Monthly Archives: February 2016

Cory Briggs Responds to Lobbyist’s/Lawyer’s Critique of Citizens’ Plan

I was thrilled to read in the San Diego Free Press the recent critique of the Citizens’ Plan that former City Councilmember Donna Frye and I have been promoting and that will appear on the November 2016 ballot. The critique’s author (a lobbyist and developer’s lawyer) raises an excellent question about the initiative’s effects on East Village and Barrio Logan, but he provides nothing except wrong answers that rest on a series of false claims. Responding to the critique thus gives me a good opportunity to explain some of the benefits of the initiative that have not yet received a lot of media attention.

Before debunking the specific claims in the critique, it is important to understand what the Citizens’ Plan does and does not do downtown. For starters, the initiative allows convention-center facilities, a sports facility (not necessarily football), or combined facilities within the boundaries of Imperial Avenue to the south, 17th Street to the east, K Street to the north, and Park Boulevard to the west – and nowhere else. Significantly, it includes no mandate that such development be given priority over any other development projects, offers zero guaranty that the development will come to fruition, allows the development to be done “in addition to” all other development already allowed, and requires that the development be done (if it’s done at all) “in accordance with all other applicable legal requirements.” In short, the initiative does nothing more than enhance downtown’s revitalization prospects.

At the same time, the Citizens’ Plan would bring about substantial victories for the public overall. Consider just two among many. Whether we’re talking about residents of East Village and Barrio Logan, or elsewhere in the City, all of us will benefit from having a competitive Transient Occupancy Tax rate because of the $18 million or more in additional revenues that would be generated each year. How much infrastructure could we fix with these new revenues? How may fire stations and libraries could we build? How many parks could we open?

Another benefit would be the preservation of the Qualcomm Stadium site in Mission Valley for higher-education uses. The Citizens’ Plan explicitly contemplates that the site will be made available for SDSU, UCSD, or our community colleges to use as “research and development facilities” with “campus-serving commercial buildings.” That’s essentially what the critique was praising for downtown when it touted “an education and high[-]tech cluster similar to what has happened near UCSD.” What good reason is there for ignoring such an opportunity in Mission Valley? Why limit it to downtown? Why not make it possible in both places?  There’s no good reason not to try it in both places.

The Citizens’ Plan has many other virtues, which will become evident as the critique’s claims are scrutinized. Let’s look at them now.

False Claim 1: “The Citizens’ Plan is oblivious to the urban neighborhoods it most impacts.” According to the critique, “nary a word is in the Plan about creating economic opportunities, educational opportunities, social justice, environmental health, homelessness, affordable housing, nor even the plans or aspirations of the neighborhoods it directly impacts.” It’s hard to take the assertion seriously because the author himself admits, in the very next breath, that “not every ordinance or plan can address or even touch upon these issues.” What the critique seems to be implying is that an initiative as lengthy as the Citizens’ Plan is – well, it should have also tackled some of the big issues affecting East Valley and Barrio Logan.

Guess what? It does.

What the largest yet-to-be-redeveloped portion of East Village needs is a realistic opportunity for substantial economic investment and a big dose of environmental justice. The likelihood of such an opportunity is greatly increased by the Citizens’ Plan in several ways. First, it reduces the burdens of compliance with the California Environmental Quality Act not only for the development made possible by the initiative, but also for any joint revitalization that combines at least one of the initiative-authorized uses with one or more uses already authorized. All such revitalization must still satisfy CEQA’s mitigation measures, which is the part of CEQA that implements the protection of people and their environment, but the other requirements of CEQA will not apply; that, in turn, seriously reduces the risk of project-delaying or -killing injunctions. This, of course, is a reasonable compromise because downtown in general and East Village in particular have already been the subject of considerable environmental analysis. The marginal benefit of one more lengthy study pales in comparison to the benefits of making it easier and less expensive to revitalize this part of downtown with all the environmental protections that CEQA mitigation provides.

Second, it creates competition among potential uses that will increase the likelihood that the MTS bus yard in East Village will be moved. If we are going to talk about environmental justice, then we need to own up to the injustice of that bus yard: the air pollution alone is disgraceful. Public-transit systems barely have enough money to operate, much less to relocate. The substantial monies needed to move the bus yard are not going to come from incremental redevelopment of a few million dollars here and there. In the absence of the necessary political will and considerable public finances, neither of which has been shown to exist so far, moving the bus yard requires a revitalization project that will be big enough and provide enough return to its investors that they are willing to absorb the relocation costs. The move will also require significant political pressure on the various decision-makers on the MTS board and at the City and County levels. The initiative gives major political players and business interests incentive to join with neighborhood leaders and advocacy organizations to ensure that the move occurs sooner rather than later.

That brings me to the third way in which the Citizens’ Plan will provide greater economic opportunity without sacrificing environmental protection for East Village and Barrio Logan: it requires a lot of interest groups who ordinarily would be fighting one another for a slice of the proverbial pie to work together to expand the size of the pie that everyone will share. There will be plenty to be gained for everyone through cooperation and compromise – far more than any narrow subset of stakeholders could ever realistically hope to achieve by going it alone – thanks to the incentives created by the initiative. People need to consider the likelihood of maximizing the revitalization potential for East Village and Barrio Logan without bringing more stakeholders into the fold. The fewer the stakeholders, the lower the odds.

In sum, the first claim is false because the Citizens’ Plan gives these neighborhoods far more opportunity and leverage in charting and improving their futures than the status quo provides.

False Claims 2 & 3: “The urban neighborhoods are doing well without their Plan.” “The Plan would impede the growth of an innovation district and replace it with a convention and entertainment zone.” These two claims rest on serious misinterpretations of the Citizens’ Plan. As noted above, nothing in the initiative “replaces” anything in East Village; what the initiative authorizes there is “in addition to” everything else that’s already on the planning books. In fact, the initiative was drafted with the “trend toward an educational and high[-]wage job cluster” that the critique’s author touts, and with innovative redevelopment like the Makers Quarter and IDEA District would help achieve, very much in mind. The initiative goes one step further, however, and contemplates such opportunities not only downtown but in Mission Valley too.

Sticking with downtown for the moment: while drafting the Citizens’ Plan, I spoke to multiple stakeholders about the potential for economic and land-use innovations like the Makers Quarter and IDEA District. There was lots of positive feedback that the opportunities created by a campus-style convention center on Tailgate Park – whether or not combined with a sports facility – would help accelerate the development of things like the Makers Quarter and IDEA District. Consequently, the potential for high-paying arts-, entertainment-, and recreation-related jobs would actually go up, stakeholders assured me, with the right design and integration of the larger facilities with the relatively smaller innovation- and tech-oriented businesses. The latter would encourage more human-scale development at the street level and offer the sort of diverse attractions necessary to bring year-around vibrance supported by locals and tourists alike to what might otherwise be dull and sporadic. Nothing in the Citizens’ Plan prohibits the pursuit of such synergies. (Just last week, JMI Realty representative Steve Peace was interviewed by NBC’s Gene Cubbison and described the company’s focus on “scalable,” “people-friendly” development.)

The critique mentions a variety of other benefits of innovation districts. Those benefits are certainly real. The author errs, however, when he implies that the “academic expansion” contemplated by the Citizens’ Plan for Mission Valley would make that site incapable of providing similar opportunities. He thinks it would be fantastic to bring a UCSD lab downtown as an “anchor institution.” If it would be a good idea to have a university expand and become a downtown anchor, why would it not be good to do the same thing in Mission Valley? The author doesn’t answer that question. He suggests there’s something about downtown’s infrastructure that gives it an edge, citing one of his own blogs last November. Among the “selling points” he mentioned there for a downtown satellite university were the “beauty of the location” and its “proximity” to the trolley line. Downtown and Mission Valley each have unique selling points, but proximity to the trolley line that already exists at the Mission Valley site and the potential beauty of the river park and other public amenities authorized by the Citizens’ Plan make that site very worthy of consideration for its own innovation district – regardless of whether such a district is pursued downtown.

To summarize: Claims 2 and 3 are false because the Citizens’ Plan would actually facilitate and enhance innovation districts not only in the East Village but in Mission Valley. The idea of such districts is too good not to export to other parts of the City. That’s why the initiative seizes the potential in both places.

False Claim 4: “A non-contiguous convention center or downtown stadium are not worth doing.” Perhaps more than any other, this particular claim reveals just how much the critique’s author misunderstands the Citizens’ Plan. Starting with the convention center, he insists that a “non-contiguous facility makes the investment even more risky by eliminating the mega-conventions which need contiguous space.” This is a rhetorical sleight of hand because currently there are no mega-conventions in San Diego – luring them here is the impetus for expanding in the first place – and thus nothing to “eliminate.” What’s worse, the analyses of potential new bookings identify only three and possibly four mega-conventions accommodated by a waterfront expansion. Yet not one of them has given the slightest enforceable assurance that it will break its existing contracts and move to San Diego as soon as a waterfront expansion is built. Waterfront boosters thus suffer from a terminal case of build-it-and-they-will-come syndrome. Basically, they want to use taxpayer money (rather than their own) to build a waterfront expansion on spec.

Meanwhile, the City’s updated analysis from last August shows, once we take into account the legal delays faced by the waterfront expansion, that an off-waterfront expansion would cost less public money and generate a comparable return on investment by hosting more sub-mega-conventions. That’s made possible in large part because two nearby facilities (in contrast to one large one) would have fewer lost booking days due to set-up and tear-down conflicts; there’s not enough room for a full house of exhibitors to be setting up and tearing down at the same time under one roof. Why spend more taxpayer money on a waterfront gamble that will generate no more return on the investment than will a less-expensive off-waterfront expansion?

As far as the Citizens’ Plan’s stadium component is concerned, the author’s right that stadiums are bad public investments. That’s precisely why the initiative prohibits the City from spending money on a stadium either as a stand-alone facility or as part of a joint-use facility.

Worries about the “delay” of building a stadium downtown are overblown. On the one hand, the only person who needs to worry about how long it will take to build a downtown stadium is Dean Spanos. If he can live with the timeline, nobody else should be concerned. On the other hand, the delays at Mission Valley will be just as bad if not worse because of the years of litigation that will dog that site if City Hall persists with its taxpayer-subsidized proposal. Comparing apples to apples, Mission Valley will not yield a new stadium any faster than downtown will.

So while it may be true that the economic justification for expanding the convention center or building a new football stadium is not overwhelming, the Citizens’ Plan’s approach to expanding off the waterfront and allowing a stadium component protects the taxpayers and the waterfront better than any other alternative. If they’re worth doing at all, then the best way to pursue them – the one with maximal public protection and benefits – is the way envisioned by the initiative.

False Claim 5: “Public access is a red herring.” No, it’s not. The drawing included in the critique shows the contiguous expansion going all the way up to a narrow promenade adjacent to San Diego Bay, with a very small section of “open space” between the convention center and the Hilton Hotel to the south. The author could not be more off the mark when he writes that “the contiguous convention center expansion . . . leaves this gap largely untouched.” The “gap” is not the concern. The concern is the much larger park that currently exists but would be completely covered up by the alternating light-green-dark-green polygonal structure shown in the drawing on the waterside of the building. The park exists there today; it won’t if the contiguous expansion occurs.

Another aspect of the contiguous plan that many people forget is that the loading bays will disappear. Look again at the drawing. Do you see where big-rig trucks are going to park while their contents are loaded and unloaded? You don’t because that space has been eliminated. Today there’s a rather large loading bay for this purpose, but the drawing shows exhibit space where the loading bay is. Where will those trucks load and unload if the contiguous expansion occurs? My money says they’ll be parking in the “200-300 foot gap” that the critique’s author isn’t concerned about. With or without the loading bay, however, the public will lose a significant amount of access and open space that it currently has on the waterfront.

Claim 5 is therefore false. Contrary to the author’s insistence, there’s nothing about such losses that would constitute an improvement to coastal access or public space.

False Claim 6: “The Plan impacts urban neighborhoods and deprives them of input.” This claim fails in three ways. First, as explained above, the Citizens’ Plan would encourage innovative revitalization like the Makers Quarter and the IDEA District. It stifles nothing and actually increases the development potential in a way that will improve the chances of innovative revitalization taking hold.

Second, fears about parking impacts are overblown. Unlike projects already authorized downtown, the Citizens’ Plan requires all development that it authorizes there to adopt a legally enforceable “plan to reduce vehicle miles traveled to the [site] that includes incentives for the use of public transit.” What other downtown project has that as a legally enforceable requirement? I cannot think of any.

Third, the Citizens’ Plan flat-out states – in plain English – that all downtown development it authorizes “shall comply with any and all mitigation, monitoring, and reporting requirements that would be required under [CEQA] in the same manner and to the same extent as a project that is not exempt from environmental review under [CEQA].” It goes on to require that the City “provide the public with an opportunity to review and comment on any proposed mitigation, monitoring, and reporting requirements” and “adopt the requirements at a public hearing” convened by the city council.

In short, one doesn’t need a law degree to see that the Citizens’ Plan contains language to ensure that every member of the public – not just those who live in or close to downtown – would be given a meaningful opportunity to provide input about the redevelopment it contemplates to their elected representatives. (In fact, at least as far as the critique’s author is concerned, having a law degree seems not to have been helpful at all. He cites the initiative’s reliance on “Public Resources Code sec. 21178, et seq.,” as a prime example of how the “impacted neighborhoods would . . . be deprived of CEQA input. . . .” It’s hard to fathom why he chose this example because Section 21178 et seq. is one of those statutes that requires compliance with CEQA’s public-input rules. Nothing in Section 21178 or elsewhere in the initiative gets a pass on public input.)

False Claim 7: “Plan backers and their motivations. . . .” There isn’t much of a claim here – just an attempt to impugn peoples’ motives. But the Citizens’ Plan’s backers have been very transparent about their motives, sharing them with public agencies, on the internet, at public meetings, and in the press: Donna Frye wants to see more park space in Mission Valley and wants voters to weigh in on the subject of tourist taxes; John Moores wants to see Mission Valley set aside for higher education; JMI Realty wants to see the waterfront protected for the public and not walled off by a contiguous expansion because it thinks that’s better for the future residents and businesses in East Village; and my clients and I want to see the last 15 years of gridlock at City Hall and the growing infrastructure deficit come to an end.

Unlike the backers’ transparency, the critique’s author did not think to disclose that he is the business partner of a sitting Port of San Diego commissioner. Why does this matter? It’s the Port that controls the waterfront where the contiguous expansion would take place, it’s the Port that would receive the rents and royalties from trading the public’s open space and coastal access for the expansion, it’s the Port that insisted on asking the Coastal Commission to bless the proposal despite knowing that the tax necessary to finance it might fail in court, and it’s the Port as much as any government agency that cow-tows to the worker-exploiting waterfront hoteliers. Not surprisingly, the author’s business partner voted for the contiguous expansion. All of this was left out of the critique.

It’s fine to raise questions about someone’s motives when they’re relevant to the discussion. In my experience, however, it’s the motives of naysayers who don’t disclose their connections, affiliations, and financial interests that the public should fear most.

False Claim 8: “History is repeated by the Citizens’ Plan in undermining urban neighborhoods.” By this point, anyone reading this response can explain why the critique’s author is wrong when he writes that “[t]he Plan is shockingly oblivious or callous to the challenges and aspirations of the surrounding communities, as well as the potential role the East Village site plays in San Diego’s economic future.” The Citizens’ Plan creates more opportunity in part by facilitating innovation-oriented land uses like those favored by the author, and it gives all San Diegans a strong voice in how the site is developed.

The problem with this claim is not limited to being false, however. What’s worse is the deeply disturbing suggestion that the Citizens’ Plan’s backers are guilty of “heavy[-]handed tactics” like those employed to defeat the Barrio Logan Community Plan at the ballot box. It’s this sort of inflammatory hyperbole that leaves one to wonder whether the author is truly clueless about the Citizens’ Plan’s backers or intentionally trying to poison the well. Not one of its backers was involved in trying to defeat the Barrio Logan Community Plan, and many of them were staunch supporters.

False Claim 9: “The undemocratic, and sometimes unconstitutional, nature of comprehensive initiatives weighs against the Citizens’ Plan.” Once again, the critique’s author is casting the Citizens’ Plan in a negative light without explaining the actual problem presented. Certainly measures like this initiative should not be a first resort in our democracy. But when our political institutions persistently fail us – and make no mistake, our local politicians and the well-heeled special interests controlling City Hall have been failing us on the issues covered by the initiative for nearly 15 years – it is perfectly reasonable for citizens to take their case to fellow voters.

The only semi-legitimate question the author raises is over the single-subject rule that all initiatives must satisfy. But as with practically every other question he raises in the critique, he does not even attempt to answer it – apparently content just to kick up some dust – so I will.

There is no single-subject problem, period. Courts presume that citizen initiatives are valid until the challenger proves an indisputable violation of the law. The single-subject rule requires nothing more than a set of reasonably germane components that share a common theme. The precedent court decisions invalidating an initiative for violating the single-subject rule are outnumbered by the decisions upholding initiatives against single-subject challenges.

Anyone who doubts that sporting events, coastal resources, the convention center, tourism, and the public revenues generated from tourists have nothing in common need look no further than the San Diego Tourism Marketing District. Each year it provides roughly $30 million in financial support for college-football bowl games in Mission Valley, for racing events on and around Mission Bay and San Diego Bay, and for the San Diego Tourism Authority, which handles the convention center’s long-term bookings. TMD’s largesse comes from a 2% tax that hoteliers collect from tourists. Wherever you find one of these things, you need not look too far or long before you’ll find another.

So while I have no doubt that more than one special interest will want to challenge the Citizens’ Plan – they rightly fear that it will substantially weaken their political stranglehold on City Hall – the single-subject argument will get them nowhere fast.

In a blog written a little over two months ago, the critique’s author described the downtown land covered by the Citizens’ Plan as “the largest undeveloped, most generously zoned, and most strategically located land in downtown,” and concluded that it is “the most valuable land in the city – both in monetary value and for its value in shaping the City’s future.” I couldn’t agree more.

That’s why it makes tremendous sense for “the most valuable land in the city” to play a central role in the only initiative in nearly 20 years that has dared to shape the City’s future not for the benefit of a few special interests but rather, first and foremost, for the broader public interest.

CJB

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