Written by David Greenwald Tuesday, 11 December 2012 06:56
The City of Davis, pressed to weigh in on the issue as to whether they would be required to go back to the voters for changes in the Target pad zoning that was placed on the ballot, argued that it was not necessary. Unlike a Measure J vote, this was simply a voter ratification of the agreement.
They cited, as evidence, the impartial analysis of Measure K, provided by Davis City Attorney Harriet Steiner on August 11, 2006 in which she closed her argument, "Once ratified by the voters, future amendments to Ordinance 2559, if any, would not require voter approval."
However, critics were quick to note that, far from evidence, this statement amounted to the legal opinion of the city attorney. Indeed, the city provided no evidence of a legal brief and, in her opinion, Ms. Steiner cited no case law or state statutes to bolster her opinion.
Given the fact that the city is maintaining the same view today as it did in 2006, all this proves is that Ms. Steiner had the same opinion in August of 2006 as she does in December of 2012.
In 2006, the voters of Davis narrowly approved the ballot measure to ratify the city council's approval of the Target project, through Measure K.
The language on the ballot was as follows: "Shall the City Council's approval of Ordinance 2259, approving the Second Street Crossing Project, a retail development of approximately 183,000 square feet, including a General Merchandise Store of 137,000 square feet and other retail buildings totaling 46,000 square feet, including a General Plan Amendment (Ordinance 2259, Exhibit A, Specific Plan Amendment (Exhibit B), Rezone (Exhibit C), and Development Agreement (Exhibit. D)) be ratified?"
City Staff argues that there is no required voter approval for the city to make changes to the project. They argue, "The ballot language was written to allow ratification or rejection of the project, and not to establish an ongoing requirement for ballot approval of any subsequent changes. This is in contrast to Measure J/R, which explicitly requires voter approval for significant changes to approved projects or to the ordinance itself."
However, staff goes further, "Nonetheless, the application does not change any of the parameters that were approved with the above ballot language in 2006."
City Staffer Katherine Hess, at the last council meeting, read the ballot language and argued, "When it comes to what was actually on the ballot the recommended changes to the store sizes do not go counter to any of the numbers or the description that was on the ballot."
That is certainly one interpretation, however, the ballot language refers to a number of exhibits which actually specify the prescribed zoning for the project. As such, while the 63 words that were on the ballot do not reference zoning size, the referenced documents do.
Ms. Hess went on to argue, "The action on the ballot was 'is the council's approval ratified.' Unlike Measure J/Measure R which say no future changes can be allowed without going back to the ballot, this was just a thumbs up or thumbs down at that time when the action was taken."
This is basically Harriet Steiner's position, but that does not mean that the city is correct about this.
The Vanguard is far from convinced either way here. Target was a huge controversy six years ago and part of the negotiations were the sizes of the stores on the pads.
The downtown was concerned about the impact of competing stores at Target. Neighborhood shopping centers had their own concerns.
One critical question that might be asked is whether, given the closeness of the election, these sorts of side agreements were crucial to the victory of Measure K. If they were, and if Measure K would not have passed without these side agreements about zoning size, that would bolster the argument that more care should be taken about changes to the zoning.
The initial reaction was telling here. Davis Downtown was immediately opposed to the project, believing that the changes to the zoning would put the pads in competition with downtown businesses.
However, at the last meeting, Davis Downtown seemed to signal their willingness to allow the changes - if they were granted a number of other considerations, including the parking changes and the Davis Gateway project support.
---David M. Greenwald reporting