October 26, 2003 - From the October, 2002 issue

Ventura To Directly Vote On Hillside Development Plan

This November, the voters of Ventura will determine if additional housing will be added to their hillside community when they vote on Measure A. Slow growth advocates attempted to block Measure A from reaching the ballot, ensuring that the hillside would not assume additional housing units. TPR is pleased to present this interview with Amy Forbes, a partner at Gibson, Dunn & Crutcher, in which she discusses the backstory on the obstacles facing hillside development in Ventura and the legal challenge brought against Measure A.


Amy Forbes, Esq.

As the attorney for a family of landowners in Ventura County seeking voter approval for their development, share with our readers why you chose to put Measure A directly onto the ballot, bypassing the City Council.

This one family has owned approximately 4000 acres in the Ventura hillsides for over 100 years. Today, there are about 300 individuals from different branches of the family who make up the ownership. About 7 years ago, they began to focus on their alternatives for divesting themselves of the asset. Family representatives approached the city to discuss possible uses for the property that would make sense.

The land is designated in the City's general plan for hillside planned residential, four units to the acre. But the property is currently located in the unincorporated areas of Ventura County, except for 215 acres in the city of Ventura. To have anything happen, the land would have to be annexed to the city and the city would have to approve development plans.

The City Council at that time recommended that the landowners engage in a public participation process-which they did. Concurrently, city officials and civic activists engaged in a visioning process regarding the future of Ventura. As part of the visioning process, and as part of the public meetings that the landowners held, the concept evolved that people wanted an enormous amount of this property dedicated for public open space. In addition, they wanted it dedicated and maintained at no cost to the public-that was a key point that came across.

After a six-year planning process, opponents of any hillside development organized and suggested an election to approve the development. In response to that, the landowners agreed that there could be an election to decide the future of the hillsides. Then, the City Council decided to put Measure P on the ballot last November, which requires any development in the hillside or any extension of urban services in the hillside area to be subject to a vote of the people.

So, regardless of its zoning designation, and regardless of the fact that there had been this ongoing public process to determine the hillside's future, an election was inevitable. Measure P passed with support from over 70% of the voters.

It was in that context that the ownership decided that it makes no sense to start a new land-use planning process and go through years and years of more zoning hearings and environmental studies if no one liked the basic concept. They decided to put a package of approvals to the vote, giving the people enough information to understand the parameters of the development, without binding the City Council to any particular decision on specific development proposals. After doing that, if people think it's a good idea, then it would make sense to go forward with the public process to do the tract maps and the EIR and the other approvals necessary to implement the development. They put forward the concept of the six neighborhoods, the concept of the 80% open space, and the concept of this nonprofit trust owning and operating the space at no cost to taxpayers-people would know what they are voting on but the details would be decided in a regular project approval process.

Was Ventura's Measure P directed solely at your client's particular hillside development? Or, was Measure P an inevitable outgrowth of community resistance to development in the hillside?

I think it was both. People understood that this project was pending. Western Pacific had a project adjacent to this. And there are other people who own hillside property. So, it was not just this project. But, there is great sensitivity to development in the hills and there is no question that this project is the largest on the hillside.

A lawsuit from SOAR claimed that Measure A violates the state constitution by naming a private corporation in the initiative and sought to remove it from the ballot. Can you elaborate on the legality of placing Measure A before the voters and refute the claims of the initiative's opponents?

The package of approvals that were placed on the ballot includes a development agreement. We included a development agreement because build-out of the project is proposed over a 15-20 year period and the landowners have agreed to dedicate a significant portion of the open space up front, even if no approvals are ever granted by the city. Remember that this ballot measure does not require the city to approve anything-it sets up a framework pursuant to which the city can review and, if they choose to, approve the future projects. If the city goes ahead and approves future subdivisions, there are 500 acres of open space that immediately get dedicated together with money to install public trails and public access features to that open space.

So, if the open space starts to get dedicated and, five years from now, the city changes its mind, it would be devastating to the property owners. They will have given all of the property away without receiving any of the economic benefit that was part of the trade-off. So, the development agreement was the cornerstone of the approval process. By state law and by city ordinance, development agreements have to name who the parties are to the development agreement or you cannot have one.

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The opponents claim that a constitutional provision, prohibiting an enactment which names a corporation to have a power, function, or duty-means development agreements cannot be put to a vote of the people. That's what they claimed. In our case, the landowners are not corporations. One is a limited liability partnership and two are limited liability companies. So, our first, and most obvious, response was that the landowners are not corporations.

The second response-and the one which we felt more passionately about-was, as a legislative land use enactment the plan is subject to initiative and appropriately subject to a municipal vote. By state law and by city ordinance, development agreements are subject to referendums. Therefore, we believe, and the court agreed, that development agreements can be directly adopted by the people. Ventura is a charter city. Ventura has reserved to itself the broadest possible powers to approve land use initiatives. Measure P, which had been adopted by more than 70% of the voters, made it absolutely clear that the Ventura voters wanted to have direct participatory rights in determining land uses of the hillside. So, approving a development agreement was part of the rights the people reserved to themselves. Therefore, the constitutional provision doesn't really apply to this. The court agreed with us.

What was significant about the Court's ruling?

As a pre-election challenge, this case required the judge to make a ruling either in favor of the initiative being on the ballot or not. However, the judge went beyond that. The judge said that not only should this go on the ballot, but the constitutional claims and these other claims argued in opposition of the initiative cannot be raised again in a post-election challenge. From our point of view, that was a stunning victory. The judge very clearly saw that, because of Measure P, because Ventura is a charter city, and because of the people having said that they wanted to vote on land use initiatives, those broad powers should be reserved to the people. I think that was something new. We expected to win, but we had no expectation that he would go beyond the procedural claim.

Lastly, this is, to my knowledge, the first time a development agreement has been put to a vote of the people.

If Measure A passes, does your client then have all the approvals necessary to move forward? If not, what lies ahead before development of the properties could commence?

This is the first step, should the initiative pass. First, the property needs to be subdivided in accordance with the land use plan that has been put forward. That is a discretionary approval, which requires CEQA review. Then, we will have a full environmental impact report. The development agreement and other approvals make clear that the promised public benefits specified in the initiative are in addition to what comes out of the CEQA process, so the developer is fully committed to mitigating the impacts of the project. And, there is a series of land approvals that have to take place for each neighborhood and an approval that would have to take place for the design of each structure. The specifics of the neighborhoods have not yet been designed. There will be planning commission hearings and city council hearings, and the landowners fully expect there to be enormous public participation in the specifics of that design.

How do you size up the efficacy of SOAR's Measure P? Do you see it as a significant obstacle to development or as a method by which the impacted public is brought into the planning and development process?

I think it's too soon to tell. I can't second-guess what the people of Ventura decided. However, I think the plan we put to the vote is a really wonderful plan. I'm hopeful that people will take the time to learn about it and understand it. The city attorney wrote up a very favorable report on the contents of the initiative and a very good report on the development agreement to the City Council. The groups that have taken the time to study it and not just respond with a complete no-growth mentality have been extremely supportive. We had over 15,000 signatures on the petition to get it onto the ballot. And, over 1000 Ventura residents actively have signed endorsement cards in support of the plan.

Lastly, what will be the housing mix in your client's proposed development?

The project will have a mix of units, ranging from attached townhome product to a few 20-acre lots with ranchettes. The attached product will be at or below what the existing median prices are and will be affordable to people between 80% and 120% of the median income of Ventura. While this project will not include any subsidized housing product, each home sale will fund an endowment that goes towards the maintenance of the 3000 acres of open space at no cost to the public. So, the project will provide a tremendous public benefit in that sense.

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