A judge sidelined San Diego’s attempt to revitalize the Midway District.
By Jennifer Van Grove, Dec 17, 2021

San Diego is responding to a damaging court ruling with two approaches in an effort to keep the sports arena site redevelopment process alive.

San Diego will challenge a court order invalidating a voter-approved ballot measure that sought to ease building height restrictions in the Midway District — while simultaneously putting together a backup plan.

Mayor Todd Gloria said Friday that he has directed staff to begin preparing an environmental impact report that studies taller buildings in the 1,324-acre region in case a second vote is needed. The work will take place as the City Attorney’s Office also appeals San Diego Superior Court Judge Katherine Bacal’s ruling to invalidate Measure E.

“This analysis can move forward with no impact on the legal appeal of the ruling,” the mayor said in a statement. “My obligation is to fulfill the will of the people, and San Diegans voted by a sizable margin to eliminate the 30-foot coastal height limit in the Midway planning area. The ability to build over 30 feet is critical to redeveloping the city’s sports arena property, which will add thousands of new homes to help address our housing crisis — and which is key to revitalizing a neighborhood that’s waited decades for transformation.”

The appeal process will likely take “well over a year,” so the additional analysis could pave the way for a re-vote on the measure in 2022, the Mayor’s Office said in a press release.

Currently, five development teams are vying for a long-term ground lease and are proposing dense projects with apartment buildings that tower above the 30-foot restriction. The competition, which is still in the early stages, marks a repeat effort to offload the parcels after the state of California said the first bidding process was in violation of the Surplus Land Act.

Judge Bacal seemingly hamstrung the effort when she invalidated Measure E last week. The ordinance, approved by 57 of voters in November 2020, sought to strike the region from the coastal zone and clear the way for buildings over 30 feet.

San Diego should have studied the environmental impacts of taller buildings before presenting the initiative to voters, as required by the California Environmental Quality Act, the judge said, siding with petitioner Save Our Access. A writ of mandate barring the city from implementing Measure E is expected to be finalized next month and will spell out how the city can potentially rectify the matter.

San Diego planners, at the mayor’s direction, will now specifically assess the environmental impacts associated with eliminating the 30-foot height limit — even while the City Attorney’s Office holds firm in court. The city maintains that the Midway District’s community planning documents, approved in 2018, already weighed the impacts of taller buildings when it studied the plan’s zoning changes.

Both approaches are time-consuming, but the two-pronged response is likely intended to provide would-be sports arena site developers with enough confidence to continue forward.

“You’re talking about many months, maybe even a couple of years, before you get a decision (on appeal). However that comes out, presumably the losing party would file a further appeal to the state supreme court,” said Cary Lowe, who is a retired land-use lawyer and urban planner. “In the meantime, the city can certainly do the (environmental analysis) faster than that.”

Sports arena site bidders are currently in a 90-day negotiation period with the city and are expected to present their proposals to City Council members next year.

“It’s so early in the process that I don’t think (the ruling) has a significant impact on selecting a partner and then ultimately negotiating a business deal,” said Penny Maus, who is the city’s director of real estate and airport management

Once selected, the winning group will still need to hammer out lease and development terms with the city. Those talks could take anywhere from six to 18 months based on previous real estate deals, giving the city some wiggle room as it works to resolve the building-height problem.

“It’s a little disheartening that almost on the exact day that we were filing our final submittals the court came down against the measure,” said Marco Gonzalez, who is the cofounder of Coast Law Group and is advising the HomeTownSD team. “For a process that’s had so much uncertainty associated with it, this just adds another layer of uncertainty and risk. However, I know our team, and likely others, are fully committed to finding a solution that both respects the required process and allows for a really good project to go in at that site.”

Environmental reviews are often multiyear processes, although the city will seek to expedite the matter.

Typically, the CEQA process starts with a preliminary analysis called an initial study that identifies potentially significant impacts, and determines whether or not an in-depth environmental impact report is required. If the formal analysis is necessary, then there is a notice of preparation that kicks off a scoping period in which the public and various agencies can weigh in on the parameters for review. The process continues with months of analysis and a draft report that is reviewed by the public and government agencies before a final assessment is certified by a government agency — in this case San Diego’s City Council.

City planners, depending on how the writ of mandate is worded, may only have to study the visual impacts of buildings of over 30 feet, as opposed to looking at a broader range of impacts, such as air quality, noise and traffic. Presumably, they can also lean on the environmental impact report prepared for the Midway District’s community plan update to advance the timeline. That report, or what’s known as a program EIR, studied the addition of more than 10,000 residential units in the Midway District and estimated a population boom of 23,660 new residents.

As of the last count in 2015, the Midway District is home to just 1,935 residential units and has a total population of 4,600 people, .

A best-case scenario could see the environmental work completed in the next few months and the measure returned to voters on the November 2022 ballot.

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