From Neighbors for a Better San Diego
Councilmembers:
Regarding the currently proposed Midway Rising project, Neighbors For A Better San Diego is concerned that the planned affordable units may not get built by the developer, and that, despite the intervention of the Legislature, further environmental review may still be needed.
Given that the Council is relying on recently-enacted state laws (SB 344 and SB 958, both authored by Sen. Akilah Weber Pierson) to proceed forward with the Midway Rising project,
Neighbors For A Better San Diego would like to raise concerns with these bills.
SB 344 creates clear expectations of the number of affordable units that will be built by the project:
21080.77. (a) The Legislature finds and declares all of the following:
(1) The City of San Diego has approved, or may approve, a mixed-use development project known as the Midway Rising project, consisting of approximately 4,254 new homes, of which 2,000 are deed-restricted affordable homes at or below 80 percent of area median income, up to 130,000 square feet of commercial uses, approximately 14.5 acres of public parks and open space, and a new 16,000-seat multipurpose entertainment center. [emphasis added]
We read the above section as binding the City of San Diego to the delivery of 2,000 affordable units if it uses SB 344 to avoid further environmental review, as directed by the Court in Save Our Access v. City of San Diego.
This is problematic because the developer is proposing to pay for the affordable units with tax credits. Tax credit funding is highly competitive and there is a strong likelihood that the
developer will not be able to secure those funds and deliver those affordable units. If that happens, then the above language of SB 344 would appear to obligate the City of San Diego to deliver the affordable housing units, potentially creating a massive financial liability for the city.
Therefore, the Disposition and Development Agreement (DDA) needs to include a binding commitment that the developer will deliver the promised 2,000 net new affordable units, and
in the event that the developer fails to meet that commitment, there needs to be an airtight arrangement that the developer will indemnify the city against any claims arising from the
failure to deliver the number of affordable housing units committed to in SB 344.
SB 958 does not provide an alternative path to moving the project forward without further project-specific environmental analysis because it only applies under the following conditions:
21080.82. For purposes of this division, the environmental impacts of a project that are associated with increased building height alone, including, but not limited to, air circulation, noise and light refraction or reflection, shadow, or the potential to attract wildlife, shall not be considered significant impacts on the environment if the project meets all of the following conditions: [emphasis added]
(a) The use and density of the project is otherwise analyzed in a certified environmental impact report.
(b) The project is on a previously graded infill site. [emphasis added]
(c) There are no sensitive biological resources physically present on the site.
(d) The project is not an industrial use project.
(e) The project is consistent with local airport land use plans.
The most logical reading of Section (b) is that it only applies to sites that don’t require substantial regrading. Effectively, “previously graded” should be construed as “already graded,”
and, other than scraping existing improvements, the site is ready for development. Put differently, SB 958 only exempts the above-ground impacts of a project; it does not exempt
the below-ground impacts.
Midway Rising does not meet the conditions of SB 958. When buildings go up, their foundations need to go down, and Midway Rising is no exception. In order to build the proposed 250-foot towers, the developer will need to dig down 60 feet or more to provide stable footings for the new structures. This means the site will have to be substantially regraded and SB 958’s exception for “a previously graded infill site” will no longer apply.
The Midway Rising project carries enormous environmental and financial risk for the City of San Diego, especially due to the concerns about sea level rise in the Midway District and the uncertainty of how much soil contamination lies beneath the asphalt paving of the Sports Arena’s parking lots. A full environmental review would provide the Council with the
understanding that it needs to have to avoid another Ash Street-like environmental calamity.
Further, SB 344 and SB 958 were hastily-written bills that were pushed through at the end of the legislative session and did not receive the full consideration of either the State Senate or Assembly. As a result, these bills raise questions that may have to be resolved in the courts and further delay the project.
Respectfully, Geoffrey Hueter, President
Neighbors For A Better San Diego
