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SD Base Redevelopment Avoids Voter-Approved Height Restriction

A voter-approved height limitation initiative does not apply to redeveloped land that was part of a military base, the Fourth District Court of Appeal has ruled. The base reuse authority — the City of San Diego in this case — can apply only those portions of local zoning regulations that are consistent with the federally approved base reuse plan, the court ruled. The approved reuse plan for surplus land at a naval training center in San Diego allowed for structures up to 100 feet tall. Proposition D from 1972 capped development in coastal areas outside of downtown at 30 feet. So the city, acting as the base reuse authority, properly rejected application of Proposition D to the surplus base land, the court held. The city's planning for reuse of the 429-acre site began in 1993 with creation of a 26-member committee. In 1997, the Department of Housing and Urban Development (HUD) approved a draft plan. In October 1998, the city adopted the final reuse plan and certified a joint environmental impact statement and environmental impact report. The plan called for single-family residences up to 36 feet tall, and a hotel of up to 100 feet in height. In March 1999, the Defense Department issued a record of decision approving the reuse plan. The city amended its zoning ordinances, then submitted the reuse plan to the Coastal Commission as an amendment to the city's local coastal plan (LCP). The Coastal Commission conditioned its approval on height limits of 36 feet in residential areas and 45 feet in the office and research zone, with the exception of one 58-foot-tall structure. The city adopted the proposed modifications and the Coastal Commission certified the LCP amendment in September 2001. The following month, a group called Save Our NTC sued, arguing that the base reuse plan violated Proposition D. San Diego County Superior Court Judge E. Mac Amos Jr. ruled for the city. A unanimous three-judge panel of the Fourth District, Division One, upheld the decision. No one contended that Proposition D applied to the military base when the federal government owned it. The issue was whether Proposition D became applicable to the surplus base property when the federal government transferred the land to the city. Save Our NTC contended the wording and intent of Proposition D indicated the initiative should apply. But the court ruled that under the Federal Base Closure Act and the state Government Code, Proposition D cannot apply. The federal law requires the designated redevelopment authority to prepare a reuse plan subject to approval by HUD and the Defense Department. Once the plan is approved, local plans and zoning must be updated to reflect the redevelopment plan. "[T]he determination of the appropriate use for base property is made pursuant to federal criteria and is not necessarily limited by existing local zoning ordinances," Justice James McIntyre wrote for the court. The state law, meanwhile, "requires the local base reuse authority to ‘fully honor all conditions, requirements and understandings with the federal government with respect to the use and disposal of that property,'" McIntyre wrote, citing Government Code § 67842, subd. (c). "[T]he federal government's transfer of the surplus NTC property to the city did not trigger the application of all existing zoning ordinances to the property, but instead only those that were consistent with the Reuse Plan approved by the Defense Department and HUD," McIntyre concluded. The court also rejected the argument that the failure to apply Proposition D to the site was an illegal repeal of a voter initiative. Proposition D did not apply to the property when passed by voters and did not become applicable upon transfer of the property, so no part of the initiative was overturned, the court ruled. The Case: Save Our NTC, Inc., v. City of San Diego, No. D039615, 03 C.D.O.S. 465, 2003 DJDAR 553. Filed January 14, 2003. The Lawyers: For Save Our NTC: Steven Haskins, Haskins & Associates, (619) 479-4351. For the city: John P. Mullen, deputy city attorney, (619) 533-5800.
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