In the past few years we’ve seen a lot of land use fights spill onto the ballot: the affordable housing fee, the Barrio Logan community plan update, One Paseo, the Strawberry Fields mall initiative in Carlsbad. And we can expect to see more in 2016.
It usually works like this: A city council makes a decision on a plan or a project, then citizens or businesses unhappy with that decision collect signatures with the aim of forcing it onto the ballot, where voters could potentially overturn the decision.
That process is called a referendum – a motion to challenge something that’s already been passed. It allows citizens to approve or reject something elected officials have done. Then there’s an initiative, a similar process but one that enacts a brand new plan, law, policy or constitutional amendment that is proposed by citizens.
The citizen-led initiative process is often considered a pure form of direct democracy. There’s something empowering about the idea of a citizen being able to start a measure of his or her choice and, if he or she garners enough support, taking it to the voters.
Yet these measures are often vehicles for private interests.
“It’s very common to see hotels block a new hotel, a mall block a mall,” said Joe Matthews, author of “California Crackup: How Reform Broke the Golden State.” “Do we want our public participation to be used by one power to screw another power? Having people pick winners and losers between two malls or hotel companies – is that really what we want?”
About 60 percent of the local measures California voters weighed in on in 2015 had to do with taxes and bonds and 14 percent had to do with zoning and development, according to Ballotpedia.
Since these are the kinds of issues that regularly impact all residents of communities, they’ve tended to qualify for the ballot more than other types of local measures, said Matthews.
The only measure that qualified for the 2015 ballot in San Diego County was the referendum against the One Paseo project in Carmel Valley. But instead of going before voters, the city rescinded its approval of the development.
In 2016, we can expect San Diego voters to decide a few things, including a mall in Carlsbad and potentially a hotel tax initiative.
So as we move forward on some of these measures, let’s take a step back and look at some of the lessons we’ve learned from previous initiatives and referendums.
Money is important.
Initiatives and referendums are just as vulnerable to being financially backed by private interests as any other campaign. And their funding tends to be broad-based, which means they are mainly funded by one group.
In Carlsbad, an initiative to build a mall near the Agua Hedionda Lagoon has been sponsored entirely by Caruso Affiliated – the mall developer. Caruso spent $5.1 million on the campaign in the first nine months of 2015. Fox5 reported that the developer even paid $50,000 to other signature-gathering firms to make sure they didn’t work for the project’s opposition.
While the opposition to the project had been smaller and community-based, it recently received $75,000 from an opposing mall developer, the Westfield Corporation, after gathering enough signatures for a referendum on Caruso’s initiative. Before the donation from Westfield, the opposition group had spent about $18,000.
The initiative against the Barrio Logan Community Plan Update was funded by the shipbuilding industry, who were concerned a zoning change in the plan could eventually threaten their industry. The opposition to One Paseo, a mixed-use development in Carmel Valley, was bankrolled by the owner of a nearby shopping center, who didn’t want the competition. The signature-gathering effort to oppose the City Council’s increase in the affordable housing fee was sponsored by the business and development community.
“You should be weary when you vote for one-off, one-funder measures that are only about one project,” Matthews said.
The money involved in these efforts drove San Diego’s City Council to pass a measure in October to strengthen financial disclosure rules surrounding citizen-led initiatives.
It’s hard to tell what you’re actually signing to support.
You’ve probably heard it before, when you’re coming out of the grocery store: “Sign this petition to _________” or “Sign this petition if you want/don’t want ______.”
It’s difficult to sort out whether these claims are accurate. Signature gatherers often have to explain complex measures in the span of a few seconds or minutes.
The most recent claim we’ve been hearing from signature-gatherers is that a signature will go toward an effort to keep Comic-Con in San Diego. The petition is for a hotel tax initiative, “The Citizens’ Plan for the Responsible Management of Major Tourism and Entertainment Resources.” It was written by environmental attorney Cory Briggs and former San Diego City Councilmember Donna Frye.
KPBS dug into the validity of the claim. The initiative includes a measure that would allow hotel owners to pay a fee that would go toward expanding the Convention Center, which Comic-Con supports.
But Comic-Con sent out a statement saying, “Signature Gathering Will Not Keep Comic-Con in San Diego.”
The signature-gatherers aren’t outright lying. If the measure goes to the voters and passes, it could help Comic-Con. But they’re leaving out information.
The hotel tax initiative measure is 77 pages – short compared with other measures we’ve seen (both Caruso’s mall and One Paseo had more than 300 pages). The Citizens’ Plan campaign said the measure isn’t complex and its provisions are fully and fairly disclosed on the plan’s website. Claims that the signature-gathering explanations are unfair “assume the voters are less capable than the politicians,” according to the campaign.
“Most voters aren’t going to read all those pages to sign or vote yes or no,” said Kim Alexander, president of The California Voter Foundation, a nonprofit that works to improve the state’s election process.
Alexander said voters tend to shy away from complex measures, unless there are big ad campaigns that constantly simplify the message for them.
During the campaigns around the One Paseo project, the developer, Kilroy Realty, actually started a signature-gathering campaign aimed at blocking an opposing measure. Signature-gatherers were paid $2 per signature for a meaningless Chargers petition – the goal was simply to draw people away from signing a petition aimed at killing the project.
It’s hard to force signature-gatherers and campaigners to be straightforward and honest. Anyone who tries to challenge the validity of gathered signatures must meet a very high bar in court to show that deceptive campaigning should keep something off the ballot.
The judge ruled that yes, some of their statements were misleading, but even then, she couldn’t keep the measure off the ballot.
Initiatives can supersede other laws and regulations.
Citizen-led measures by private interest groups usually try to vote down something – a new policy, project or plan that they don’t like. But in the past year, that’s been changing.
The California Supreme Court last August ruled that if a project gets enough signatures to put it on the ballot, a city council can approve it without going to voters and without a California Environmental Quality Act review, which requires big projects to disclose their environmental impacts and reduce as many of them as possible. The decision has paved the way for companies, governments and individuals to use the initiative process proactively, to propel projects forward, rather than just blocking things they don’t like.
“You can do almost anything with our local ballot measures, even things that don’t make sense or things that seem to contradict other laws,” said Matthews. “There’s not a lot of checks on the process.”
Two proposed football stadiums in Carson and Inglewood used voter initiatives to leapfrog the environmental law, and in May, Los Angeles developer Caruso Affiliated started its own citizen-led initiative for its mall plan in Carlsbad.
Caruso gathered enough signatures to get the measure on the ballot, but the Carlsbad City Council voted to adopt the plan outright. An opposition group then started its own campaign for a referendum on the plan and managed to successfully send the measure to the ballot. The vote will be in February.
The plan wouldn’t just bypass CEQA, though. It would completely govern land-use on Caruso’s property. One of the provisions stated that as Caruso moves forward with more detailed plans for the property, the city would only be able to review them against this document that Caruso wrote itself, not against pre-existing city zoning laws, height limits, etc. Another provision says that if the city doesn’t review Caruso’s plans within 120 days, they will be automatically approved. One of the groups opposing Caruso’s project filed a lawsuit in October, alleging the initiative overreaches its power.
“There is all this language in the initiative that says, ‘City, you don’t have any power,’” said Everett DeLano, the attorney who filed the lawsuit on the group’s behalf. “There are constitutional limits on the extent of an initiative. You don’t get to take those decisions away from the public and from the city.”
There’s strategy involved.
While companies and individuals can pour money into campaigns, voters can still be unpredictable. So when people decide to invest in these measures, there are things they do to increase their chances of success.
The first is that referendums are generally easier than initiatives. Approving a referendum means voting no. And people often vote “no” as a default.
“Voters vote no unless convinced otherwise,” said Alexander. “With referendums, people have to vote yes if they don’t agree with them. And a lot of times people are voting no, no, no, thinking it’s a safe vote, not realizing that it’s repealing a measure.”
Another strategy is where you choose to sponsor an initiative.
In general, it’s easier to qualify something for the ballot in smaller cities than larger cities.
In Carlsbad, Caruso needed9,800 valid signatures – 15 percent of registered voters – to qualify its measure for the ballot. For a citywide initiative in San Diego, you would need more than 66,000 – 10 percent of registered voters(
But in big cities, you can sometimes use the large voter pool to your advantage.
For example, with the Barrio Logan community plan Update, opponents plan paid for a city-wide campaign to overturn the plan, gathering more than 52,000 signatures. According to 2010 census data, Barrio Logan itself only has a population of 4,865, meaning that most of the people who signed a referendum against the plan weren’t from the community.