Is a Ballot Initiative Required For Re-Zoning of Target?

City Staff Gives an Implausible Answer That Warrants Scrutiny and Criticism – 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.”

When asked during the council’s discussion Tuesday night, Katherine Hess 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.”

Except for one problem – the Rezone represented by Exhibit C to Ordinance 2259 is on the ballot.  In Section 5 (Permitted Uses), the size specifications are laid out in explicit and specific detail.  That includes size specifications for apparel stores, shoe stores, restaurants, etc.  These are specific permitted uses for Pad Buildings A, B, C, and D.

For instance, Section 5 of Exhibit C includes provisions that: “Community and regional retail stores, such as appliances, department stores, general merchandise, housewares, home furnishings, home decorating, linen, fabrics, craft, hobby, office furniture and supplies, electronics, telecommunications retail, sporting goods, optical retail, party supply, no less than 10,000 and up to a maximum of 30,000 square feet per individual use.”

Further, it sets “apparel stores between 8,000 and 30,000 square feet per individual use” and shoe stores are to be smaller.

These are among many very specific provisions within Exhibit C.

In addition, there are conditional uses which include maximum and minimum size specifications for other uses.

The bottom line is that Katherine Hess and, indeed, city staff are being very disingenuous when they say, “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.”

I mean, technically speaking, if you are merely reading the 63 words that were on the ballot, she is correct.  But that ignores the fact that the ballot specifies the ordinance 2259 and Exhibits A, B, C and D which do contain specific size limitations.

Ms. Hess went on to argue on Tuesday, “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.”

Katherine Hess is thus making two different arguments.

The first argument is that these changes were essentially not in the 63 words that were specifically placed on the ballot.  This argument is actually completely disingenuous.

The issue came before first the Planning Commission and then the Davis City Council because of the zoning and developer’s agreement needing to be amended.  Those numbers were set by the Ordinance and Exhibits that were listed on the ballot.  To argue they were not on the ballot is basically a lie.

There is a reason why the ballot language included “including a General Plan Amendment (Ordinance 2259, Exhibit A, Specific Plan Amendment (Exhibit B), Rezone (Exhibit C), and Development Agreement (Exhibit. D)).”  Those were placed for voter approval.

So that part of the argument is completely deceptive, and Katherine Hess deserves to be called out for placing that argument in the staff report and before the council.

So, having established that those numbers were set in the ordinance and developer’s agreement and those were placed before the voters, the question turns to where the city has a stronger case, and that is the argument that there is no provision by which the city has to go back to the voters for changes.

That is a tough call, and it leads to questions about the water ballot as well.  On the water ballot, the voters are being asked to give the council authorization to proceed with the water project, given the rates are to be approved under a Prop 218 process.

In the case of the water initiative, the council wanted the ability to be able to get permission from the voters to proceed while granting the voters the authority to block the project, but still leaving leeway to negotiate.

There, clearly, the council could change the terms of the agreement so long as Proposition 218’s approval of water rates is granted.  The only real provisions within the ordinance are 12 million gallons per day, the rough cost, and the surface water project with Woodland.

In the case of Target, they placed ratification for approval of specific ordinances and now they want the ability to be able to change those terms and conditions without another ballot measure.

While I am still not clear from a legal perspective whether the city does or does not have to put the matter on the ballot, there is a critical point here that should be made.  Target was a huge controversy six years ago and part of the negotiations were the sizes of the stores on the pad.

The downtown was concerned about the impact of competing stores at Target.  Neighborhood shopping centers had their own concerns.

The 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.  It is clear that they will not get a lot of what Michael Bisch asked for on the dais – it is unclear what that means to the agreement.

However, council needs to be far more concerned about the impact on neighborhood shopping centers then they have been.  They need to take another look at what the impact would be.

Just because no one has come forward to talk about these issues (part of that is due to the fact that many of the owners of such centers are out-of-town businesses), doesn’t mean that it will not have an impact on them.

I am concerned when a councilmember tells me that since there were no complaints that came forward from people or groups, they considered this either a non-issue or felt it would not be a problem.

The idea of governance by complaint of the citizens is a bit unsettling.  The idea that the council takes so much of their cues from public correspondence is frankly a bit troubling.

It seemed on Tuesday that the public good was steamrolled by the influence of two powerful interests.  It would behoove the council, whether they believe there is a vote requirement here or not, to reexamine the impact on our neighborhood shopping centers.

—David M. Greenwald reporting

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