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Another OC City Considers Vesting Zoning Power in Voters

As residents of one of the nation's oldest master-planned cities, Mission Viejo voters will be asked, essentially, to decide whether the city's planners got it right the first time.

Measure D, billed by its backers as the "Right to Vote Amendment," would update the city's general plan to require all projects seeking a "major amendment of planning policy documents" to not only go through the city's existing approvals process but also receive final approval via a popular vote. The measure is intended, say backers, to provide an extra layer of protection against projects that might be inconsistent with or detrimental to the city's character.

"The uses that were designated were intended to provide an economically sustaining community…..with the right balance of commercial, residential, and open space," said community activist Dale Tyler, who co-authored Measure D. "Absent reasons that are compelling to change that strategy, I think we should maintain it."

Opponents see the measure as a threat to both existing and potential businesses. It would, they say, prevent businesses from expanding their facilities, assembling parcels, or undergoing any major changes without running into the hassle and expense of sponsoring a ballot measure.

"Measure D is classic ballot-box planning," said Michael Suydam, spokesperson for the South Orange County Chamber of Commerce. "We're opposed because of… the exorbitant cost that would be imposed on Chamber members in Mission Viejo who, in order to grow their business….(would have to) potentially fund a campaign to get voter approval of their expansion."

Measure D is modeled after two other growth control measures approved by Orange County cities: Yorba Linda's Measure B, which passed in 2006, and Newport Beach's 10-year-old Greenlight Initiative.

"There's concern among people throughout Orange County that this could be yet another domino that would lead to similar initiatives in other cities," said Suydam.

But proponents argue that the measure warrants no such worries. Tyler said that the measure was inspired by four proposals that have come forth in the past two decades that, he said, would have been out of place. He said that Measure D would therefore be invoked only rarely, especially because the city is nearly built-out.

"I don't see businesses over the past 15 years or so wanting to expand and needing to change the zoning to do so," said Tyler. "I don't see any possibility that Measure D is even operative for businesses wanting to expand."

Moreover, Tyler, who described himself as a "critic of ballot-box zoning," said that voter control simply adds a check to the approvals process.

"All of the practices inherent in the city decision-making process are still complied with, and only at the end, everybody says, this is a great project, we commend it to you voters, please approve it. Only then would it be placed on the ballot," said Tyler. "It seems to me the only argument for opposing it is if you trust the city council to makes these decisions and you don't trust yourself."

Regardless of the actual projects that would invoke Measure D's voting requirement, Suydam said that, as written, the measure uses a controversial definition of voting. The text of the measure refers to a "majority vote of the electorate," which could be interpreted as the entire potential electorate, not just those voters who cast ballots in a given election.

"Whether (the wording is) a mistake or whether it's intentional, the result is there's going to be confusion and likely tons of litigation," said Suydam.

Tyler said that it means nothing of the sort. "I think that's being confused deliberately," he said. "It means people who are voting: regular majority wins."

Regardless of how many people vote, opponents also say that Measure D could end up giving veto power to the state. Suydam said that Measure D could be interpreted such that it cedes planning power to the state because of the clause "Nothing in this ordinance shall be applied to preclude City compliance with housing regulations under State law." Suydam said that some opponents read that statement as an invitation to the state to impose affordable housing on the city.

"I believe they are misinterpreting that clause," said Tyler. "The clause simply states that nothing should preclude compliance with state law. That's almost an obvious statement. There's no saying that the state can come in and do whatever it wants."

Ultimately, opponents of Measure D argue that it is simply unnecessary, since none of the four projects that Tyler cited as being troubling ever came to fruition.

"You could argue that the existing process actually did its job," said Suydam.

Contacts:

Michael Suydam, South Orange County Chamber of Commerce, (949) 635-5800

OC Vote: Official Text of Measure D (PDF)

 

 

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