Title
Recommendation to Receive the Report on the Initiative Measure to Change the Land Use Designation for an Approximately 3.65 Acre Site on McKay Avenue, by Amending the General Plan Designation from Office to Open Space, and by Amending the Zoning Ordinance from Administrative-Professional District to Open Space District and Consider the Following Options: Option 1 - Adopt the Ordinance; or Option 2 - Adopt a Resolution Submitting the Ordinance to the Voters. (City Clerk 2220) [Continued from January 2, 2019]
Body
To: Honorable Mayor and Members of the City Council
From: Lara Weisiger, City Clerk
EXECUTIVE SUMMARY
On December 4, 2018, the City Council accepted the Certificate of Sufficiency for an initiative measure to change the land use designation for an approximately 3.65 acre site on McKay Avenue from Office/Administrative-Professional to Open Space (the “open space initiative”) and ordered a report on the effect of the open space initiative. The Elections Code now requires the City Council to either: 1) adopt the ordinance within 10 days; or 2) submit the ordinance to the voters by adopting a resolution placing the measure on the ballot.
BACKGROUND
On November 28, 2018, the Alameda County Registrar of Voters (Registrar) determined the initiative contains sufficient valid signatures to qualify for the ballot. On December 4, 2018, the City Council accepted the certificate of sufficiency and directed staff to return with a report on the effect of the initiative within 30 days pursuant to Elections Code Sections 9212 and 9215.
DISCUSSION
The report on the effect of the proposed ordinance (Exhibit 1) analyzes the impacts on the General Plan, zoning, and fiscal impacts. At this point, the City Council must: 1) adopt the ordinance (Exhibit 2), without alteration; or 2) adopt a resolution submitting the ordinance, without alteration, to the voters.1
Election Date
If the Council elects to place the initiative on the ballot, Elections Code Section 1405(a) states the measure shall be held at the jurisdiction’s next regular election, which is November 3, 2020. Section 1405(b) gives the Council discretion to call a special election not less than 88 days (March 31, 2019) nor more than 103 days (April 15, 2019) after the order of election. Elections Code Section 1000 establishes election dates. November 5, 2019 is the next established election date, but it is not within 103 days from the order of election. Pursuant to Elections Code Section 1003(e), a special election for a city initiative can be called on a day that is not an established election date, provided that that day is a Tuesday (Elections Code Section 1100). The Registrar has confirmed they will conduct a special election for the City on April 9, 2019.
In addition, Council should consider newly added Elections Code Section 9215.5 which takes effect January 1, 2019, and allows the proponents to withdraw the measure up until 88 days before the election, or January 11, 2019, in the event of a special election on April 9, 2019, or August 7, 2020, in the event that the Council places the measure on the November 3, 2020 ballot. This allows municipalities to operate more like the State to address initiatives and work with the proponents to reach an agreement, rather than proceeding with an election.
Ballot Question
State election law requires that the ballot pamphlet include a ballot question of no more than 75 words. The City Council is to approve the wording of the ballot question. The proposed question is:
Shall the initiative to change the land use designations for a 3.65-acre parcel on McKay Avenue from Office/Administrative-Professional to Open Space, which limits use of the property to parks and recreational uses and prohibits the development of a wellness center for senior assisted living and supportive services for the homeless currently planned for the property, be adopted?
November 2020 Election Ballot Arguments
If an election is called, the Council needs to determine its interest in authoring an argument for printing in the sample ballot. Elections Code Section 9286 requires that ballot arguments be submitted within 14 days of the date the City Council calls the election. However, the 14-day deadline does not apply if the election is consolidated with a statewide election. Since the November 2020 election would be consolidated with a statewide election, the November 2020 resolution directs the City Clerk to set the date for submission of ballot arguments in accordance with applicable law, publish those dates, and place the matter of arguments on a future agenda to provide notice of the deadline and to allow the City Council to determine its interest in authoring an argument.
April 2019 Election Ballot Arguments
Since April 9, 2019 would not be a consolidated election, the arguments must be submitted within 14 days of the City Council calling the election. If the City Council approves the resolution submitting the open space initiative on the April 9, 2019 ballot, the direct argument deadline is January 16, 2019 and the Council must determine its interest in authoring an argument by that date. Direct arguments can be no more than 300 words and have a limit of five signers. Rebuttal arguments cannot exceed 250 words and have a limit of no more than five signers. The deadline for rebuttal arguments would be January 24, 2019.
If the City Council elects to prepare a ballot argument and potential rebuttal, it has the following options: 1) draft an argument as a whole body in open session and decide signers at that time; 2) authorize no more than two Councilmembers to meet as a subcommittee of the City Council to draft an argument and have the entire Council sign; 3) authorize no more than two Councilmembers to draft an argument and decide to have a combination of Councilmembers and/or other signers; or 4) authorize no more than two Councilmembers to draft and sign an argument and have up to three/four other signers. The City Council could also elect not to draft an argument.
Impartial Analysis
The resolutions for either election date direct the City Attorney to prepare an impartial analysis not exceeding 500 words in length to be printed in the ballot.
FINANCIAL IMPACT
Placing the measure on the ballot for the next general municipal election on November 3, 2020, would cost approximately $25,000 for translation, typesetting, and printing the measure. The costs could be included in the General Fund budget for Fiscal Year 2020-21.
For special standalone election with polling locations, the Registrar estimates the cost to be $580,000 to $730,000. The costs associated with placing the measure on the April 9, 2019 ballot are not included in the General Fund budget for Fiscal Year 2018-19.
Additionally, fiscal impacts are addressed in the report on the effect of the proposed ordinance.
MUNICIPAL CODE/POLICY DOCUMENT CROSS REFERENCE
The open space initiative proposes to amend the City’s General Plan from Office to Open Space and the Zoning Ordinance designation from Administrative-Professional District to Open Space District for the approximately 3.65 acre site.
ENVIRONMENTAL REVIEW
Submittal of an initiative measure to the voters (Option 2) is exempt from the California Environmental Quality Act (CEQA). Similarly, adopting the Ordinance without alteration (Option 1) is exempt from CEQA. Adoption of the Ordinance is not a project under CEQA because it involves only a ministerial action by the City Council pursuant to CEQA Guidelines Section 15268. A “ministerial action” is a “governmental decision involving little or no personal judgment by the public official [or decision making body] as to the wisdom or manner of carrying out the project. The public official [or decision making body] merely applies the law to the facts as presented but uses no special discretion or judgment in reaching a decision.” CEQA Guidelines Section 15369.
RECOMMENDATION
Consider the following options pertaining to the initiative measure changing the Land Use Designation for an approximately 3.65 acre site on McKay Avenue, by amending the General Plan Designation from Office to Open Space, and by amending the Zoning Ordinance from Administrative-Professional District to Open Space District:
Option 1 - Adopt the ordinance; or
Option 2 - Adopt a resolution submitting the ordinance to the voters; decide interest in drafting ballot arguments; and direct the City Attorney to prepare the Impartial Analysis.
Respectfully submitted,
Lara Weisiger, City Clerk
Financial Impact section reviewed,
Elena Adair, Finance Director
Exhibits:
1. Elections Code Report
2. Proposed Ordinance
Footnote:
1 A question has been raised about whether alleged misstatements made in connection with the circulation of the measure affects the validity of its qualification. Although Elections Code section 18600 provides for misdemeanor penalties for intentional misrepresentations made during the circulation of a measure, this provision is enforced by the District Attorney, not the City, and misstatements, even if made, generally do not affect the validity of the qualification of the measure. Furthermore, the City has a ministerial duty to place the measure on the ballot and may not consider extrinsic evidence in determining the validity of the measure. Alliance for a Better Millbrae v. Wade, 108 Cal.App.4th 123 (2003).