In Tentative Ruling, Judge Sides With ‘Save Our Access’: 2020 Ballot Measure E’s Removal of 30-Foot Height Limit in Midway Was Illegal

by on December 6, 2021 · 6 comments

in Ocean Beach, San Diego

Residents of the Midway District, as well as others in OB and Point Loma took a sigh of relief Friday upon the news that a San Diego judge made a tentative ruling against the 2020 ballot Measure E that eviscerated the 30-foot height limit in the Midway.

Superior Court Judge Katherine Bacal

Superior Court Judge Katherine Bacal agreed with petitioner Save Our Access in her tentative ruling that the city should be barred from implementing Measure E. Judge Bacal ruled that the City of San Diego improperly placed the measure on the November 2020 ballot because the city failed to study the environmental impacts of buildings taller than 30-feet, as required by the California Environmental Quality Act.

The city rebutted her tentative ruling in court Friday. Deputy City Attorney Benjamin Syz contended that the 2018 EIR sufficiently covered any of the environmental implications of Measure E, such as greenhouse gas emissions, traffic and air quality in the plan’s zoning changes, which allow for increased density. The San Diego Union-Tribune quoted Syz:

“We analyzed land use on a level that assumed full build-out (of the community plan update. Every subject area has been analyzed with the assumption that the height limit did not exist.”

The judge didn’t go for it. And, apparently, Judge Bacal did not express any change in her position but did say she’d take the city’s rebuttal under submission. She also said, “I should be issuing the ruling very shortly.”

This ruling is the latest bump in the road for the city in its drive to turn the Midway District into an entertainment and residential paradise.

As a reminder, Councilwoman Jen Campbell successfully convinced her colleagues to place “Measure E” on the November 2020 ballot. Measure E was an ordinance that changed the definition of the coastal zone in the city’s municipal code, as defined by the people-driven Proposition D in 1972, to exclude what’s known as the Midway-Pacific Highway Community Plan area. In effect and by design, if implemented, the 30-foot height limit in the area would be removed.

City-wide, voters approved Measure E; although voters in the Midway area did not. The vote seemed to have paved the road for buildings taller than 30 feet in the 1300 acre site, and especially for the 39-acre Sports Arena redevelopment land owned by the city.

Yet, Save Our Access, a group of environmentalists and social activists contended the city failed to study the environmental impacts of Measure E, as required by the California Environmental Quality Act. In August 2020, the group filed a petition for a writ of mandate. This court challenge has stalled the height change from going into effect.

So, at the heart of the case is whether city planners studied the environmental impacts of buildings higher than 30 feet when they prepared the Midway-Pacific Highway Community Plan Update. The Update was approved in 2018 and allowed for major land-use changes of thousands of new housing units and a population boom of 23,660 people. But, and this is key, the plan’s environmental analysis did not specifically study buildings over 30 feet.

Bacal focused on the potential visual impacts of Measure E in her tentative ruling:

“The program EIR’s use of the language ‘existing’ framework and that it would ‘blend with’ the ‘established’ height regulations show (planners) considered the existing limitations, and not the maximum structure heights mandated by the proposed base zones if the 30-foot limitations were removed.”

In essence, the city did not study the environmental impacts of taller buildings, and the judge sided with Save Our Access.

Bacal’s decision can be challenged on appeal.

In the meantime, the city’s drive to redevelop the area has reached both this bump and its unknowns, as well as the deadline for the end of the first phase of a second solicitation process in which at least five teams are expected to respond with plans for redeveloping the area with at least 25% of the housing stock affordable.

One of the unknowns is that, despite redevelopment applicants being made aware of the pending litigation, as the U-T surmised, “some of their conceptual proposals envision housing and commercial buildings, and even new arenas, that stretch well above 30 feet.”

Without much actual community involvement, the city and the midway area’s planning committee finalized the Plan Update. As the OB Rag predicted years ago, this Update poured the concrete for the road to redevelopment. Coincidentally, the city around that same time ended its leases with all the businesses in the Sports Arena area. This, plus the Update, set the stage for the redevelopment process to proceed. And recall, dear reader, no affordable housing was ever guaranteed in this process.

Then the State of California stepped in and reminded the city that before it could sell or lease any lands and properties, it had to, by law, offer the sites to affordable housing developers first. The state law requires all new housing from government-owned land has to include at least 25% affordable.

Midway community planners, in the meantime, are understandably upset. They pushed their Plan Update, saw it approved; witnessed with relish the redevelopment process move with the passage of Measure E and all the talk of turning the district into an entertainment and high-end housing mecca; some were already counting their potential earnings. Then the state stepped in; and now this ruling. Of course, community planners don’t talk about how the residents of the Midway voted against Measure E and they just cannot understand what groups like Save Our Access are up to.

The U-T quoted Dike Anyiwo, who is the vice chair of the community planning group:

“I’m shattered. Our community has been looking forward to today with hope and optimism around the sports arena site bids coming in, and this ruling has completely upended all of that. I cannot fathom what outcome the proponents of this lawsuit were seeking to achieve by undermining the very clear direction that 56.56 percent of voters set when Measure E was contested last November.”

Others are more thankful. Those who were critical of Jen Campbell’s manipulations and upset with how Mayor Faulconer rushed the Midway job (and how Mayor Gloria eagerly took up the baton) are optimistic themselves in that a more careful approach to building needed affordable housing is in the works.


{ 6 comments… read them below or add one }

Gravitas December 6, 2021 at 9:33 am

GOD BLESS THIS JUDGE……an honest woman and an intelligent one.
Enough already of the overstuffing and under-protecting existing neighborhoods from less than enlightened developers.


Mat Wahlstrom December 6, 2021 at 11:00 am

If her final ruling follows the tentative one, then it thankfully confirms what those of us opposed to Measure E as a matter of rule of law said: it was a fraud that deserved to fail. Because it was the council and not the public that put this on the ballot, it needed to meet the higher standard of a separate EIR.

Even Voice of San Diego admitted as much, in a rare rebuke: “City staff didn’t forget about the need for an EIR. They chose to avoid it and argue that the height limit removal was not a project that required an EIR. They lost.” (Of course, though, they laid the blame solely on Faulconer, ignoring Campbell and Gloria.)

But as is too often the case, to get the city to do the right thing required a lawsuit. If it weren’t for Save Our Access, corrupt electeds and their developer donors would have succeeded with their gambit at tremendous lasting cost to all of San Diego. We owe them a debt of gratitude.


Frank Gormlie December 6, 2021 at 11:29 am

I’ve updated this post with a number of links for historic context.


kh December 6, 2021 at 3:45 pm

Point of clairification: The “Coastal Zone” and the “Prop D 30-ft height limit zone” are not one in the same. There are portions of the Coastal Zone not subject to 30-ft limitations, and there are portions outside the Coastal Zone that are.


Pete R December 6, 2021 at 4:46 pm

Let’s be clear that this victory is via procedural technicality. Did the City screw up by not following legal requirements? Yes. But even if they did the full EIR – which BTW would have required years of delay and millions of *taxpayer* dollars – the fact remains that the voters of San Diego were just asked if they’re OK with buildings over 30+ feet here, and a clear majority of those voters said yes.

So this decision may be consistent with the letter of the law, but it also plainly reverses the will of the people. Oh, and it also ensures we’ll be stuck with that blighted part of town for many more years while they figure out and study a new plan. What a victory!


Mat Wahlstrom December 6, 2021 at 6:30 pm

Was wondering when the YIMBY claque would find this.

The requirements of fair election procedure, fully informed voters, CEQA, the courts, the rule of law itself, everything working as it should to thwart a corrupt land grab by private interests — dismissed with the claim that the ends justified the means.

If Measure E was as valid and necessary as you claim, then it wouldn’t have required being rammed through without public input and presented on the ballot under false pretenses. End of story.


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