Court may wipe out Measure E victory, keep the Midway District’s 30-foot height limit in place
By Jennifer Van Grove, Dec 3, 2021

Judge tentatively rules that the city of San Diego should have studied the environmental impacts of taller buildings before placing Measure E on the November 2020 ballot.

A San Diego Superior Court judge has signaled that she may invalidate a voter-approved ballot measure that sought to strike the Midway District from the city’s coastal zone, remove the 30-foot building height limit and serve as a catalyst for neighborhood revitalization.

Thursday,Superior Court Judge Katherine Bacal issued a tentative ruling, agreeing with petitioner Save Our Access that the city should be barred from implementing Measure E. The city, she wrote, improperly placed the measure on the November 2020 ballot because it did not study the environmental impacts of taller buildings. In a Friday afternoon hearing, Bacal considered the city’s rebuttal but did not make a final determination.

“I think the judge understands the case very well,” Everett DeLano III, a lawyer representing Save Our Access, told the Union-Tribune after the hearing. “I feel very good that the judge is getting what we’ve been saying, and that indeed, at the end of the day, (the city) should have done an environmental review before they went down this path.”

A spokeswoman for the City Attorney’s Office said that the office does not comment on tentative rulings.

Last year, San Diego voters passed Measure E, an ordinance that changes the definition of the coastal zone in the city’s municipal code, as defined by Proposition D in 1972, to exclude what’s known as the Midway-Pacific Highway Community Plan area. The approval seemingly paved the way for buildings taller than 30 feet in the 1,324-acre area sandwiched between the San Diego River and the airport that includes the city’s sports arena holdings.

However, the legal challenge from Save Our Access has kept the height change from going into effect. In the group’s August 2020 petition for a writ of mandate, the organization contested the legality of Measure E, arguing that the city failed to study its environmental impacts, as required by the California Environmental Quality Act.

The case centers around whether city planners considered the impacts of buildings higher than 30 feet when they prepared the Midway-Pacific Highway Community Plan Update. The 30-year planning document, approved in 2018, allows for major land-use changes and a population boom of 23,660 people. The plan’s associated environmental analysis did not specifically study buildings over 30 feet.

Still, Deputy City Attorney Benjamin Syz contended in court that the 2018 document sufficiently covers the environmental implications of Measure E. Planners, he said, analyzed factors such as greenhouse gas emissions, traffic and air quality in the plan’s zoning changes, which allow for increased density.

“We analyzed land use on a level that assumed full build-out (of the community plan update),” Syz told the judge. “Every subject area has been analyzed with the assumption that the height limit did not exist.”

Thursday’s preliminary decision sided with Save Our Access.

In her tentative ruling, Judge Bacal zeroed in on potential visual impacts of Measure E, highlighting language used in the community plan’s environmental review, or what’s called the program EIR.

“The program EIR’s use of the language ‘existing’ framework and that it would ‘blend with’ the ‘established’ height regulations show (planners) considered the existing limitations, and not the maximum structure heights mandated by the proposed base zones if the 30-foot limitations were removed,” she wrote.

Friday in court, the judge did not appear to be swayed from her position, but said she would take the matter under submission.

“I should be issuing the ruling very shortly,” she said.

The potential decision, which could be challenged on appeal, has unknown implications for the 48 acres of land that the city owns around Pechanga Arena. Friday, the city will close the books on the first phase of a second solicitation process in which at least five teams are expected to respond.

Although applicants were made aware of the pending litigation, some of their conceptual proposals envision housing and commercial buildings, and even new arenas, that stretch well above 30 feet.

“I’m shattered. Our community has been looking forward to today with hope and optimism around the sports arena site bids coming in, and this ruling has completely upended all of that,” said Dike Anyiwo, who is the vice chair of the community planning group and lives in the Midway District. “I cannot fathom what outcome the proponents of this lawsuit were seeking to achieve by undermining the very clear direction that 56.56 percent of voters set when Measure E was contested last November.”

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