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City Council
Report |
City Council Meeting: May 13,
2014
Agenda Item: 8-A
To: Mayor and City Council
From: Marsha Jones Moutrie, City Attorney
Subject: Hines Development Agreement – Decision
on Referendum
Recommended Action
Staff recommends that the City Council ("Council")
hold a public hearing to reconsider and to determine whether to repeal
Ordinance No. 2454 (the Hines Development Agreement) or to submit the question
of repealing the ordinance to the voters.
If Council sends the question to the voters, staff recommends that the
measure be placed on the ballot of the November general election and that
Council direct staff to prepare the necessary resolutions.
Executive Summary
On February 11, 2014, Council adopted
Ordinance No. 2454 which is a development agreement with Hines 26th
Street LLC authorizing the construction of a large, predominantly commercial
project at 1681 26th Street.
On March 11, 2014, a referendum petition was filed with the City Clerk ("Clerk)
protesting adoption of the ordinance. On
April 22, 2014, the Clerk reported to
the Council that the measure had qualified for the ballot. Because it qualified, the California Elections
Code requires that the Council either repeal the ordinance or submit it to the
voters, either at the next general election or at a special election.
If Council opts to submit
the matter to the voters, staff recommends directing staff to prepare the
resolutions necessary to place the matter on the ballot for the next general
municipal election which is scheduled for November 4, 2014. Currently staff anticipates coming to the
Council in June 2014, with the appropriate resolutions that will set that
election. This item will be added to
those resolutions if the Council decides to place the referendum on the
November ballot. This approach would conserve
staff time and public resources by saving the City the cost of a special
election. That cost is estimated at approximately
$200,000, while adding the measure to the November ballot would cost
approximately $5,000.
Background
On April 11th of
this year, Council adopted as Ordinance No. 2454, a development agreement with
Hines 26th St. LLC for the construction of a 765,095 square foot,
mixed use project at 1681 26th Street. The predominant use of the project is
creative office space (374,434 square feet).
The project also includes 473 rental housing units, 25 artist work/live
units, restaurant space (15,500 square feet), retail space (13,891 square
feet), various publicly accessible outdoor spaces, and public streets that
would run north-south through the project site.
On March 11, 2014 opponents
of the project filed a referendum petition with the City Clerk. Signatures were gathered, and they were verified
by the County Registrar. On April 22, 2014, the Clerk
reported to Council that petitions had been signed by more than the requisite 10%
of the City's registered voters. Thus,
the referendum qualified for the ballot.
Discussion
The Council's choices are established and constrained by
state law. Elections Code section 9237 provides
that, once a referendum petition qualifies, "the effective date of the
ordinance shall be suspended and the legislative body shall reconsider the
ordinance." Elections Code section
9241 provides, in pertinent part, that "[i]f the legislative body does not
entirely repeal the ordinance against which the petition is filed, the
legislative body shall submit the ordinance to the voters, either at the next
regular municipal election … or at a special election called for the purpose,
not less than 88 days after the order of the legislative body." If a challenged ordinance goes to the voters,
the Elections Code provides that it shall not be effective until approved by a
majority of those voting.
The Elections Code also establishes certain consequences of
repeal. It provides that, if the
legislative body repeals the ordinance or if the voters vote against it,
"the ordinance shall not again be enacted by the legislative body for a
period of one year after the date of its repeal or disapproval." Section 9241.
This provision of state law precludes adopting, within one year, another
ordinance which is "essentially the same" as the challenged
ordinance. Lindelli v. Town of San Anselmo, 4 Cal.Rptr.3d 453
(2003). In deciding whether the
subsequent ordinance is essentially the same or different, the courts focus on
the features that gave rise to the popular objection. Id.
Thus, under state
law, the Council's immediate options are to: (1) reconsider and repeal the
ordinance in its entirety; (2) if the ordinance is not entirely repealed, put
the question of repeal on the ballot for the November general election; or (3) call
a special election to occur between August 10, 2014 and November 4, 2014.
Staff recommends
against the third alternative. It would
require the City to bear the costs of a stand-alone election. And, this public expense seems unwarranted
given the proximity of the general election.
As between the first
two alternatives -- repealing the ordinance or submitting it to the voters at
the general election – either process will fully and finally resolve the issue
of whether the ordinance should be repealed.
If Council favors a prompt resolution, then it may wish to decide the
matter itself. On the other hand,
Council may favor an election as the preferred means of settling a dispute that
has divided the community.
If Council opts to send the matter to the voters, staff recommends
a Council direction to prepare the necessary resolutions to place the matter on
the ballot.
Next Steps
If Council places the issue on the November ballot, staff will return
in June with election resolutions, including the language necessary to place
repeal of Ordinance No. 2454 before the voters.
If Council decides to call a special election, staff will also prepare
the necessary resolutions, though perhaps sooner.
Financial Impacts & Budget Actions
There is no immediate
financial impact or budget action necessary as a result of the recommended
action. Staff will return to Council
with estimates for placing the measure on a Special Election or Regular
Election ballot. At this time, it
appears that a Special Election would cost approximately $200,000; adding this
measure to the November 4, 2014, Regular Election ballot would cost
approximately $5,000.
Prepared by: Marsha Jones Moutrie, City Attorney
Approved: |
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Forwarded to Council: |
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Marsha Jones Moutrie, City Attorney |
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Rod Gould City Manager |