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San Diego is sued again over ballot measure to lift Midway District height limit

Measure C will ask San Diego voters in November to exempt the Midway District from the 30-foot coastal building height limit.
Measure C will ask San Diego voters in November to exempt the Midway District from the city’s 30-foot coastal building height limit.
(Nelvin C. Cepeda / The San Diego Union-Tribune)

The repeat proposal is being challenged by the same group that got the first ordinance invalidated in court.

San Diego’s repeat ballot proposal to lift the 30-foot coastal building height limit in the Midway District — and pave the way for redevelopment of the city’s 48-acre sports arena property — is being challenged in court by the same group that got the first ordinance invalidated.

The environmental nonprofit Save Our Access filed a civil suit against the city Aug. 31 in San Diego County Superior Court contesting the legality of what’s now known as Measure C.

The petition for a writ of mandate seeks to block the city from taking additional action until it has sufficiently studied all the environmental impacts associated with taller buildings — as opposed to only analyzing impacted views — in the 1,324-acre area that includes the sports arena land.

San Diego City Councilwoman Jennifer Campbell tried to ameliorate fears raised during the Ocean Beach Town Council’s latest meeting that the 30-foot height limit for coastal structures could be abandoned because of a major redevelopment plan for the city’s sports arena property in the Midway District.

Most likely, the matter will be considered after the Nov. 8 election. The case has been assigned to Judge Katherine Bacal, who last December ruled in favor of Save Our Access in its lawsuit related to the previous ballot proposal, Measure E, which was approved by 57 percent of voters in November 2020.

“Judge Katherine Bacal ruled that the city failed to do an updated environmental impact report prior to placing Measure E ... on the ballot,” Save Our Access founder John McNab said in a statement. “In her ruling she stated, ‘Other significant environmental impacts to traffic/transportation, air quality, water quality, housing, greenhouse gas emissions’ would need to be studied. The city ignored her direction and focused on views. Save Our Access ... filed another legal action to force the city to comply with the law.”

A representative of the city attorney’s office said the office had not yet been served and could not comment on the new suit.

“This group obviously recognizes they’re woefully out of step with most San Diegans, who see the revitalization of the Midway neighborhood as a prime opportunity to create much-needed affordable housing,” said Rachel Laing, communications director for Mayor Todd Gloria. Developers’ proposals for the sports arena property include affordable housing as well as a new arena and more.

“It’s unfortunate but not surprising that they are resorting to efforts to block the measure from appearing on the ballot, because they know it will prevail with the electorate again. We’re confident in the thorough environmental review conducted by city planners and hope the judge will see through this desperate attempt to thwart the will of the voters.”

The Midway District, which is north of San Diego International Airport and south of Mission Bay, is subject to a 1972 referendum on buildings over 30 feet in the coastal zone, what is now protected territory extending from the water to Interstate 5 in city limits.

In 2020, San Diego sought to change the city’s municipal code to exclude the Midway District from the coastal zone. The goal of Measure E was to catalyze developer investment in an area largely defined by its supersized streets, suburban-style shopping centers and older warehouses — starting with the city’s sports arena property.

Midway District map

But Bacal ruled last year that the ordinance was illegal, saying the city should have studied the environmental impacts of taller buildings before putting the measure in front of voters. The city attorney’s office is appealing that ruling.

The San Diego City Council has since placed a do-over measure, Measure C, on the November 2022 ballot.

The city believes Measure C is on solid legal footing because planners have studied the visual impacts of buildings up to 100 feet tall, as permitted by the different zones in the Midway District. The supplemental environmental impact report studied 10 view corridors that look into the Midway area and determined there would be significant and unavoidable impacts to views and neighborhood character with the removal of the coastal height limit.

The addendum, which was certified by council members in July, did not analyze the potential effects of taller buildings on other environmental factors, such as traffic, noise and air quality. City planners who worked on the supplemental report said those factors were sufficiently reviewed in the 2018 EIR prepared for the Midway District’s updated community plan. The 30-year community plan allows for major land-use changes and a population boom of 23,660 people but does not explicitly contemplate taller buildings.

“This is déjà vu all over again. I think we’re going to be right back in the same spot,” said Everett DeLano, a lawyer representing Save Our Access. “The court rejected the notion in the last case that the city’s adoption of the [environmental impact report] for [the Midway-Pacific Highway Community Plan] had ever considered anything having to do with the height limit.”

The new lawsuit contends that Measure C is in violation of the California Environmental Quality Act because the city did not properly study all the effects associated with removing the height limit. The supplemental report on visual impacts is faulty and deficient in scope, the suit alleges, failing to address, among other things, traffic and transportation, biological resources, and water quality and supply.

Save Our Access telegraphed its intent to challenge the new ballot measure in a July 25 letter to council members. In the letter, DeLano warned that the supplemental report is lacking, particularly regarding the impacts of greenhouse gas emissions.

He also pointed to conflicting positions by the city that could backfire in court. The city attorney’s appeal of the previous ruling argues that no environmental review of taller buildings is necessary, whereas city planners were compelled to analyze visual impacts for the new measure, DeLano noted.

The city is taking a “dichotomy of positions” that reflect “a fundamental flaw and a bury-your-head-in-the-sand approach,” DeLano wrote.

But Dike Anyiwo, who chairs the Midway-Pacific Highway Community Planning Group, said the civil action amounts to a blatant attempt to overrule the will of voters.

“I’m disappointed but not surprised by this latest attempt to thwart our community’s revitalization,” Anyiwo said. “No amount of analysis will ever satisfy them because at the end of the day, their objective is to stop progress. Their selfishness is staggering.

“In 2020, San Diegans clearly spoke when they approved Measure E ... and I can only hope to see a similar result this time around.”

Save Our Access is joined with radio talk show host Carl DeMaio and others in the “No on Measure C” campaign, which frames the ordinance and the potential for more and taller development as an affront to beach access and creation of more public parks.


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