Preserving the San Diego Commons: Public Land, Policy and Process

Who decides and who gets to participate in decisions to sell City properties?

(Photo: sandiegotrailtramps.com)

By Jay Powell

The previous article in the San Diego Commons at the Crossroads series keyed in on the Mayor’s State of the City promise to break ground on “50 new or upgraded parks during the next five years” counterpoised against examples of designated open space and other city-owned lands that are in jeopardy of being sold by the City as “surplus properties”.

The proposal to sell one of the now controversial properties labeled “Truax House” adjacent to the Maple Canyon Open Space system has been continued to the February 10 Smart Growth &Land Use (SG&LU) City Council Committee along with some additional properties, not all as yet specified.

And therein lies one serious problem. If you are glued to the City Council website each and every working day of every week you might find out about meeting agenda items related to property sales when they are posted as actions for sale or authorization for sale.

Is that how the process is supposed to work?

“When all else fails, read the instructions”. In the case of the workings of City Government, the instructions are supposed to be distilled into “Council Policies”. They are not just policies for the City Council but for the entire City. By Charter amendment passed by the electorate, the City Council makes policy, the Mayor and City Attorney and their respective staff carry it out.

The last plan presented to the City Council was for Fiscal Year 2010—6 years ago, meaning there is no current comprehensive information before the Council to evaluate any proposals for sale.

Council Policy 700-10 extensively revised and adopted December 18, 2012, governs “The Disposition of City–owned Real Property”. The following portions of the policy and editorials in italics are all “emphasis added”.

The Policy 700-10 requires the Real Estate Asset Department (READ) to “prepare and present to the City Council a comprehensive Portfolio Management Plan on an annual basis, with periodic reviews and as needed updates at City Council Committee.”

The Plan is to include a review of the inventory of City-owned properties, an operating plan for corporate property and “a disposition plan for surplus property, market research to support anticipated transactions and a request for authority to act within defined parameters… “.

The last plan presented to the City Council was for Fiscal Year 2010—6 years ago, meaning there is no current comprehensive information before the Council to evaluate any proposals for sale.

The policy charges the Mayor’s staff to review the inventory and “ to determine which properties are no longer needed for public facilities or to support the elements of the General Plan (such as the open space element) and whose disposition will provide a greater public benefit.”

The policy further outlines the governmental clearance process and regarding the list of properties for sale, governmental agencies are to be regularly contacted as the surplus list is updated, City departments (which are listed in the policy) are to be individually contacted as the surplus list is updated., and Council offices are given a preliminary review to allow council staff to comment on foreseeable uses for the property.

In some cases it appears that Council staffs have been contacted regarding the properties on the current PowerPoint list. Their comments, if any, are not a part of the READ files.

The contact of City departments is done by a collective addressee email—not “individually”. There is a list of email addressees for “government agencies” but apparently not a master list of what agencies are notified.

Finally, the policy outlines the Approval Process: The properties that have been identified by the Mayor as candidates for sale “will be presented to Council for approval to be sold.”. If a ground lease is feasible, an economic analysis of the benefits of lease vs. sale will be conducted.

Finally, If Council determines that the property may be sold, it shall authorize the Mayor to sell the property for a price equal or greater than a current appraisal.

That is the policy of the City and upon which those of us in the City “body politic” might reasonably expect to rely. The City government, however, seems to be operating under a different set of rules. And I have been reminded that the Council can waive their own policies with 6 votes – though in this case, so far, that has not been suggested.

The good news is that READ appears to now be seeking City Council authorization to market the properties, where last year they indicated their interpretation of the policy and their intent was not to seek City Council authorization to market, but to return to the City Council when they had a signed sales contract in hand.

The not so good news is they still maintain that Council approval is not required to simply market properties for sale – “due to favorable market conditions, a few properties may be marketed and then, when a buyer has been selected, they will seek (Council) approval to sell those properties.”

And they re-emphasize that there is no requirement for separate noticing to community planning groups, instead encouraging the groups to “check the City website for City Council agendas.” While this may be a correct statement of the current policy’s non-mention of noticing requirements, it is surely not the optimal way to “cultivate civic engagement and participation”, which has been noted as one of the objectives of the officially designated and locally elected Community Planning Groups to to help achieve the City’s Strategic Plan goal of “livable neighborhoods.”

There are (including the proposal to sell properties moved to the February 10 Smart Growth and Land Use (“SG&LU”) Committee meeting) 27 properties comprising over 111 acres and 5 facilities/buildings waiting in the wings in various stages of real estate disposal. They are listed at the end of the second installment of this series.

But the process they have outlined still allows for properties to come forward piecemeal at a Committee hearing some time in the indeterminate future. Or they might not appear until there is a buyer signed sales contract…

None of them have been authorized in a noticed public hearing by the City Council as properties that the Mayor can offer for sale. “The Actions for the Committee” on June 10 last year relates that Item 4 was an “Informational item only. No action taken” on “14 surplus properties owned by City of San Diego”—not the 28 listed in the PowerPoint.

One property on the PowerPoint – a remnant next to a recreation area in La Jolla, already made it straight on through to the City Council for their approval to sell to a condo development on a consent agenda months ago.

Two properties adjacent to the two Mid City CenterLine Transit Stations have been placed on “HOLD” per request of Councilmember Marti Emerald. And the designated open space parcel in Olivia Canyon has been put “on hold for the foreseeable future.”

The PowerPoint can be accessed through the City website. It provides some background on the “eligibility” criteria and factors in staff “determining whether to sell.”

But the process they have outlined still allows for properties to come forward piecemeal at a Committee hearing some time in the indeterminate future. Or they might not appear until there is a buyer signed sales contract brought before the City Council on any Monday or Tuesday docket.

Where does this leave the public – “the inhabitants” that own or use the land which we refer to as the San Diego commons?

It leaves the public without even the reassurance that the adopted City policy will be followed and it cuts out the benefit that could be afforded the City Council, Mayor and staff of having informed and meaningful public input from stakeholders and the officially recognized community planning group representatives.

There are other important policies, ordinances and even Charter provisions that offer guidance and requirements for the conduct of business related to acquiring and preserving open space and park lands.

Designated is not dedicated— and why that matters

This kind of figurative and literal erosion of open space lands in the city tempers the enthusiasm for promises of a new grand parks expansion plan.

The entire of issue of “designated” versus “dedicated” open space and park lands causes plenty of confusion. The constituent Community Plans as part of the City General Plan have open space areas designated on land use maps in light green for open space.

Those areas, even if owned by the City are not provided the protection of the City Charter of dedicated park lands (usually shown in dark green) which requires a 2/3 vote of the electorate to convert it to other uses.

Yet, there are indications of a less than vigorous enforcement of open space lands protections at City Hall. In one example, a City Hall source has noted that portions of open space lands in the Tecolote Park system were conveyed in a City Council closed session vote to adjacent property owners whose yards had years earlier encroached onto those city–owned and previously designated open space lands. This was after these parcels had been included in a December 2012 omnibus dedication of open space and parklands action by the City Council.

This kind of figurative and literal erosion of open space lands in the city tempers the enthusiasm for promises of a new grand parks expansion plan.

To complicate the matter further, there are privately owned lands that for various regulatory reasons are required to dedicate lands by deed restriction for open space. But most often those lands are not a part of what we have referred to as “the commons”, because they are not accessible to the public (ie, “for use of the inhabitants of a place”).

An example of this includes areas in what is referred to in the General Plan as “Prop A Lands”. These lands were restricted by a 1985 citizens’ initiative effort from urban levels of development without direct voter approval. Subsequent interpretations allowed for clustering of homes computed on preexisting agricultural densities with a dedication of remaining lands as open space. But the quality and accessibility and enforcement of those private land commitments is mixed.

The Environmental Growth Fund— You contribute to it every month in your utility bill

Again and again the issue of maintenance costs come up in relation to maintaining the Commons in San Diego. Most recently at the November and December hearings of the Environment Committee and Charter Review Committee this issue was discussed in context of proposals to amend the Charter to remove the language that set forth a commitment of funds obtained through utility franchise fees to purchase park lands. Did you know that part of your utility bill payments have helped acquire open space and parklands?

In 1972 a Charter ballot measure set up the “Environmental Growth Fund” (EGF) and committed 25% of the utility franchise fees collected to that fund with two-thirds of the fund intended for open space acquisition and preservation. In 1978 the City formed the San Diego Open Space Park Facilities District to acquire open space to implement the Open Space Element of the General Plan.

Prior to the adoption of the 1979 General Plan it had been proposed that the City include a Growth Management Plan with five tiers of development from no development on open space and canyon lands to redevelopment of older areas. Other areas of the City were to be included in one of three phased development designations to provide for new growth in a cost efficient manner.

The Mayor and City Council at that time decided to avoid potential legal challenges on implementing the open space tier and instead set forth and passed the Open Space Bond measure relying on a two-thirds portion of the EGF revenues. This fund was used for over three decades to acquire thousands of acres of open space and park lands.

But in 2009 with the last payment made on the last open space bond issuance, the funds were redirected into other capital improvement and maintenance uses associated with parks. This happened to coincide with the national economic downturn and associated real estate bubble bursting.

The City Council relied on a provision in the implementing ordinance that allowed them to divert these funds from open space acquisition, if it is determined “that anticipated revenues in any fiscal year will be insufficient to maintain existing City services necessary for preserving and enhancing the environment. “ The Mayor and City Council have continued to rely on this provision for the past several year’s budgets to free up General Fund monies for other purposes.

SDG& E Bill showing franchise fees (click for larger image)

Somewhat perversely, because the franchise fee is based on a percentage of utility bill income and the California PUC continues to grant SDGE and SoCal Gas increases in rates, the EGF is projected to go up from $13 Million this year to $16.2 Million in FY 2016. The fund indeed is “growing”, but the amount of protected open space in San Diego is not.

During the Environment Committee discussion, Councilmember Gloria noted that even if the EGF was re-allocated to acquire open space, because of land prices and availability of undeveloped land, the City probably could not afford to purchase lands for many parts of his Council District Three. Ironically, some constituents in the Uptown Community believe that the vacant lot portion of the already City-owned “Truax House” parcel proposed for sale could provide access to the Maple Canyon open space system in District Three.

After considerable discussion about the potential need for storm drain repairs and maintenance with the impending arrival of El Niño storms (e.g., what happened in the recent deluge due to one storm drain break on a San Carlos neighborhood hillside demonstrated that reality) and public testimony regarding the intent of the Charter to fund open space acquisition, it was determined not to amend this section.

The matter of allocation of the funds in the City implementing ordinances and policies was referred back to the Environment Committee. This will take on new relevance with the Mayor’s promised blueprint for new and upgraded parks.

To be sure, the promise that a master park plan will “give us a blueprint for building parks in every community” is laudable, and the “chicken in every pot” pronouncements might get us all feeling good, but the budget allocation is reality.

One interesting corollary to the announced grand parks vision is that the City Council was being asked this week to approve a “streamlining” of the public review process to shorten the periods for review so it is not clear how the local stakeholders in each community will be involved in the Mayors initiative.

An opportunity to engage communities in innovative uses of our properties

We will see what happens at the February 10 Smart Growth and Land Use Committee meeting. READ staff reports that they will actually be bringing more properties forward for authorization to sell.

Perhaps the issue of policy and process will be brought forward by Councilmembers.

Perhaps a Councilmember will suggest that Community Planning groups should be a part of the review of properties recommended for sale as excess to the needs of the City.

Perhaps a Councilmember will ask to see the comprehensive Portfolio Management Plan that is six years overdue before they consider approving any property sales proposals.

Or perhaps the City Council will be persuaded to waive the policy and proceed with the proposed sales. This would be a real shame when there are so many opportunities emerging to realize the General Plan and constituent community plan visions. It would further undermine public confidence in the City’s commitment to its adopted “Strategic Plan “ goals to encourage public engagement and participation.

And the sale of public lands without a comprehensive inventory and assessment and without vigorous community engagement may actually impede the realization of the General Plan objectives. And it will run counter to the recently approved Climate Action Plan (CAP) that is touted as nationally significant landmark legislation which mitigates General Plan-enabled development through enforceable measures to reach state mandated reductions in Greenhouse Gas emissions.

As just one example, the CAP includes a section to promote sustainable local food production. Interestingly, the SG&LU Committee reviewed just this week a proposal to implement State authorized “Urban Agricultural Incentive Zones ( UAIZ)”. Already there are a number of innovative uses of City-owned open space lands that are homes for community farms and gardens.

If we follow the policy for disposition of City-owned real estate and expand it to include review by community planning groups and encourage participation we could have a real public dialogue in our communities about how best to achieve the maximum public benefit return on our investment that answers questions such as:

– What public lands do we have available for public purposes that are currently not being put to the use for which they were acquired and how could those lands be better used?

– Who else, other than the private for profit or for private gain sector could we convey the lands by sale or lease to for the public benefit?

– What resources do we have or need to obtain or allocate to acquire new lands or maintain, restore, enhance those we have to ensure their use for future generations as a legacy for the common good?

If you have questions or concerns about the properties proposed for sale, or the process or the policy, or the implementation of the Charter’s Environmental Growth Fund or the budget for the parks master plan, please contact your Councilmember.

We’d love to hear what they tell you and what you suggest in the SDFP comments section of this article.

And in the meantime, our admonition from last summer still stands: “best keep an eye out the backdoor.”

One final note. While I do not necessarily agree with READ staff on the interpretation of the policy, they have been forthright about their responses to my inquiries and requests for information and for better or worse carrying out their assigned duties as real estate agents directed by the Mayor to find and dispose of City-owned properties.

This article is part of a series of San Diego Commons originally published at our associated online daily, San Diego Free Press here.

Post updated 1/21/16 to update links and for light editing.