Can State Policy Trump the Will of the People Over San Diego’s Coastal Height Limit?

A recent opinion piece by a state agency bureaucrat on the coastal 30-foot height limit has developers and San Diego’s establishment licking their chops.

Shannon West, head of housing accountability for California’s Department of Housing and Community Development, wrote “a technical assistance letter” which declared the 30-foot height limit conflicted with state law and thus was “void.” The letter was for San Diego’s development services department

Heidi Von-blum, director of San Diego’s planning department, immediately leaped for joy and repeated the claim that state law supersedes “local voter initiative.”

Why this all came about now is because a local developer, the San Diego Community Housing Corporation, wants to build a 60-unit, 60-foot-high residential building, called Rose Creek Apartments, on a 0.4-acre site at 2662 Garnet Avenue in Pacific Beach. Marcela Escobar-Eck, CEO of Atlantis Group Land Use Consultants and advisor to the developer told the San Diego Union-Tribune that the proposed development would be a four to five story building.

And given the 1972 voter initiative that banned buildings over 30 feet high west of I-5, this proposed development would conflict with the height limitation that has been maintained for half a century. The local law includes carve-outs for downtown, parts of Mission Bay and was only intended for the City of San Diego.

But now we get this “ruling.” West, as quoted in the U-T, stated:

“The State Legislature can and does preempt local initiatives. The (30-foot height limit) development standard conflicts with State Density Bonus Law and is void.”

“It appears that a substantial amount of land shares the same particular characteristics as the subject site. It is HCD’s hope that the determinations made in this letter might serve to further facilitate the production of affordable housing in these areas.”

The U-T advised:

Of greater consequence, however, is language in West’s letter that states that HCD’s determination applies to any qualifying housing development that falls within San Diego’s voter initiative-defined coastal zone but is outside the state’s coastal boundaries. That means the determination extends to portions of University City, Pacific Beach, the Midway District and the South Bay. …

In other words, San Diego’s coastal height limit overlay zone is no match for the state — and taller apartment buildings are inevitable.

The opinion piece by West is being circulated, we can believe, among the development teams vying to be picked to redo the Sports Arena area, among Mayor Gloria’s staffers, within Campbell’s office and between all kinds of developers who now eye the entire Midway District with renewed relish. The entire area of 1400 some acres could be opened for redevelopment and we don’t have to wait or rely on another messy and time-consuming ballot measure.

And many are jumping on the opinion letter as if Moses carried it down from the mountain along with the Commandments.

Heidi Von-blum triumphantly cried out:

“This particular opinion from HCD is very clear that the local voter initiative cannot supersede the State Density Bonus Law, which requires the city to grant certain waivers and incentives for projects that include affordable homes, absent very specific findings that would warrant denial for public health, safety and welfare.”

Sunday’s U-T editorial entitled, “Local Project May Mark New Era in Housing,” gave it a push: “Here’s hoping the Garnet Avenue project is the harbinger of a new era.”

The Voice of San Diego was more circumspect in its brief public comments on the opinion:

Is it as big of news as it sounds? The coastal height limit can only be breached if voters approve an exception to it, as they did for SeaWorld and almost did for the Midway area until a lawsuit threw out the ballot initiative that did it.

But, at least the Voice recognized that despite the affordability aspects of the Rose Creek project and the bureaucrat’s reading of the law, the “voters” still have something to say about it all.

Which brings us to the point that the U-T reporters and editorial writers fail to grasp. The will of the people.

Can the will of the people on this issue that has been called “the third rail of San Diego politics” be so casually brushed aside? Can the will of the people as was vehemently expressed by an overwhelming majority of San Diego city voters in 1972 that established the 30-foot height limit be simply now “void?”

Can developers advised by people like Marcela Escobar-Eck — who has a checkered history locally from pushing SeaWorld’s misrepresentations years ago — now walk over the results of a landslide of 64% who voted for the initiative that established the coastal height restrictions?

And it wasn’t just the coastal communities that voted for it – it was across the board – many neighborhoods went for it with the attitude, ‘it’s our beaches, too’. Ocean Beach and Pacific Beach voted for it by 80%.

Can state policy trump the will of the people?

The San Diego establishment was never for the 30-foot height limit and has worked to undermine it since its inception; the city council was forced to place it on the ballot – after waiting a year, and there were multiple legal challenges from the building industry. Here’s our earlier accounting of that history:

In January of 1973, the legal challenges to Prop D ended up in Judge Welch’s San Diego courtroom and he overruled it. But in November of that year, the Appellate Court reversed Welch, ruling that Prop D was indeed constitutional – that the California Constitution does allow citizens to create petitions, as they did in this case, and therefore, the result was legal.

That wasn’t the end of it. The construction industry took Prop D to the California Supreme Court, which upheld it, and then the developers took it to the US Supreme Court – which refused to hear it – this was in February 1976 – which meant that the lower court’s ruling stood. Prop D was finally resolved.

So, Prop D was overwhelmingly passed by the voters of San Diego in November 1972 – but it wasn’t until February 1976 that the voters’ will was finally enforced.

Much as many of us thought the issue had been resolved 50 years ago, the questions raised by this recent “technical assistance letter” from a state agency promise to be bitterly played out over the next period of time as we grapple with the very complex issues of affordable housing, homelessness, building restrictions and quality of life.

[Editordude: for more on the State Density Bonus Law trumping local land use, see Mat Wahlstrom’s post.]