San Diego sued again over ballot measure to lift Midway District height limit
By Jennifer Van Grove, Sept. 1, 2022

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

Wednesday, the nonprofit environmental activist group Save Our Access filed a civil action against the city in San Diego Superior Court contesting the legality of what’s now known as Measure C.

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

Most likely, the matter will be considered after the November election. The case has been assigned to Judge Katherine Bacal, who ruled in favor of Save Our Access in the 2020 lawsuit related to the previous measure, Measure E.

“Judge Katherine Bacal ruled that the city failed to do an updated environmental impact report prior to placing Measure E ... on the ballot. 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,” Save Our Access founder John McNab said in a statement. “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 spokesperson for the city attorney’s office said the office has not been served yet and could not provide 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, who is the communications director for Mayor Todd Gloria. “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.”

North of the San Diego International Airport and south of Mission Bay, the Midway District is subject to a 1972 referendum on buildings over 30 feet in the coastal zone, or what’s 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. The ballot proposal was approved by 57 percent of voters in November 2020.
Midway District map

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

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

The city believes that the repeat proposal, Measure C, is on solid legal footing because planners have, since losing in court, 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 found 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 impact of taller buildings on other environmental factors, such as traffic, noise and air quality. Those potential impacts were sufficiently reviewed in the 2018 environmental impact report prepared for the Midway District’s updated community plan, according to the city planners who worked on the supplemental report. The 30-year community plan document 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 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 Measure C is in violation of the California Environmental Quality Act because the city did not properly study all of the impacts associated with removal of the height limit. The supplemental report on visual impacts is faulty and deficient in scope, the suit states, failing to address, among other things, traffic and transportation impacts, biological resource impacts, and water quality and supply impacts.

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

He also points to conflicting positions by the city that could backfire in court. The city attorney’s office’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, he 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.

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

“I’m disappointed but not surprised by this latest attempt to thwart our community’s revitalization. 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,” Anyiwo said. “In 2020, San Diegans clearly spoke when they approved Measure E ... and I can only hope to see a similar result this time around.”

The legal challenge also presents yet another hurdle for San Diego’s long-running effort to offload its real estate at 3220, 3240, 3250 and 3500 Sports Arena Blvd.

The city’s first attempt to dispose of the sports arena site ran afoul of the Surplus Land Act. The second effort is set to culminate later this month with the selection of a winning development team. Mayor Gloria and his real estate department are recommending Midway Rising for selection, although City Council members have the final say.

Midway Rising’s proposal calls for a total of 4,250 residential units, a brand-new 16,000-seat arena, a 200-room hotel and 20 acres of open space. The group is also proposing 250,000 square feet of commercial space concentrated in a central public plaza. The plan, however, hinges on removal of the height limit in the Midway District. If selected to redo the sports arena property, Midway Rising would likely help fund the campaign in support of Measure C.

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

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