Make It Fair | Letter to the Editor | Residocracy Iniative Opposition | Residocracy Iniative Questions

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LWVSM Letter to the Editor

Santa Monica Lookout

June 13, 2016

Dear Editor:

Mr. Melkonians' comments in your article of June 8, 2016 indicate that he doesn't understand the process by which the League of Women Voters of Santa Monica decides its positions on local ballot measures ("Santa Monica League of Women Voters Accused of Bias," June 8, 2016). It's not a vote. We come to consensus. It's more like what you may be familiar with when a jury reaches a verdict.

We study an issue. We look at the history behind a measure, situations in which similar measures have been adopted (or not), and we examine the arguments for it and against it. Then we get together to discuss and debate our proposed position (or proposed decision to not take a position).

This is the procedure we used with regard to the Residocracy Initiative.

And there was a robust debate among members of our board in this case. Had the board members decided they could not or did not support it as a group, we would not have reached consensus. We would instead have declined to take a position.

So Melkonians' assertion that four "votes" were assured just does not make sense in light of the procedure we followed.

The consensus meeting was long and various points of view were fully presented and argued. Our consensus was based on the authority given us by policy positions developed well before anyone could have even imagined the Residocracy Initiative.

-- Ann Williams

LWVSM Opposes Residocracy Iniative

The League of Women Voters of Santa Monica Ballot Measure Update for November 8, 2016 General Election Residocracy Initiative: OPPOSE

We are a community of strong and varied values willing to speak out on the many issues that absolutely need addressing in Santa Monica.

The voters of Santa Monica are again being asked to decide whether one specific initiative on November's local General Election ballot will resolve Santa Monica's development, housing, and traffic issues in a way that reflects our collective vision of what our community should look like and what our role and responsibility as voters/community members should be.

A citywide initiative, crafted by Residocracy leaders (the proponents), has qualified for the Santa Monica General Election 2016 ballot. Proponents have titled it the Land Use Voter Empowerment or LUVE. The ballot title given it is as follows:

An Initative Measure Amending the City's Land Use and Circulation Element (LUCE) and Zoning Ordinance to Require Voter Approval of Certain Development Projects that Would be Subject to a New Permit Requirement of All Development Agreements, and of Certain Changes to the City's Land Use and Planning Policy Documents Subject to Specified Exemptions

Because provisions in the initiative could impact election, voter, community and government-related processes, as well as the housing supply in Santa Monica, the LWVSM board of directors deemed it important enough to study.

It should be noted that because of the complexity and level of contention around this measure, the study itself was 15 pages in length, required an excess of 50 hours of research, discussion and writing, and includes a series of questions that were raised in the process. The committee considered not only the language of the initiative, but specifically thought through steps needed for implementation of it various provisions, both programmatic and operational.

Based on the study's findings and the applicability of numerous League positions, the board of directors unanimously voted to oppose the Residocracy initiative and sign the ballot arguments in opposition, if asked.

It is clear that here are many issues that need addressing in Santa Monica. The LWVSM board was tasked with determining whether this particular initiative would be effective in addressing the issues that are being raised. The board was also tasked with reviewing the process aspects of the initiative and to determine whether they, as the proponents say, increase transparency, engagement, voter empowerment, responsiveness, accountability and democratic process in the City of Santa Monica.

After reviewing the study and an additional two-hour discussion and consideration, the LWVSM board reached consensus around the following. (Note: this is a partial list.)

We believe that:

• this particular initiative will not be effective in addressing the issues being raised by Residocracy;

• there are numerous questions and concerns about the implementation of various provisions that become apparent when going beyond the language of the measure and following them through operationally;

• the inflexibility of the requirements for amending the initiative creates unnecessary obstacles to the voters when a need to clarify, amend, or correct its language arises;

• these obstacles would interfere with Santa Monica's ability to engage in thoughtful long-term, integrated land-use planning, even if voter-driven as the initiative calls for;

• the provisions regarding affordable housing are misleading;

• in a world of Citizens United, in which both individuals and corporations can spend unlimited amounts of money on issue campaigns, increasing the number of issues that must be placed on the ballot could impact the amount of money on all sides in our local elections dramatically;

• there are questions about the provisions of the initiative that appear to interfere with the City of Santa Monica's Administrative authority. If it limits City administrative authority...the measure could be legally invalid under the California Constitution, which prohibits initiatives on administrative matters. That was a question raised during the Measure D campaign in Santa Monica, as well as by the court on a similar issue that was raised by Measure R in Malibu.

• the initiative, when taking all of its provisions into account, would not result in an increase in transparency, engagement, voter empowerment, responsiveness, accountability and democratic process in the City of Santa Monica; and

• the community conversation should reflect informed engagement and an understanding of the major public policy issues that are being raised.

The League believes in representative government as established in the Constitution. In Santa Monica, that form of government is described in the City Charter. Our mission includes encouraging informed and active participation in government and working to increase understanding of major public policy issues.

Questions Re: Residocracy Iniative

Questions Raised During the Study of the Residocracy Iniative 2016

In reviewing this initiative, we identified a number of specific questions that arise from going beyond the language of the measure and following it through operationally. Our questions and concerns are as follows:

Like Measure D—and noted in our analysis—citing the City Attorney—If it limits City administration…the measure could be legally invalid under the California Constitution, which prohibits initiatives on administrative matters. This is actually an interesting question. State law makes a distinction between “legislative” and “administrative” land use approvals. When it adopts new rules, a city is acting in its legislative capacity; when it applies existing rules to a specific project, it is acting in its administrative capacity. In November 2014, Measure R was approved by the voters of Malibu. Measure R was similar to the LUVE requirement that, among other things, requires voter approval for projects over a certain size. A Los Angeles Superior Court decision recently found the following with regard to Measure R:  

Measure R changed the procedure and substance of implementing the City’s land use policy by adding … voter approval requirements to the City’s project decisions. It is one thing for voters to challenge a specific plan by petition and referendum…or for voters to approve a general plan amendment by initiative which is then challenged by mandamus…but it is another for voters to pass an initiative to compel a city to submit each commercial project for voter approval by means of a specific plan. The former are permissible, but the later restricts the City’s administrative discretion and places it firmly within the category of voter enactments of administrative matters, which are not permitted…This is beyond the initiative power reserved to the people under the California Constitution. (Superior Court Decision, p. 16-17). This decision is in the process of being appealed.

Six projects not happening because of community push back: list. When the City Council approves a Development Agreement it is acting in its legislative capacity. If residents of Santa Monica disagree with the Council’s legislative action they have the right to seek redress through the referendum process to overturn the decision. Example: The Hines project. 

The LWVSM believes that it is our best interest to systematically do long-range planning, including for transportation/traffic management and land use, including housing/rental needs. Furthermore, the League believes there should be standardization and modernization of local building and zoning codes to conform with a state code that encourages the use of density bonuses; mixed, cluster and inclusionary zoning; second units; infill development; air rights; and increased density along transportation corridors. All this to be done well and in the best interest of our community and the region requires the ability to engage in a long-range, systematic, integrated planning, reliable and flexible planning process, none of which could happen under the provisions of the initiative.

In the early 1990s, Santa Monica voters passed proposition R, an initiative that requires that “33% of all new multifamily units in the city be affordable to low and moderate income households"[1]. This has been a strong force in the creation of affordable housing in Santa Monica. In addition, until their dissolution in 2011, California redevelopment agencies.[2] provided some funding for the creation of 100% affordable housing. Since the loss of the RDAs and the funding they previously provided, affordable housing in Santa Monica is now typically created alongside or within market rate housing projects. 

The initiative as written exempts 100% affordable housing projects of less than 50 units from the voter approval requirement (and possibly other requirements mandated by the initiative). However, the initiative does not make any mention of funding for said affordable housing. Without a dedicated funding source, affordable housing is nearly impossible to create. Under the current system, when a developer proposes creating market rate housing in any project, they have to create on or off-site affordable housing and/or pay into the city’s housing fund. Given this system, the city’s ability to create affordable housing will be severely impacted if the measure should pass. In addition, if the creation of affordable housing within the guidelines of the initiative also requires any amendments to the current zoning code, it may still have to go to a vote of the people. 

For example, the recently approved 100% affordable housing project at 1624 Lincoln Blvd. would be subject to voter approval (and possibly other requirements) per the initiative as written due to the following reasons:

• The project has 64 units—the initiative only exempts projects of 50 units or less

• The project required a zoning amendment as the result of an administrative error on the zoning map. Under the proposed initiative, this type of zoning change would likely have to be approved by the voters

• The funding for this project is being provided as part of the development agreement for 500 Broadway. Under the proposed initiative, the 500 Broadway project would have had to undergo the “Major Development Permit” review including, but not limited to voter approval. In this type of environment, we do not know if the applicant for 500 Broadway would have proposed this kind of project.

The League believes that all people have a right to safe, decent, and adequate housing. LWVSM supports a variety of housing types, which maintain the quality of neighborhoods and which promote economic and social diversity within the community while preserving contiguous open space, environmental resource protection, and efficient use of land.

Leagues throughout California believe in the removal of barriers that inhibit the construction of low and moderate income housing including eventual elimination from the Constitution of the provisions for voter approval before a low-rent housing project may be developed, constructed, or acquired by a public body.

The costs of having to undergo an election may be prohibitive for all but the largest projects. In addition, should this initiative be passed by the voters, there is a possibility that developers of mid-sized projects may be hesitant to go through the “Major Development Permit” review process and instead choose to build what the land may be currently zoned for, such as new commercial or office development.  

In other words, would passage ultimately result in fewer resident students, both in number and diversity? (i.e., will it significantly reduce affordable housing availability and will it put more pressure on existing housing/rental supplies in the city, causing housing and rental rates to further increase, beyond the reach of families with children, thus decreasing the student population and its diversity and state funding?). The language of the measure says affordable housing projects of less than 50 units are exempt from the vote requirement and proponents contest the interpretation this entire question implies.

School districts can exempt themselves from local zoning for classroom facilities. There is a question as to what is currently considered to constitute "non-classroom facilities." Since the Residocracy measure does not specifically exempt our public schools, to the extent any part of a public school is not deemed to fall within the definition of "classroom facilities," it could be subject to the restrictions imposed by the ballot measure. 

And…If subject to that requirement, would such requirements also apply in the Malibu portion of the district or only to those school district properties geographically located in Santa Monica?

Until the question was raised, we had assumed all school district building and modernization projects would be exempt whether mentioned in the initiative or not. But, since the question has been raised, and the initiative imposes a 20-year requirement and it cannot be amended, clarified, or corrected without going back to ballot, we figured we should raise the question and explore the issue a bit -- especially since both the school district and the college district are still doing construction and modernization and both will undoubtedly want to put a facilities bond on the ballot within the 20-year timeframe. We will continue to pursue these questions.

We sent this and the previous question to the school district, and will also be contacting the community college district. Reviews are pending and we will be following up with both.

Private schools are subject to local standards and would not be exempt. Non-profits are not exempted, therefore, organizations such as the Boys and Girls Club are also subject to the Residocracy measure. They would have to choose election expenses over other services for children to build facilities subject to this measure.

Section 619 of the City Charter states “no ordinance shall become effective until thirty days from and after the date of adoption.”  Development Agreements (DAs) are adopted by the City Council as ordinances (legislative action) and become effective thirty days after adoption in accordance with Section 619. However, the initiative requires voter approval and, therefore, a much longer timeline after adoption by the City Council before a DA becomes could become effective. This would appear to violate the City Charter, thus requiring a Charter amendment to be valid.

Section XI: AMENDMENT OR REPEAL states the following:

Once this Initiative becomes effective, no provision may be amended or repealed except by a majority of the voters of the City of Santa Monica voting on the amendment or repeal in a special or general election.

There are a number of questions about many of the provisions of this initiative, including provisions that will probably end up in court, yet the amendment/repeal process is extremely inflexible and the measure has a 20 year sunset, locking its provisions in for 20 years unless the amendments are taken back to a vote of the people and an expensive election process. Generally initiatives allow some ability to improve on complex measures when inconsistencies or unintended, negative consequences are identified. An example of such language could be: Giving the City Council the authority to amend as long as the amendment(s) is (are) in keeping with the intent of the measure and City Councilmembers concur by a 2/3 supermajority at a regularly scheduled City Council meeting.  

Section XV: PRIORITY states that:

If the initiative passes and becomes law, its provisions shall prevail over and supersede all provisions of the Municipal Code, ordinances, resolutions, and administrative policies of the City of Santa Monica, which may be in conflict with any provisions of this measure.

What is the practical impact of this provision? It brings a number other documents that are not before the voters into play–providing an example of lack of transparency, despite proponents’ claims of creating more transparency. It also brings back into play the distinction between legislative and administrative authority. Nor is it reasonable to expect that the electorate will understand or have time or desire to study the interactions and possible interactions of the initiative with these documents and their provisions, not to mention the interactions of state and local code and other requirements. That is what we elect our representatives to do, and they in turn, appoint commissioners and have staff to do the indepth administrative work. We have a long established tradition of representative government at all levels of government in the United States, which, of course, includes Santa Monica.

Again we have a specific reference to “administrative policies.” 

• More frequent complex ballot measures being placed before the electorate for final decision after going through Santa Monica’s extensive community outreach and deliberative process?
• Situations in which most voters don’t read and don’t really understand the complex issues being placed before them, resulting in the minimally informed casting of ballots based on contentious campaign talking points?
• Having the ultimate effect of leaving important, complex decisions in the hands of the few vested voters willing to stay sufficiently engaged?
• More frequent, more expensive elections with no limit on expenditures?
• Larger/richer developers who can afford the process and time involved?
• More money in elections / less transparency / more talking points-based campaigns / voter fatigue?
• Decreased ability of the City to engage in long-term, systematic, integrated land use planning?

Additional Questions for Consideration

The measure is silent on this issue.

The language is unclear on this issue.

• We live in a world of Citizens United, in which both individuals and corporations can spend unlimited amounts of money on issue campaigns. How would that impact the elections in Santa Monica that would be required by the provisions of this initiative?

• Does the voter requirement make the process more democratic or less; does it create new problems?

• Is a small group of proponents and a lawyer constructing a ballot measure with no outreach or community process more transparent or more democratic than our current process?

Section XIV: JUDICIAL ENFORCEMENT OR LEGAL DEFENSE

The proponents of this initiative shall have the right to maintain an action for equitable relief to restrain any violation of this initiative, to enforce the duties imposed on the City by this initiative, or to defend the initiative in the event of a legal challenge to the initiative after it is approved by the voters.

What does this mean relative to the current authority of the city council? Does it give standing to the two proponents to defend the initiative in court in the event of a legal challenge if it is approved by the voters?

Additional Questions not Included in Original Study Document

The answer is unclear.

Footnotes

[1] http://articles.latimes.com/1991-01-10/news/we-11255_1_santa-monica

[2] https://www.huduser.gov/portal/publications/Redevelopment_WhitePaper.pdf