hope that land use ballot measures in California have come to represent.

In Monterey County, no fewer than four measures were on the ballot in June including three involving different versions of a new general plan.

The voters were presented with two general plan choices the board's plan and the environmentalists' plan. Furthermore, the board's plan was presented as a positive and as a negative in two different measures. In the end, all measures went down, which apparently means the county defaults to the previous general plan that dates back to the early 1980s. Back to square one.

By voting no, residents of Monterey County suggest they may not have realized what was really going on. It's also possible the voters really want the Board of Supervisors to make some tough choices. You'll excuse the leaders of Monterey County if they are not sure what the heck their residents want.

Meanwhile, in Redondo Beach, the latest push for an initiative seemed to hold the potential to force the city into a compromise. But now a compromise appears unlikely.

Like many beach towns in the South Bay of Los Angeles, Redondo has a long history of ballot-box zoning. Most recently, voters in 2005 were asked to decide the fate of a 65-acre parcel around the long-established AEP power plant on the beach. Asked to choose between a development project, called the Heart of the City plan, and a park, Redondo voters understandably chose a park (see CP&DR Election News, April 2005; Local Watch, January 2002). With no way to pay for such a park, however, the city started talking about development plans again, and this led to a backlash.

A citizen group called Building a Better Redondo emerged with a ballot initiative that would require most major changes in the general plan to go to the voters. In particular, the initiative targeted any general plan amendment that converted non-residential land to residential or mixed-use with a density of 8.8 units per acre or more. This was clearly targeted at the Heart of the City property, where residential development is required to make any project work financially.

Earlier this spring, the initiative fell 355 signatures short of qualifying for a ballot. Since then, the citizen group and Mayor Mike Gin have been involved in a set of moves that are part minuet, part power politics. They met once and since then have been negotiating over when, whether, and how to meet again, and there has been more than a little finger-pointing. The citizen group has filed a new initiative and plans to start gathering signatures again; meanwhile, Gin has indicated he might support a 45-day moratorium on rezonings while they negotiate.

Whatever the merits of the case on either side, the Redondo citizen group has played its hand deftly, and in a way that other citizen groups should take note of. The group has succeeded in putting a lot of pressure on the elected officials and gives every indication of moving forward with the initiative to keep the pressure on. Sometimes, the nuclear threat is far more powerful than actually dropping the bomb.

Meanwhile, in Ventura County in many ways "ground-zero" for land use initiatives over the last decade both developers and institutional landowners continue to search for ways around the urban growth boundaries that voters established a few years ago.

History was made in May when Santa Paula became the first city to approve an expansion of the growth boundary for a mostly residential project. Local news reporters immediately jumped on the idea that this could be a trend other residential projects have been defeated in Santa Paula and elsewhere but the truth is the Santa Paula situation was unusual. Santa Paula is a poor city, and the proposed development (which has been on the ballot before) would contain about 500 very expensive hillside homes that could dramatically change the city's financial situation and its reputation. Hillside property owners in both Ventura and Moorpark still have designs on development in areas that require a vote, but those communities are more affluent and have historically been less receptive to even high-end development outside the boundaries.

And at least one church appears ready to use its religious status to try to end-run the vote requirement. The 4,000-member Cornerstone Community Church has plans for a $40 million complex that includes a Bible college and a 5,000-seat auditorium on 140 acres of land in unincorporated county territory just outside Simi Valley and near the Reagan Library. The church plans to argue that it is exempt from the vote requirement under the federal Religious Land Use and Institutionalized Persons Act (RLUIPA), which exempts churches from land use regulations that "substantially burden" the exercise of religion unless a compelling public purpose is at work.

Two previous growth boundary elections in Ventura have involved religious organizations one involving a Catholic convalescent home outside Ojai and the other an Assembly of God church in Ventura. In both cases, the religious organizations organized a campaign and won. But it's hard to say whether RLUIPA would override the vote requirement in this case. After all, in strictly legal terms, all that has happened in Ventura County is that the voters have exercised their right under the California Constitution to substitute themselves for their elected officials in considering legislation that would allow development on land designated for open space. Would the vote requirement alone create a substantial burden? Should a federal statute trump the state constitution?

These three situations are all examples of different approaches we often see in the field of land use initiatives the train wreck, the negotiation, and the end-run. In all likelihood, ballot activity will taper off during the next couple of years, as so often happens after a real estate slow down settles in. Perhaps the downturn will give elected officials, initiative drafters and their lawyers the opportunity to use these situations to make land use policies clearer rather than more complicated.

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Josh Stephens on The Urban Mystique at SPUR: January 19
On Tuesday, January 19, please join CP&DR Contributing Editor Josh Stephens and our friends at SPUR for a conversation about his book The Urban Mystique and the ineffable complexities that make all cities wondrous, maddening, and fascinating.
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