By Mike Feinstein. Inside/Outside. October 17, 2016
In California, the right to initiative, referendum and recall is a pro-democracy tool considered sacrosanct by many.
Ever since October 10, 1911 – when California voters passed Proposition 7 (the California Initiative and Referendum Proposition) — Californians have had the right to write their own laws, and have those laws placed on the ballot for a public vote through the initiative process.
But unlike initiatives placed on the ballot by the state legislature – or on the local level by city or county governments – initiatives drafted by the people do not undergo upfront public review that includes public input and legal staff review. As a result, many such ballot measures have unintended consequences — and/or end up in the courts — as a result of drafting errors that could have been addressed early on, if there were more eyes on the process.
Public review before gathering signatures
Recognizing this, in 2011 State Senator Darryl Steinberg (D-Sacramento) successfully authored SB1253, (a) requiring the Attorney General to initiate a 30 day public review process (upon the receipt of a request from the proponents of a proposed initiative measure for a circulating ballot measure title and summary); and (b) permitting proponents of the proposed initiative measure, during the public review period, to submit amendments reasonably germane to the theme, purpose, or subject of the measure as originally proposed.
In plain English, this means that proponents of a initiative ballot measure — and the public at-large — can benefit from wider public review, by proponents having the opportunity to amend their measure before hitting the streets to gather petition signatures, without having to pay new fees and resubmitting the measure.
State law does not provide for a similar pre-review and amend process for cities, nor has Santa Monica as a charter city chosen to add one. The debate over local Measure LV this November is suffering as a result.
Charter City flexibility
Measure LV would place practically every development over two stories in the city on the ballot for a public vote. Because of this, debate has arisen over whether LV would require a public vote before property owners could rebuild — in the case of an earthquake or other major natural disaster — to their pre-existing building height and envelope.
There are state laws that address such rebuilds for California cities. But under the home rule provisions of California’s state constitution, Santa Monica as a charter city has more flexibility than the state’s general law cities, and thereby can enact legislation different from that adopted by the state legislature. Because of this, previous Santa Monica voter-sponsored initiatives that would limit local development have been very explicit about what kind of exceptions would apply.
For example, in an effort to halt the proliferation of luxury hotels along Santa Monica’s beachfront, in November 1990 Santa Monica voters approved Proposition S, which established a Beach Overlay District prohibiting hotel, motel and certain restaurant developments in the district. To ensure there would be no ambiguity or conflict with existing law, the authors of Proposition S also defined everything that would be acceptable, even down to specifying what kind of recreational uses would still be permitted.
Quake of a mistake
Unlike with Proposition S, the authors of Measure LV did not include this level of specificity. This has unnecessarily created a legal grey zone with negative consequences.
Existing state and local law generally allows property owners to rebuild to that building’s previous height and envelope – even if previous height and massing exceeds current standards. An example was the rebuilding of the eight story Sea Castle apartments, (south of the Santa Monica Pier at 1725 Ocean Front Walk), made uninhabitable by the January 1994 Northridge Earthquake. Without this option, the Sea Castle – which was built in the 1920s, long before current low-rise beachfront height limits – could have only been re-built to three stories.
Today going forward under Measure LV, the height limit for all future development in the city would be two stories, unless a public vote would allow it to go higher. How would this requirement interact with rebuilding after an earthquake?
Santa Monica City Staff estimates that there 1,700 structures could come under such requirement, of which 1,300 are residential uses. What happens under LV when a four-story apartment building is destroyed by an earthquake? Do the property owners get to rebuild at four stories — or only two, unless they go to the ballot? Because the authors of Measure LV failed to exempt such rebuilds, the answer would likely have to be settled in the courts. Why?
Santa Monica’s charter city status means the LV voter approval requirement could take precedence in such cases. Additionally, state law allows a city to prohibit the reconstruction of multifamily residential buildings, if the city makes certain determinations that it would not be good for the community. Measure LV could certainly be argued to be leaving such a determination to voter approval, given its standard that any development over two stories is considered exceptional.
If Santa Monica voters pass Measure LV, it will be the City Attorney’s responsibility to defend it. Since LV did not explicitly exempt rebuilds necessitated by natural disasters when it could have, why should the City Attorney be expected to do otherwise?
Now, what do you do if you are the property owners, faced with the cost and delay of either going to the ballot, or a court fight over whether you need to? Will you try to rebuild to four stories of apartments? Or will you build two stories of luxury condos, displacing residents and further gentrifying the city? If you are a mom and pop operation, will you just sell out to a big corporation who has the resources to fight it out?\
More transparency in drafting initiatives
After the January 1994 Northridge earthquake, thousands of Santa Monicans were displaced, and many businesses were in a state of disrepair. The City Council passed an emergency ordinance facilitating the rebuilding of buildings damaged or destroyed by the earthquake, especially the homes of Santa Monica residents living in multifamily residential buildings.
If Santa Monica is hit by another major earthquake, LV could make an already difficult situation worse, by interfering with the City’s ability to act decisively again to heal the community.
This didn’t have to happen. By unfortunate choice, Measure LV was primarily written out of public view, by a small number of people. Then it was promoted (short-hand) as a measure about traffic and development, when it is actually about radically changing the City’s approvals process (and the multiple unintended consequences that come with it.)
But what was not publicized while residents were being asked to sign LV petitions, was this less sexy but extremely important question about earthquake recovery. It’s time for the City Council to ask for City Staff to bring back options for a local version of SB1253, to allow for a mandatory local 30-day period of public review and potential amendment of local initiatives, before they are submitted to residents for signatures to place them on the ballot.
LV’s authors should be held responsible for not seeking more wide community input, for the lack of transparency in drafting their measure, and for unnecessarily putting us in this position of potential legal dispute and multiple unintended consequences. But as a community, we should not allow this to be done to us again.
Four part series on Measure LV:
Next Logical Step after LV is RCV, November 21, 2016
LV’s failing to plan is planning to fail, November 1, 2016
Initiative Reform and Measure LV Drafting Errors, October 17, 2016
Why I’m Voting No on LV , October 10, 2016
Michael Feinstein is a former Santa Monica Mayor (2000-2002) and City Councilmember (1996-2004) . He can be reached via Twitter @mikefeinstein
‘Inside/Outside‘ is a periodic column about civic affairs Feinstein writes for the Daily Press, that takes advantage of his experience inside and outside of government.