Friday, October 9, 2009

Why I'm Asking You to Vote No on Measure B

Most of you probably already know that I’m opposed to Measure B, the so-called view protection initiative on the November ballot in Ventura. I believe it’s unnecessary, overly cumbersome, probably unlawful, and -- most important – undemocratic.

As the campaign for Measure B has unfolded, I have come to have new concerns about Measure B and how it is likely to be implemented by Ventura Citizens Organized for Responsible Development (VCORD) if it passes.

For one thing, it’s very sloppily written – and apparently inadvertently leaves whole sections of the city off the View Resources Board.

If you live Downtown, or south of the college, or near Buena High School, your neighborhood cannot be represented on this new board.

Remember that once the voters have approved this initiative, neither VCORD nor the City Council can fix these problems because it must be implemented word-for-word. So whatever mistakes Measure B contains, we’re stuck with them.

Also, in recent weeks, VCORD spokespeople have focused more and more on the narrow issue of building heights as the “magic bullet” that will solve view problems – even though previously they had stated the solution should be up to each neighborhood.

They’ve also gotten more aggressive in stating what the new View Resources Board “will do” if Measure B passes. It seems to me that this is at odds with their oft-stated promise to appoint a broad range of community members from different neighborhoods and then step away from the process.

Given what I’ve been hearing lately, I can’t for the life of me understand why VCORD didn’t just write an initiative permanently restricting building heights along the commercial corridors to two stories – since that seems to be their goal. Then we could have had a straight-up discussion about whether that’s a good policy or not, instead of complicated debate over whether Measure B is too convoluted, unlawful, or undemocratic to work.

In explaining my opposition to Measure B, let me first explain what the initiative does, then talk about why I am opposed to it in concept, and finally further explain my concerns about VCORD.


Measure B is an initiative that does three things:

First, it places a moratorium on all buildings over 26 feet high for up to two years in most parts of Ventura. Many business areas are exempt, including parts of Downtown, the area around Community Memorial Hospital, the Pacific View Mall, the lower part of Johnson Drive, the Victoria Corridor, and most areas on the south side of the freeway, including the auto center and the industrial park.

Second, it creates a View Resources Board (VRB) of 23 members and charges the board with drafting a view protection ordinance within a year. Of the 23 members, 20 would be appointed by VCORD (18 from neighborhoods and 2 from business groups) and 3 would be appointed by the City Council.

Third, it creates a process by which the height moratorium can be lifted prior to two years under certain circumstances. The View Resources Board recommends a view protection ordinance to the City Council. If the City Council does not approve the ordinance as recommended, the Council must forward suggested changes to the View Resources Board. If the VRB accepts these changes and the Council approves them, the moratorium is lifted. If the Council does not adopt the ordinance, VRB members have the right to place the measure on the ballot as an initiative and, if voters approve it, the moratorium is lifted.


I have opposed Measure B from the beginning because I believe it’s unlawful and undemocratic – and the reasons it’s unlawful are the same reasons it’s undemocratic.

First, VCORD – a private political action committee – does not have the power to appoint a city board.

Under the City Charter, the voters delegated that authority only to their elected representatives on the City Council. This makes sense because only the City Council is accountable to the voters. You wouldn’t want to appoint a board to look at pension reform and have the members appointed by the firefighters PAC; nor would you want to appoint a board to look at reforming the planning process and have the members appointed by the Building Industry Association PAC. There’s no accountability.

VCORD has countered this argument by saying that the View Resources Board isn’t really a city board, even though it’s a board created by the city’s voters in an election. Rather, it’s a “community board”.

To me, this defies credibility. If VCORD wanted to appoint a community board to draft a view ordinance, they don’t need the voters to do it. They could just do it themselves.

The very fact that VCORD wants the voters to create the VRB suggests to me that it IS a city board, because through the initiative process the only thing voters have the power to do is enact city legislation.

Second, the process by which the moratorium can be lifted early impermissibly grants some legislative power to the VRB and hence to VCORD as well.

There are two things that voters cannot do in an initiative. One is give away their own legislative power to a private entity. The second is to direct that legislation be enacted by the elected officials. Measure B does both these things even though they are prohibited by the state constitution.

VCORD has quite rightly pointed out that the view protection ordinance won’t actually go into effect unless either the City Council or the voters approve it. Nevertheless, I believe Measure B gives the VRB – and, hence, VCORD – the power to interfere with the legislative process, which under our state constitution belongs only to the voters and their elected representatives. Here’s why:

The City Council can lift the moratorium in less than two years by approving a view protection ordinance. But the moratorium is lifted ONLY if the City Council adopts the ordinance approved by the View Resources Board. I believe this ties the hands of the City Council in violation of the constitution.

The only people who have the right to interfere with your elect representatives to enact legislation are you, the voters. Measure B gives the City Council the power to lift the moratorium -- but only with the permission of an unelected board that is appointed by a political action committee. That’s undemocratic.

For that matter, the VRB also appears to have veto power over the ability of the voters themselves to lift the moratorium in less than two years.

Although it’s not completely clear in the initiative language, it would appear that the voters, like the City Council, can lift the moratorium early by enacting a view protection ordinance – but only the ordinance approved by the VRB, which again is unelected and appointed not by your elected officials but by VCORD.

I also believe the provision that allows us on the City Council to lift the moratorium in less than two years violates the constitutional provision requiring that voters cannot direct that legislation be enacted. The idea behind this provision is that voters need to actually see legislation before authorizing its approval.

Under Measure B, if we on the City Council agree with the VCORD-controlled View Resources Board about what should be in the view ordinance, it gets approved and the moratorium gets lifted – all without the voters ever voting on it. That too is undemocratic – to say nothing of unconstitutional. In this case, the VCORD initiative tries to give us on the City Council power that, under the constitution, we don’t have.

More to the point, if you don’t trust the City Council on the view question, why would you vote for something that takes away your right to vote on the view ordinance and, instead, turns that power over to the combination of a board you didn’t vote for and a City Council you don’t like?

Third, the composition of the View Resources Board is inherently undemocratic.

The VRB would have 23 members. Three would be city representatives appointed by the City Council. Two would be business representatives (Chamber and Visitor Bureau) appointed by VCORD. The other 18 would be neighborhood representatives appointed by VCORD. But 14 of those neighborhood representatives would be appointed from areas west of Victoria. Only 4 would be from areas east of Victoria, where half the population of the city lives. As an example, the Westside – which has a population of less than 10,000 people – would get 3 representatives, while East Ventura – with a population of more than 50,000 people – would get 4 representatives. That’s undemocratic.

But it gets worse. Some neighborhoods have no representation at all. Downtown has no representatives. Neither do some parts of Midtown – especially the Preble neighborhood south of Main Street toward Channel Drive east of Seaward; as well as the San Pablo neighborhood around Telegraph and Mills. And the entire neighborhood south of the college – from Mills all the way to Victoria, including the areas around Elmhurst Elementary and Buena High – have no representatives. Whether purposely or accidental, they have been left out.

And VCORD does not have the discretion to appoint people from these areas. The fact of the matter is that the initiative designates board representatives from other neighborhoods, meaning people from these neighborhoods cannot be appointed. This may be simply be an oversight; but once Measure B passes, VCORD cannot correct its own mistake.

It’s also worth noting that the process does not guarantee representation to any other neighborhood group besides VCORD. If, say, the Midtown Ventura Community Council or the Westside Community Council wants a seat on the board, they must ask VCORD – and if VCORD says no, there’s nothing anybody can do about it.

Finally, significant drafting errors and other provisions will make Measure B difficult to implement.

When you adopt an initiative, you adopt the whole thing. You can’t pick and choose. So you’d better be sure you like the whole thing.

Measure B has a number of drafting errors both large and small that concern me. If it’s riddled with drafting errors, what other bombshells – intentional or unintentional – are hidden in the text?

To give just a few small examples:

-- Fir Street is incorrectly identified as Fir Drive.
-- The downtown exemption area is described as being bounded on the north by Poli and the west by Ventura Avenue. But, of course, Poli and the Avenue don’t meet.
-- There’s a math error in describing the number of VRB members appointed by VCORD.
-- In one section, City Council is accidentally spelled City Counsel – as in attorney. Does this man that a view ordinance can be adopted by our City Attorney (our counsel), nor our elected City Council?

Admittedly, those are small. But there are larger concerns about vague drafting.

As I said before, whether by accident or on purpose, significant chunks of the city – including Downtown and the neighborhoods south of the college around Elmhurst Elementary and Buena High – have no representation whatsoever.

Also, it’s not clear whether the VRB members – if they want to put the view protection ordinance on the ballot – must gather signatures like any other initiative proponents. VCORD says yes, they must gather signatures; but it’s not clear from the text. What VCORD intends to do is, unfortunately, not what you are voting on. You’re voting on what the text says and that’s not clear.


Like most people in town, I take in on faith that VCORD’s initiative proponents have no hidden agenda and simply want to do they think is best for the community. I have known both Diane Underhill and Camille Harris for a long time – we all live in the same Midtown neighborhood – and I know they are caring people with big hearts.

During the campaign, however, I have become more concerned about how VCORD will actually wield its newfound power. My concern falls into three categories.

First, VCORD representatives are getting more bold in suggesting that their agenda is to lower building heights, not empower neighborhoods.

From the beginning, I have believed VCORD when they say their objective is to bring more – and more diverse – neighborhood voices into our community discussion about how to protect views. VCORD representatives have stated that different neighborhoods might have different solutions to the view question, and so therefore many different neighborhood representatives should be involved. This makes sense to me.

Indeed, the city’s View Task Force – which Diane Underhill served on – quickly came to the same conclusion earlier this year. Even one-story buildings can often block views, especially along Main and Thompson. So lowering building heights won’t necessarily protect views; a wide range of techniques, including setbacks and variation in heights, must be employed.

During the campaign, however, VCORD has reframed its message. The real problem is not that diverse points of view aren’t being heard. The real problem, they are now saying, is that people who believe that allowable building heights along the commercial corridors should be lowered are not being heard.

The solution, they are suggesting, is to stack the View Resources Board with people who want lower building heights. If you don’t believe me, read Diane Underhill’s article in last Sunday’s Star,

This seems to me to be the opposite of VCORD’s previous message. Are they interested in many points of view – or just their own?

Second, VCORD representatives say things that suggest they have already decided what the View Resources Board will do.

VCORD representatives have repeatedly stated that although they will appoint the View Resources Board, they will not try to influence what it does. In fact, they often say VCORD will “step away” from the process once the board members are appointed.

More recently, however, VCORD representatives have made statements that suggest they do not intend to step away. Recently, for example, Measure B opponents have expressed concern that passing the view ordinance might require a special election that could cost a quarter-million dollars. In response, in her Star piece last Sunday, Diane Underhill wrote that if an election is required, “the View Resources Board will request that it be on the November 2011 ballot so that no special-election expenditures will be required.”

Huh? The board hasn’t even been created yet, much less appointed. Yet VCORD has already decided what the board’s going to do, at least on this one issue. This makes it hard for me to believe that they are really going to step away.

Third, VCORD does not appear to be listening to all neighborhood groups—only the ones they agree with.

Here’s an example: In writing the initiative, VCORD carved out many exemption areas, mostly around employment centers. But they did not exempt the property at Harbor and Seaward, where Anastasi Development has been working with the Pierpont Community Council and the surrounding neighborhood, quite successfully, to craft a project everyone likes.

Part of the project is three stories high, but most neighbors appear to support it, and the Pierpont Community Council has been in constant discussions with Anastasi and also has been participating in the city’s review process. Nobody wants a big hole in the ground at Harbor and Seaward forever.

But if it passes, Measure B will stall the project for at least two years, and nobody knows whether there will be a permanent height limit that will make this popular project impossible to build.

So why did VCORD not exempt this property? Did they forget to call up Pierpont Community Council and ask about it? Or are they just not interested in neighborhood groups who favor a three-story building?

Either way, once again this seems undemocratic and suggests that if the voters give VCORD power, they may not listen to all neighborhood groups but, rather, only the ones they agree with.

I’m sorry that this has been such a long post. But I wanted all of you to understand the reasons in detail that Measure B concerns me. I hope you will join me in voting against it on November 3.

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