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November 2002 - Measure A

Why I'm Against Measure A
by Bill Fulton
October 23, 2002

I would be happy to talk or communicate with anyone in Ventura about my concerns regarding Measure A and my goal of finding a constructive alternative. You can contact me at
On November 5, Ventura citizens will vote on whether to adopt Measure A -- the "Open 80 Master Plan Act of 2002". This initiative, which was placed on the ballot by Lloyd Properties and affiliated landowners, deals with the disposition of 3,812 acres, or about two-thirds of the total Ventura Hillsides property. The Open 80 plan offers to provide 3,050 acres of permanent open space and 32 acres of city parks in exchange for permission to build 1,390 houses on the remaining 730 acres.

Although I have researched and examined land-use planning and especially "ballot-box zoning" extensively throughout California, I have never taken a public position on a land-use ballot measure in Ventura before. However, this time out I have taken a position against Measure A. I don't think Measure A represents the best solution for Ventura and I would urge all Venturans to vote against it.

To explain why I'm against it, let me walk through five pieces of my argument, which are:

1. The community's goals for the hillside property, especially given the consensus reached in the "Seize The Future" vision.

2. "The deal" offered by Lloyd Properties

3. The process by which Measure A wound up on the ballot.

4. The implementation process that will follow if Measure A passes.

5. How we can construct an alternative vision for the hillside property and for the greater Ventura community.

1. Goals
The "Seize The Future" Community Vision accepted by the City Council in March of 2000 laid out an important set of principles that the community agreed upon regarding our community as a whole and the hillsides in particular. These principles include requiring a "Hillside Comprehensive Plan" for the entire property (whether or not the proposal is to develop the hillsides, conserve and restore them, or a combination of the two) and focusing on the issue of maintaining and restoring the natural systems in the hillsides. This second point is especially important given the Vision's overall emphasis on Ventura as an integrated ecosystem. These principles are contained on pages 96-99 of the Vision.
Based on the Vision and the other considerations now before the Comprehensive Plan Advisory Committee, I believe Ventura's goals for the hillside property should be very simple. They should be to:

1. Maximize the recreational opportunities that the hillside property represents for the people of Ventura.

2. Ensure that the hillside property is managed in an ecologically responsible manner that minimizes both risk and cost to the people of Ventura.

3. Provide the landowners with a fair price for their land so they will sell it willingly.

4. Ensure that sufficient workforce housing can be built elsewhere in town without using the hillside property to do so.

2. The Deal
I believe that the deal proposed by Lloyd Properties in Measure A should be viewed as a starting point for a community discussion about the hillside property, and the Lloyds should now negotiate with the community. But I have too many concerns to vote for it. My concerns about the deal include the following:

First, we don't have a clear idea of what the true environmental, traffic, and fiscal impact of the project really is.
The project will probably generate a net operating surplus in the city's general fund each year, but I have major questions about capital facilities. These questions have not been adequately answered in the campaign. These concerns fall into several categories:

1. Fire Protection
The Open 80 Fiscal Analysis, prepared by reputable consultants for Lloyd Properties, assumes the construction of a new fire station but does not say where it will be located, how it will be paid for, and how much of it the Lloyds will pay for. The city has a $4 million capital plan for new and expanded fire facilities (the details have not been made public yet) but only has $2 million in capital funds to pay for them at this point.

2. Schools
The Lloyds have promised to pay the legally required amount of $7.5 million in impact fees for schools, but they have not offered to cover the entire cost of additional school capacity created by their project nor have they offered land for a school. As Ventura Unified's own analysis revealed, almost all the schools affected by the Lloyd project are currently operating at almost full capacity. According to two analyses prepared by Ventura Citizens for Hillside Preservation based on VUSD statistics, the actual cost of additional school facilities for the Lloyd project students will be somewhere between $10 million and $14 million. Although the school district is somewhat constrained by state law, it is very unusual in a project of this size not to offer something more than the legally required amount.

3. Traffic
The Lloyd project is likely to generate between 10,000 and 14,000 vehicle trips per day. Every single vehicle will either traverse or cross Foothill Road. In its campaign rhetoric, Lloyd Properties has simultaneously promised to maintain the rural character of Foothill Road (Goal 2.3 of the Vision, page 98), while mitigating all traffic impacts (which would almost certainly require major expansion of at least parts of Foothill). The Open 80 Master Plan Act contains some specific capital improvements along Foothill, but the overall question of how to mitigate traffic cannot be answered until an EIR is done.

4. Open Space Endowment
The Lloyds have proposed a $5.5 million endowment (to be paid in increments over time without adjusting for inflation) for the 3,000 acres of open space they will preserve in perpetuity. This amount, which would generate about $275,000 a year in operating funds to maintain the open space, may or may not be enough to maintain hiking trails and other recreational facilities and to restore and maintain the ecosystems on the property. We don't know enough about the condition of the land and the precise nature of the ecological restoration to know for sure.

Second, the high-end homes that would be constructed as part of Open 80 would do nothing to assist the city in creating the workforce housing (moderate-income rentals and ownership opportunities) that is Ventura's most pressing housing need.

About 40% of Ventura's households make less than $44,000 per year and at present cannot afford any ownership opportunities. Another 25% or so make between $44,000 and $66,000 and therefore can afford ownership housing in the vicinity of $180,000-$300,000.

Our most pressing housing needs are for affordable rental units of all kinds and ownership opportunities in the range of $200,000 and $300,000.

The Lloyd project would provide only ownership opportunities at an average price (according to the Open 80 Fiscal Analysis) of $550,000

In my view, this would only stimulate purchase by more out-commuters who make higher incomes elsewhere. This is especially important because teachers, public servants, and service workers are being priced out of the Ventura market and a further influx of high-end residents or commuters will only make this problem worse.

Third, in drafting Open 80, Lloyd Properties has included many "deal points" favoring their project that should be negotiated but cannot be in an initiative situation.

For example, Measure A guarantees the project 695 units of housing between 2005 and 2010 (about a third of all housing allowed in the city). This will take housing opportunities away from other developers, from affordable projects, and so forth. I am also concerned about their unilateral rewriting of our Hillside Management Program and other city policies.

Fourth, Lloyd Properties has also taken the unprecedented step of writing its own Development Agreement and placing it on the ballot.

A Development Agreement is a tool created by the state to serve as a binding contract between a city and a developer. The idea is the developer provides "more than their fair share" of infrastructure improvements and in exchange receives a guaranteed right to move forward with their project in exchange.

Although there is some dispute over the precise breadth of this Development Agreement, I am reluctant to approve one that has not been negotiated by city representatives. Like any contract, a Development Agreement is supposed to be negotiated by both sides, so that each side can be assured that its concerns will be dealt with. In the case of Open 80, this simply has not happened.

As Lloyd Properties points out, the Development Agreement does have the benefit of locking in the houses-for-open-space deal for both sides. But any number of other concerns typically dealt with in a Development Agreement -- including a financial plan for the construction of all capital facilities and public infrastructure required because of the construction of a project -- are simply not dealt with in the Open 80 Development Agreement. To the extent that they are dealt with, we are required to either accept or reject Lloyd Properties proposal, even though we know little about the true impact.

3. The Process
Perhaps my greatest concern is the process by which Measure A wound up on the ballot -- with no independent review by the city or other any entity not associated with the landowner. In this regard, I am disappointed not just with the landowner but with our City Council as well. My concerns include the following:
First, Measure A represents an end-run around the Comprehensive Plan revision process that is moving forward right now under the direction of the City Council.

In 1998, the City Council initiated a Comprehensive Plan revision by initiating the "Seize The Future" visioning effort, which was designed to create a "big-picture vision" for the future of the city that the Comprehensive Plan would build on. To its credit, Lloyd Properties participated in the vision process and then teamed with other landowners on a master plan for all 6,000 acres of hillside property as the vision called for.

Subsequently, however, Walker-Hearne split off from the property owner group and Lloyd Properties moved forward with a plan just for 3,800 acres. This is not in the spirit of the vision, and in particular it is a violation of Vision Strategy P2.1 (page 97). Lloyd Properties could have continued to try to work through the Comprehensive Plan revision process to achieve their goals, and then gone to the ballot after the community had reached consensus about what to do with the hillside property. But the firm chose instead to write the Open 80 Master Plan Act and the accompanying Development Agreement and place them on the ballot via initiative immediately.

Admittedly, the Comprehensive Plan revision process has been frustrating and slow. I understand why Lloyd Properties would like a quick decision from the voters. But I do not understand why the City Council has not discouraged Lloyd Properties from going straight to the ballot. I believe the council should have taken whatever steps are necessary to keep the discussion of their project inside the bounds of the Comprehensive Plan revision, which the council itself initiated and which is still in progress.

So now we are confronted with a complicated rewrite of many of our planning policies and codes -- a rewrite done not by our own planners or lawyers and reviewed by our own elected officials, but, rather, a rewrite prepared by Lloyd Properties' own very capable lawyers without public review and, obviously, for the benefit of the landowners, not the residents. I think that this is a bad way to make important decisions for our community. In many ways, a vote for Measure A is a vote to transfer power not to the people, but to landowners and their lawyers who operate in private. I do not think we should set this precedent, especially with the Walker-Hearne landowners waiting in the wings.

Second, I am also disappointed in both Lloyd Properties and the City Council for not doing more to inform the public.

A ballot initiative is not subject to the same rules of review as a regular development proposal. It is not subject to environmental review and no analysis of the project is required. Nevertheless, both sides could have taken steps. Lloyd Properties could have released information about the property and the project's prospective impacts -- information the firm has obviously gathered in the course of shaping the Open 80 Master Plan Act. The City Council could have ordered an analysis of the project to assist voters in understanding it. Indeed, the staff made a recommendation to do an analysis, but the council voted against doing so. The decision earlier this week to review a fiscal analysis commissioned by the Lloyds does not, unfortunately, leave the city staff with much time to conduct a meaningful review.

I cannot emphasize enough how disappointed I am in the council in refusing to conduct an analysis. Because of Measure P, the voters have taken the place of the City Council as the decision-makers in this case -- a course of action that is permissible under California's initiative and referendum law. But the City Council refused to make available to the voters the same information they would have demanded for themselves if they were making the final decision.

As a result of all this, we are an extremely poorly informed set of decision-makers. The property owners have released only three documents: The Open 80 Master Plan (which describes the project, depicts how the project might look, and explains some of Lloyd Properties' financial promises), the Open 80 Master Plan Act (the 165-page text of the initiative), and a fiscal analysis that was reviewed by city staff but never debated publicly. (This afternoon (10/22), the property owners also released parts of their traffic analysis, but only after much prodding by reporters.) The city has released only one document: the City Attorney's brief analysis of the legalistic aspects of the initiative. The only other analysis by a public agency is a five-slide powerpoint presentation, with no supporting staff report, presented by the staff of Ventura Unified School District at the October 8 school board meeting.

I have worked very hard with Ventura Citizens for Hillside Protection and others in Ventura to try to understand and analyze this project and help to convey this information to voters. But it has been an uphill battle even for knowledgeable citizens to gather enough information to cast an informed vote. I cannot imagine how anyone could feel they know enough about this project, the way it changes city policies, and the impact it will have on our community to vote in favor of it.

4. The Implementation Challenge
If Measure A passes, I believe that the people of Ventura and the City Council will face a very difficult struggle in implementing it in a way that provides maximum benefit to the city. I have several concerns. First, although Lloyd

Properties representatives have repeatedly stated that the company will mitigate all impacts, I am not convinced that it will be either politically possible or economically feasible to do so.
Impacts and potential mitigations will be identified by the Environmental Impact Report that will be prepared if Measure A passes. But it is important to remember that under the California Environmental Quality Act, mitigation measures must be "feasible," meaning they must not be so financially burdensome that the project cannot be constructed as a result.

Typically, in preparing an EIR, a city would consider alternatives to the project being proposed, including alternative project sizes, to ensure a good "fit" between the projects, its impacts, and its economically feasible mitigations. But this will not happen in the case of the Open 80 Master Plan. The city will be able to consider only one project -- the 1,390-home project contained in Measure A -- no matter what its impact or how economically feasible its mitigation.

It is also important to remember that, under CEQA, a project can still move forward even if all the significant impacts are not fully mitigated. The City Council can do this by adopting a "Statement of Overriding Considerations" concluding that the benefits of the project are so great that they outweigh the significant impacts that have not been mitigated. In fact, the Open 80 Master Plan Act makes a point of restating this power very clearly -- even to the point of stating that the people of Ventura "find" that a Statement of Overriding Considerations should be seriously considered, no matter what the impacts are.

It is certainly possible to imagine a scenario in which Lloyd Properties claims that full mitigation would be so expensive that the project would no longer be feasible; and then the City Council adopts a Statement of Overriding Considerations, claiming that the passage of Measure A essentially binds them to do so.

Second, I am concerned that the passage of Measure A will set up a post-election negotiation with Lloyd Properties and the city over the true cost and value of capital improvements that Lloyd Properties plans to construct -- a negotiation that I believe the city may be ill-equipped to take on.

Lloyd Properties has stated that it will pay $14.5 million in required mitigation fees to the city. Half of that money would go toward traffic mitigation, while the remainder would be divided among water and sewer fees, park fees, and fees for general capital improvements. These fees would be used for projects that benefit the entire city but are necessitated in part by the construction of the Lloyd project. By contrast, Lloyd would be expected to pay for or build all capital improvements that are required by the construction of its project, and benefit its project only.

However, in the Open 80 Master Plan, Lloyd Properties has also laid out a very specific list of improvements the firm is willing to make (including, for example, $250,000 to reconfigure the Hall Canyon-Poli-Seaward intersection) that it claims to be "non-nexus offsite improvements" . These properties are technically of benefit to the public because they are associated with parks the Lloyds would donate -- meaning Lloyd Properties clearly regards these improvements as projects of citywide benefit, not projects required only to serve its project. Furthermore, the Open 80 Master Plan Act specifically states that the city will give Lloyd Properties credit against the impact fees for public improvements that are not directly related to the project.

Thus, my concern is that Measure A sets up a situation where Lloyd Properties will construct many public improvements that are necessary because of its project (such as the Hall Canyon realignment) and then seek to get credit against the impact fees for these projects because they benefit the entire city. If the city is not extremely savvy in negotiating this agreement, Lloyd Properties may get more than its share of credit against impact fees, and it will be Lloyd Properties -- rather than the city -- that will determine which projects will be constructed with the impact fees.

In my view, this undermines the whole reason to have a Development Agreement in the first place. Under Development Agreements, developers are permitted to pay for "more than their fair share" of public improvements (an exception to the general rule) in exchange for a "vested right" to construct their projects. In a typical Development Agreement, the developer and the city would agree up-front on the citywide capital improvements that the developer will pay for. In this case, we must negotiate all this after the Development Agreement is approved by the voters.

Third, the Open 80 Master Plan will force the city into a series of hasty revisions of the city's growth management program outside the context of the Comprehensive Plan process.

Under the city's current Comprehensive Plan, the city has a 2010 population limit of 115,874, which is then translated in a specific number of housing units available. Those units are allocated to developers through the Residential Growth Management Plan process.

The Open 80 Master Plan Act guarantees the Lloyd Project 695 housing allocations between 2005 and 2010 (and another 695 between 2010 and 2015), but it does not increase the 2010 population limit.

At present, there are 3,192 units available between 2002 and 2010, an average of 399 per year. Thus, under the current system, Lloyd Properties will be entitled to 35% of all housing units (695 out of 1,995) between 2005 and 2010. To accommodate this guarantee, the City Council will have to choose between two politically unpopular decisions, probably during 2003:

1. Take units away from affordable housing and other purposes, or

2. Increase the 2010 population limit.

I think it is important to note that the Open 80 Master Plan Act does not propose how to make these unpopular decisions but, rather, sets up a situation where the City Council must make them instead.

Furthermore, the city currently has no policies at all regarding housing availability and growth management beyond 2010. That is part of the job of the Comprehensive Plan revision.

I believe that one of our community's most difficult challenges in revising the Comprehensive Plan is to manage residential growth between 2010 and 2020. According to the city staff, our community has only 300 acres of vacant land available for residential growth. What additional land should be used for residential growth (if any) and what type of housing it should accommodate are questions that the entire community should debate broadly in the context of the Comprehensive Plan revision process.

The Open 80 Master Plan Act essentially boxes this process in by specifying that whatever the city's policies are, 695 units must be allocated to the Lloyd project between 2010 and 2015. Thus, Open 80 not only circumvents the current Comp Plan revision process, it undercuts that processes chances to reach consensus.

Fourth, I do not believe the City Council will have as much discretion in approving the actual neighborhoods as Lloyd Properties claims.
The project is divided into six neighborhoods, each of which will be processed individually by the city through the normal planning process. Lloyd Properties has made much of the fact that the city will have control over the specific development standards in these neighborhoods and that the city can, in theory, deny these subdivisions one by one.

I agree that the city will have approval power over the specific development standards and that denial of any and all neighborhoods is theoretically possible. But there are consequences. First, the open space will be turned over in pieces only when the neighborhoods are approved. It's true that if no neighborhoods are approved, the open space will be turned over at the end of 20 years. But then the city will get just the land, not the $5.5 million endowment to manage it.

Lloyd Properties has also made much of the fact that the Development Agreement states that, unlike all other development agreements I have ever heard of, it does not give the firm the irrevocable right to build the entire project no matter what. This may be technically true based on a narrow reading of the Development Agreement. But it is important to remember that the entire reason the development agreement law was passed was precisely to do what this Development Agreement claims not to do -- that is, give developers the irrevocable right to build. I have a hard time believing that, several years from now, if a neighborhood is turned down by the city, Lloyd or a subsequent developer will refrain from filing a lawsuit based on a different legal interpretation than what Lloyd is claiming now.

I also believe it is extremely unlikely that a future City Council will choose to "undo" the Measure A deal by denying one or more neighborhoods. I think it is far more likely that they will brush aside concerns about the neighborhoods by stating that they are simply following the voters' will in approving them. It is also true that the most important approval process, historically, has been the allocation of housing units under our Residential Growth Management Program. No project that has received allocations has ever been denied later permits. As I said before, Measure A allocates to the Lloyd project all 1,390 housing units they need to build the project.

Fifth, I am concerned about the independence and the integrity of the land trust that would be created to accept the open space land.

The Open 80 Master Plan Act specifies that a private, nonprofit land trust will be created to accept and manage the open space. The Act specifies that the land trust will be independent from the landowners and it specifies the composition of the board to include specific slots for the city and other civic institutions (as well as Lloyd properties).

The creation of a private, nonprofit open space land trust in Ventura is long overdue. However, the Open 80 land trust would have to be created by Lloyd Properties (as the landowners acknowledge). And I am not entirely sure that a ballot initiative can order a private entity to create a private nonprofit land trust. Even if it can, I am not entirely sure that Lloyd Properties would be bound by the direction in the Act.

I am also concerned about a provision that requires a national land conservancy to be waiting in the wings to take over if the local land trust fails. No organization has committed to this role at this time. And if none comes forward the land cannot revert to a government agency under the terms of Measure A.

Sixth, I am concerned about what happens if and when Lloyd Properties sells the project to another developer.

Lloyd Properties has acknowledged that it is likely to sell the project before it is entirely constructed and perhaps even before construction begins. There is nothing wrong with this -- such transactions are very common -- but I believe this means no one should vote for Measure A based on promises from Lloyd Properties to solve unspecified problems in the future.

In particular, I think the possibility of an ownership change would be very troublesome regarding all of the implementation issues listed above. A new owner may or may not have a sense of stewardship about the land or a sense of integrity about what has come before, and might instead choose to "fight hard" on the unresolved matters that require negotiation and later decisions.

5. A Positive Alternative: The Open 100 Preservation Plan
I recognize that opponents like myself are open to the charge that we are "just saying no" and have no plan to offer as an alternative to Open 80. This is because Lloyd Properties has provided no opportunity to discuss alternatives other than the seven public meetings it held, and the city government has provided absolutely no alternative public forum to discuss alternatives -- not even the Comprehensive Plan revision process, which is supposed to discuss alternative scenarios for the future growth of our community.ust also commit itself to pursuing a positive alternative. I would suggest that there are three steps.

First, we should remember that the Seize The Future vision provides us with a starting point. Once again, this is contained in pages 96-99 of the Vision, which calls for a comprehensive plan for the hillsides that (whether it calls for development or conservation or both) respects and restores natural systems and encourages a wide-ranging and open community planning process. Surely we can all agree on these principles as we move forward -- indeed, we've already done so.

Second, we should bear in mind that the Comprehensive Plan revision process, which was initiated by the City Council, is in the process of laying out the future growth of the city, using the vision as a foundation. I would suggest that, if Measure A fails, the hillside question be returned to the Comprehensive Plan Advisory Committee for discussion as part of the city's overall future.

Third, in that context, I would propose that our community pursue an "Open 100 Preservation Plan" as part of the Comprehensive Plan. This is in keeping with Strategy P2.6 of the Vision (page 98), which calls for the creation of an Open Space Preservation Plan for the hillsides.

Creating the Open 100 Preservation Plan would require several important steps while the Comprehensive Plan is being completed during 2003. These steps would include:

1. Reach an agreement with the landowners not to pursue other development proposals or new revenue-producing activities on the hillside land for a specified period of time, perhaps 18 or 24 months.

2. Assess the current ecological assets and potential restoration value of the hillside property, in order to better gauge likely interest on the part of state and federal natural resources agencies and large land conservancies.

3. Identify all potential funding sources, including federal, state, and local public funding sources; all private philanthropic funding sources; and creative alternatives to raise funds or reduce the cost of the land, including mitigation banking, "swapping" developable land in the Ventura flats (especially land owned by public agencies) for hillside property, and purchase or donation of conservation easements rather than actual purchase of the property.

4. Create a truly independent Ventura-based nonprofit land trust to own and manage the hillside land.

5. Work through the Comprehensive Plan to ensure that the needed workforce housing is provided in our community and that the Open 100 Preservation Plan does not impede progress toward that goal.

6. Prepare an Open 100 Preservation Plan that details how the 100% of the hillside land will be protected, restored, managed, and made available for recreational use.

In Conclusion
Although I am opposed to Measure A, I am also convinced that defeating it is not an end in itself, but a necessary step toward resolving the question of "what to do with the hillsides. In my opinion, we must purchase and manage the land as a community. Otherwise, the landowners will continue to try to develop the property and/or attempt to raise revenue from the land in other ways that may not benefit our community. That is why I would ask everyone in Ventura not just to oppose Measure A, but also to endorse the "Open 100 Preservation Plan" as an alternative.
Many people have asked me whether I would support this project -- or development in the hillsides -- under any circumstances.

As I stated above, I would prefer to see the entire hillside property acquired for permanent open space and find other, more creative ways to meet our housing needs throughout the city. If I did not hold this opinion, it would be much more difficult for me to oppose Measure A.

On the other hand, if this proposal had emerged from a full and fair debate in the Comprehensive Plan revision process, and I knew what the impacts were and how they would be mitigated, it would be much harder for me to oppose it. And, of course, if the voters approve it on November 5, I'll accept that answer. Under Measure P, they are the final decisionmakers in this case.

But my bottom line is that I believe we can do better than Measure A. If we work cooperatively and with great creativity, we can find a way to permanently preserve and restore the hillsides; still provide our community with needed housing elsewhere in the city, and continue to work together to make Ventura a great place to live.

Ventura Citizens for Hillside Preservation
Ventura, CA 93003

(805) 665-3820

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