State Court of Appeal Upholds Ruling Against Gloria and Campbell’s Measure ‘E’ in 2020

by on June 27, 2023 · 4 comments

in Election, Ocean Beach, San Diego

A flier by opponents of Measure E.

On Friday, June 23, the local state Court of Appeal upheld Superior Court Judge Katherine Bacal’s ruling that the city should have studied the environmental impacts of taller buildings more than 30 feet before putting Measure E in front of voters back in 2020.

The founder of the group that brought the appeal, Save Our Access, stated, “Today the people won a major victory.”

More, specifically, California’s Fourth District Court of Appeal upheld Judge Bacal’s decision in December 2021 to invalidate the 2020 ballot measure that sought to lift the 30-foot height limit in the Midway District. Bacal had ruled that because the city did not properly analyze the environmental impacts of buildings taller than 30 feet, the city violated the California Environmental Quality Act.

However, the appeals court decision does not apply to Measure “C” — the so-called “do-over ballot measure” — which passed in November2022 with a bare margin of a 51 percent approval. It is also being contested in court.

John McNab, of Save Our Access — the plaintiff in the case stated:

“The mayor and council have been determined to mislead the public in order to give away our prime coastal public land to their campaign contributors with the effect of blockading citizen’s access to the coast.”

As Jennifer van Grove reported at the U-T [paywall]:

The Fourth District Court of Appeal said Friday that the city erred in presuming that the state-mandated 2018 environmental impact report prepared alongside the new Midway-Pacific Highway Community Plan adequately considered the impact of taller buildings. The 30-year blueprint allows for major land-use changes and a population boom of 23,660 people, but it did not explicitly contemplate taller buildings.

Justice Joan Irion wrote the court’s published opinion and Justices Richard Huffman and Terry O’Rourke concurred. Justice Irion wrote:

“The city argues that because city-wide base zones allowed maximum structure heights more than 30 feet in some zones, we should understand the (community plan update) anticipated there would be a later proposal to remove the coastal zone height limit. We are not persuaded. Expecting the court or, more importantly, the public to understand from the (community plan update) that the coastal zone height limit could be removed at some future date based only on references to city-wide base zones, is fundamentally inadequate and inappropriate.”

The City Attorney’s Office is still reviewing the appellate court’s decision. The city could request a rehearing or petition the state Supreme Court.

Some background: Since 1972, the Midway District has been subject to the 30 foot height limit because of an overwhelming vote by the residents of San Diego to protect access to the coast — then under assault by run-away development.

In 2020, the city pushed Measure “E” in front of voters which would have striped the Midway District’s community plan area out from the coastal zone to allow for the redevelopment of the area, particularly the city-owned land around the Sports Arena. It passed by 57 per cent.

Then came Judge Bacal’s ruling in December 2021.

As van Grove reported:

At the direction of Mayor Todd Gloria, San Diego then advanced a dual-track approach — with the city pursuing both an appeal and a repeat ballot measure — to keep from derailing efforts to remake the city’s sports arena real estate. The appellate route now appears to be nearing a dead end. …

The city is banking that its backup plan, Measure C, is on solid legal footing. In early 2022, the city’s planning department prepared a supplemental environmental impact report that studied the visual impacts of buildings up to 100 feet tall, as permitted by the different zones in the community plan, ahead of presenting the do-over initiative to voters. The analysis studied 10 view corridors that look into the Midway area, and found there would be significant and unavoidable impacts to views and neighborhood character with the removal of the coastal height limit.

The addendum, however, did not analyze the impact of taller buildings on other environmental factors, such as traffic, noise and air quality. As such, the supplemental analysis is deficient in scope, according to Save Our Access, which sued again last year, alleging that the second ballot measure also violates the California Environmental Quality Act. That case, also assigned to Bacal, is still pending in Superior Court.

Development group Midway Rising — whose head was the major campaign contributor to Mayor Gloria’s election — was selected last year by the city to redevelop the sports arena at the express urging by Mayor Gloria and, as van Grove reported, “is moving forward with a large, mixed-use project under the assumption that Measure C will hold up in court. The group’s plan calls for 4,250 residential units, a new 16,000-seat arena, a 200-room hotel, and 20 acres of plaza and park space. Earlier this month, billionaire Stan Kroenke signed on as the majority investor in the project.”

{ 4 comments… read them below or add one }

chris schultz June 27, 2023 at 1:00 pm

Wow, 4250 residential units. How many are low income?


sealintheSelkirks June 27, 2023 at 2:38 pm

Anybody else re-read the last paragraph twice? Thirty years ago I took a university ‘Deductive Logic’ class…

Are these blatant indicators of extreme corruption of politics or what? Of course it’s all circumstantial evidence but poor people get put in prison all the time with circumstantial evidence while the wealthy powerful…not so much.

So… Rich man who heads the development group that looks to gain a veritable mountain of money from a project they want to do is THE top bribe giver…oops, excuse me, my bad; ‘campaign contributor’ to a politician to push the project. For no other reason than he’s a nice guy maybe? Check!

Politician pushes said project. Check!

Politician obvious ‘pre-selected’ rich man to run the project by expressly urging him as only candidate to be appointed. Check!

Politician uses tax money to fight to overturn regulations that rich man doesn’t like that will constrain the project. Check!

Also pushes crooked ballot measure just in case. Check!

Politician’s flunkies appoint rich man in charge. Check!

Another even richer man signs on as a ‘major’ investor to the project. Check!

Anybody so ignorant to think sociopath billionaires do ANYTHING that won’t make them more money? Check!

The links in the chain are…just freaking astounding yes? I think this is a wonderful example of Kabuki Theater.

And the only hope left lies with lawyer/politicians that are called ‘judges’ in the hopes that it can be halted before too much damage is done.

Can’t make this stuff up.



natalie July 4, 2023 at 9:31 am

Alternatively, we leave the Sports Arena area exactly how it is — with a run-down stadium, dangerous pedestrian and bike routes, and a rising houseless population. I hate rich people too but it takes money to redevelop. Tall buildings in the Midway corridor will do absolutely nothing to impact coastal access or views. Tying this up in court is super lame and everyone who voted against Measure C and supports these lawsuits is doing a huge disservice to the City.


Deb Porter July 22, 2023 at 12:28 pm

What about building a lot of nice 30 ft. residential units and scrapping the new arena. It wont make as much money for the developers, but would enhance the midway district in terms of usefulness and charm, and provide much needed residential homes. We don’t have to have the black or white: “blight” or “overdevelopment”. There are always other choices that can be made.


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