Thursday, August 25, 2011

Measure J Was Illegal -- And Too Extreme For Ventura

By now, everyone in town has heard that last Monday Judge Mark Borrell removed the parking initiative from Ventura’s local ballot in November.

The right to vote on public issues is important to us here in Ventura. Our city has a long history of citizen-driven ballot measures, including SOAR in 1995. Sometimes these initiatives have won, as SOAR did, and sometimes they have lost, as did the convoluted “view protection” initiative on the ballot in 2009. So it’s understandable that some people are mad that Measure J will not be on the ballot and will try to make the Judge’s ruling an issue in the City Council campaign this fall. At the same time a lot of people are relieved -- and look forward to a City Council campaign that focuses on more important issues than parking meters.

But before things heat up in the City Council race, I think it’s important to step back and understand two important points.

First, whether you like it or not, the right to vote on local issues is defined by state law. And in this case, Measure J clearly violated state law.

Second, no matter how you feel about the downtown parking meters, Measure J was a very extreme measure. In addition to removing the downtown meters, Measure J would have required 2/3 voter approval for any future attempt to charge for parking on city streets and any city-owned property.


Let’s begin with the first question: Why did Judge Borrell removed Measure J from the ballot?

We in California revere the right to initiative (where citizens place legislation on the ballot) and referendum (where citizens seek to overturn a City Council action via the ballot). Yet the California Constitution doesn’t permit us to vote on everything. For example, we can vote on legislative changes (like changing zoning ordinance to prohibit liquor stores in certain parts of town) but we can’t vote on how a law is applied to individual situations (like whether or not to grant a conditional use permit to a particular liquor store). That’s not me talking. That’s what the California Constitution says and how the courts have interpreted it.

More to the point, Ventura’s voters do not have the right to adopt an ordinance that conflicts with state law, any more than the City Council does.

While it’s very unusual for a ballot initiative to be removed from the ballot before it is voted on, courts have consistently confirmed that if an initiative is obviously unlawful there is no point in holding an election.

Which is what happened with Measure J. Measure J was a ballot initiative that would have removed parking meters and required future on-street and off-street parking decisions to be decided by the voters, not the City Council. That directly contradicts California Vehicle Code Section 22508 which states that parking meter actions are only subject to referendum – the right to veto City Council actions. California law does not allow voters to make parking laws of their own by an initiative, because doing so would make it difficult for a city to respond to traffic problems in a timely fashion. The exclusion of parking meters from the initiative process was tested in court and has been settled law since the Sixties.

In short: Carla Bonney, the local Tea Party leader who has been Measure J’s main proponent, could have gathered signatures to challenge the City Council’s action to install the paking meters at the time the decision was made (via referendum). But she was prohibited by state law from writing her own initiative law to govern local parking regulations.

All this seemed very clear to our City Attorney and to a majority of the City Council, which concluded it had no other option than to test Measure J’s validity in court. The proponents, of course, claimed that the lawsuit was seeking to “thwart the will of the people”. Yet they never really addressed the fatal defect: that their initiative ran afoul of the law.

In her statements before the City Council, Bonney did not seem to know the difference between a referendum and an initiative. In her interpretation, any ballot measure was a referendum until it was placed on the ballot, at which time the measure would become an initiative. She also repeatedly dismissed the long-standing California case law that forbids parking initiatives simply because the cases were old.

In court, the proponents argument was that the Vehicle Code didn’t apply to parking meters since they claimed the parking meters were not intended to control traffic. Instead, she argued that the City was really trying to create a “fee monopoly” with the paid parking system downtown. (I’m not sure how you create a monopoly by charging for 300 spaces when there are 2,000 nearby spaces that are free, but anyway, that was the argument.) It was a convoluted argument and Judge Borrell didn’t buy it. Instead, he followed the clear precedents of long-settled law.

That’s why Measure J was removed from the ballot,


It seems to me that the legal defects in the initiative itself were related to the way the whole anti-meter movement morphed over time. The movement began with concern by some downtown merchants that their business would be hurt by the meters. By the time it reached the ballot, it had changed into an effort driven mostly by members of the local Tea Party who claimed that American freedoms were at risk.

When the paid parking first went in, I attended a couple of meetings of local merchants who were understandably fearful that their business would be hurt. These meetings were attended by about 15 merchants (out of the approximately 160 merchants downtown.) In response, the city made significant changes: removing some of the meters, reducing the hours that the paid parking was in effect, and providing thousands of one-hour-free coupons during the Christmas season. Although we discussed other possible changes, even the concerned merchants could not agree on which to implement.

Meanwhile, the City used the money from the meters to heavily beef up the police presence downtown – with impressive results. Since last fall, downtown crime is down 40%. Retail sales actually increased – by about 3% over the prior year, despite an ailing economy. When downtown merchants had a strong Christmas season, most of them stopped complaining about the meters.

From the beginning, however, members of the local Tea Party championed the parking meters as their political issue. Led by Carla Bonney and Gary Parker, who owned American Flag & Cutlery on Main Street, they claimed the parking meters constituted an illegal tax. As it became clear that downtown had not become “a ghost town” (as some claimed) but in fact was doing well, the entire argument against the meters shifted away from the impact on downtown merchants and toward a Tea Party crusade.

Indeed, when Carla, Gary, and Randall Richman (who's not a Tea Party guy) unveiled their initiative last spring, it went far beyond removal of the meters downtown. It would have required 2/3 voter approval anytime the City wished to charge for parking on any city street or city-owned property. This extreme provision had wide-reaching implications. It would make it nearly impossible for the City to build another parking garage downtown. It would make it very difficult for the City to partner with Community Memorial Hospital in building parking for the expanded hospital. Neighborhoods that hoped to use parking revenue to improve their parks, as at Marina Park, would be out of luck. Even neighborhoods that wanted residential permit parking, as around the hospital, would have to win a 2/3 citywide vote because the City charges $10 per year for the permits.

Carla and her team worked hard and collected over 10,000 signatures. Most of those were undoubtedly local residents concerned about downtown parking meters. But in order to secure the signatures, the signature-gatherers frequently used arguments that were just plain untrue (such as the idea that the City Council wanted to charge astronomical parking fees for everyone in town to park in front of their own house.) But the signature-gatherers rarely mentioned the 2/3 provision to voters.

Tea Party representatives began appearing before the City Council to claim that parking meters were just the beginning of a comprehensive plan to implement the United Nations’ Agenda 21 effort to promote on sustainable development, which they believe is a worldwide plot to undermine private property and threaten other freedoms. (Tea Partiers around the nation have attacked local planning policies by using Agenda 21 as well.)

Once the initiative qualified for the ballot, it became quite clear that the whole effort had turned into e campaign by Tea Party activists to galvanize support for their political agenda.


Much as I admire Carla’s tenaciousness and her impressive signature-gathering effort, I just never believed she and her supporters were really in touch with Ventura’s voters. Sure, people are skeptical of government – and rightfully so. But do folks around town really think that the City Council is planning to charge people astronomical prices to park in front of their own house? Or that we are part of a vast United Nations conspiracy to rob us of our freedoms because we charge for 300 parking spaces Downtown? I think voters are far more concerned about maintaining our vital public services so that Ventura will be safe, clean city that’s a great place to live.

This is a small town, and I can tell you from personal experience that Ventura’s voters – while cautious – are nevertheless practical. They like their elected officials to be local folks in touch with what’s really going on in town, not with some imagined, extreme threat. Venturans may be receptive to the fiscal conservatism of Tea Party folks – and with good reason -- but they don’t usually fall for hyperbole, half-truths, or overheated conspiracy theories.

I’m not running for re-election this fall, but it seems to me that the 11 people who are in the City Council race would do well to remember the lessons of the whole Measure J episode. Instead of focusing on the few issues we disagree on, let’s debate who can best move us forward on the 95% of things that we do agree on. Let’s bear in mind that, while we live in a democracy, we are a nation, and a state, and a city of laws and we must respect those laws even when we don’t particularly like them. And in trying to make our community better, let’s focus on the practical steps that will move us forward – things that will, for example, reduce crime downtown – rather than getting sidetracked by the idea that parking meters in downtown Ventura are part of a United Nations plot to take over our community.