Measure E Likely to Face Legal Challenge

by on November 6, 2020 · 12 comments

in Election, Ocean Beach, San Diego

Measure E – which just passed – will likely be challenged in court.

The measure, if allowed to stand, will eliminate the 30-foot height limit in the Midway District and open the way for massive redevelopment and high rise in the area. As of Thursday night, 57% voted yes and 43% no.

The group, Save Our Access, has filed a civil action against the city which seeks to block the measure from being implemented. The group, in a petition for writ of mandate, challenges the legality of Measure E in a significant claim that the City of San Diego failed to follow the law as required by the California Environmental Quality Act to study its environmental impact before placing the measure on the ballot.  Save Our Access vs. City of San Diego is filed with the central division of San Diego County’s Superior Court, and has been on hold pending election results.

Save Our Access founder John McNab said on Wednesday, the group, which led the campaign against Measure E, would likely proceed with the legal action. In an email to the San Diego Union-Tribune, McNab said, “The height limit is a significant change to the community plan and triggers the need for a new (environmental impact report).”

According to the U-T:

… barring a settlement, a cloud of uncertainty hangs over the Midway District and the city’s pending real estate deal with Brookfield Properties. … The case hinges on whether city planners properly considered the various impacts of taller buildings when they prepared the Midway-Pacific Highway Community Plan. The 30-year planning document, approved in 2018, allows for major land-use changes and a population boom of 23,660 people. However, the plan’s associated environmental analysis did not specifically study buildings over 30 feet. That leaves up for debate whether the report was able to anticipate Measure E’s impacts on environmental factors such as greenhouse gas emissions, traffic and air quality

“It’s complicated. It’s going to be a technical look at the sufficiency of the community plan document to cover the initiative impacts,” said Marco Gonzalez, an environment and land-use attorney with Coast Law Group. “The interesting thing that happens now is the court, to the extent that it agrees with the plaintiffs in the suit, will be required to potentially disenfranchise a bunch of voters. It benefits the city that (the suit) is post-election.”

The City Attorney’s Office has no comment on the pending litigation, said Communications Director Hilary Nemchik.

For now, the petition will not impact Measure E’s forward trajectory until a hearing is scheduled, although the court could grant a restraining order, said retired land-use attorney Cary Lowe. It typically takes three months to get a trial hearing, but timelines have been slowed by the pandemic, he added. And if appeals are later lodged, it could be a year or more before there’s a definitive ruling.

In the interim, the city is negotiating a high-profile land deal in the Midway District. Earlier this year, Brookfield Properties won a competitive bidding process to redo the 48 acres the city owns around Pechanga Arena. It has pitched an all-new sports arena, 5 acres of public parks, 2,100 housing units and 590,000 square feet of retail space. A proposed ground lease with the developer is expected to go before City Council in the first half of 2021, although the civil suit muddies potential deal terms and the prospect of a new arena, which cannot be rebuilt with a 30-foot height limit in place.

Councilwoman Jen Campbell – who was responsible for getting Measure E on the November ballot – made a joint statement along with Mayor Faulconer and Brookfield executive Zach Adams:

“The people of San Diego have removed one of the biggest barriers holding back the revitalization of the Midway District and in the process, took the very important first step towards the redevelopment of the sports arena site. This historic change will bring more jobs, more park space, more housing, and a world-class sports and entertainment district that will make San Diego proud. The city and (the Brookfield team) will continue to negotiate a final deal to bring before the next mayor and City Council that fully embraces voters’ support of Measure E.”

The thousands of people who voted against Measure E would disagree. But Campbell has solidified her reputation now within her District 2, particularly with residents of those neighborhoods that will be negatively impacted by its implementation.


{ 12 comments… read them below or add one }

Frances O'Neill Zimmerman November 6, 2020 at 4:22 pm

Councilmember Jen Campbell will have trouble “revitalizing” another term in office in two years when she is up for re-election. Engineering destruction of the 30-foot coastal height-limit, passed by a people’s initiative in 1972 to protect San Diegans’ access to our beaches, is a betrayal of public trust. According to a San Diego Reader story printed just days before the election, most of the money for promoting Proposition E came from the project’s Canadian developer Brookfield. And it was our own City Council that voted to put Proposition E on the ballot. With friends like this, the people of San Diego don’t need enemies.


Pete R November 7, 2020 at 3:41 pm

The latest numbers in the UT show San Diegans supported Measure E with over 77% of the vote. That’s a landslide. So your rhetoric about Measure E being a “betrayal” of the people is clearly inaccurate. The people have just spoken.


Frank Gormlie November 8, 2020 at 10:51 am

Hey Pete R – your old neighborhood of OB (and PL) voted against it. Just because a majority voted for it, does not mean it wasn’t a betrayal of the hard work in 1972 your fellow citizens did before you were even a off the bottle.


Paul Webb November 8, 2020 at 11:22 am

Yes, it was a landslide. But, I wonder how many people were swayed by the argument that it would allow us to get an NBA team. San Diego has lost three professional basketball teams while I have lived hear. I don’t think we will ever get another.

I also think that there is a better use of publicly owned property than more offices and shopping.


Tyler November 9, 2020 at 2:19 pm

I mean, we could go in circles on both sides being swayed by things. People on the Peninsula were likely swayed by the hyperbolic anti-measure E rhetoric too, likening the passing of the measure to a dystopian future where the coastline looks like Hong Kong or Miami Beach.


Charles Best November 7, 2020 at 6:42 pm

Francis & Company: Wikipedia has a lengthy bit of puffery on Brookfield Properties. the intro notes: “Brookfield Properties is a North American subsidiary of commercial real estate company Brookfield Property Partners, which itself is a subsidiary of alternative asset management company Brookfield Asset Management. … Blah, blah, blah, … Brookfield Properties operates corporate offices in New York City, Toronto, London, Sydney, and São Paulo. It is the second-largest shopping mall operator in the United States, after GGP Inc. (General Growth Properties) was acquired by Brookfield Property Partners and merged into Brookfield Properties in 2018. The full article is rather lengthy and kind of scary like a science fiction movie come to life. Along the lines of “The Monster That Ate Toronto”. Much more illustrative of this real estate behemoth, and a whole whole lot scarier, is the company’s website. Just google Brookfield Properties Canada
Zuccotti Park is a good example of Brookfield Style of Politics [i.e. Trumponian] This should ring some bells with local park lovers. Shades of Collier Park,
“Brookfield is the owner of Zuccotti Park, a publicly accessible park adjacent to one of its office buildings near Wall Street in the Manhattan borough of New York City, that in September 2011 became a site of protests by Occupy Wall Street. On October 11, 2011, Richard Clark, the company’s CEO, sent a letter to NYC Police Commissioner Raymond Kelly requesting to “clear the park” as its use by Occupy Wall Street “violates the law, violates the rules of the Park, deprives the community of its rights of quiet enjoyment to the Park, and creates health and public safety issues.” The request was later withdrawn. On November 15, 2011, at around 1:00 a.m., the NYPD went in and cleared the park citing alleged health and safety hazards caused by the protestors. Later that morning, Judge Lucy Billings issued a court order for the NYPD to allow the protesters back into the park. That injunction was subsequently lifted by the NY Supreme Court and the police were allowed to keep the park cleared of tents at the request of Brookfield Properties”. [Wiki] Happy Sunday!


Chris November 8, 2020 at 6:25 am

I voted against it and I’m no fan of Jen Campbell, but apparently more San Diegans agree with her than don’t. I think we have to come to grips with the fact that the majority of our own citizens disagree with us on this specific issue.


Frank Gormlie November 8, 2020 at 10:48 am

If one looks at the vote spread, OB and most of PL and other coastal neighborhoods voted against it.


Chris November 8, 2020 at 3:04 pm

I don’t doubt that. I voted against it also and I live in Hillcrest, but the majority of the rest of SD feel different.


Charlie Best November 6, 2020 at 6:16 pm

For what it’s worth John McNab, of Save Our Access was one of the principles behind Save Our NTC, which, purportedly, wanted to turn the Naval Training Center into a homeless shelter. When that fell through pouted. One would think that the affected communities could come up with a bit more traction,


Christopher Thomas November 8, 2020 at 3:06 pm

But we’ll see how these legal challenges pan out. Hopefully in our favor.


Deb Porter November 10, 2020 at 11:25 am

Recall Jen………. she doesn’t represent her district and has turned into another ambitious politico.


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