Regarding the Escondido Country Club land use dispute, Judge Maas has spoken.
The problem is, what did he say?
There were multiple actions that he was considering. In the end, his ruling focused on the narrow issue of 'was the ordinance adopted by the City Council, which was initiated by the Escondido Country Club Homeowners Organization (ECCHO), to declare the 110 acres of country club property permanent open space, legally implemented, or did it discriminate against one individual (the property owner, Michael Schlessinger aka Stuck-in-the-Rough)?'
The Judge apparently decided that the action of the Escondido City Council was not constitutional. That Stuck-in-the-Rough (SITR) had been unfairly singled out, and that the effect of the adaptation of the ordinance (the Citizens Property Rights Initiative) was to illegally deprive Mr. Schlesinger of the zoning rights to build homes on the defunct golf course.
In summary, Judge Maas said:
- The basic Ordinance, as written, was consistent with the General Plan and the California State Constitution.
- That a citizens initiative is, in it's basic form, a proper way to amend a duly executed General Plan.
- That the initiative was generally consistent with the General Plan with regards to designating public and private land use independant of financial impacts.
- The problem with the ordinance, as currently implemented, is that it discriminated unfairly against the SITR plan to build houses on the property.
His ruling was singular: the adaptation of the ordinance was discriminatory because it was intended to stop Mr. Schlesinger, and only Mr. Schlesinger. And that it's focus was only on his property and no other property.
His ruling makes Mr. Schlesinger happy, and also relieves the City of Escondido of the threat of a colossal damages obligation from the simultaneous 'takings' suit, that some have said could bankrupt the City.
But Judge Maas is wrong!
On one very fundamental question, he has it wrong. He states that 'SITR did submit it's application and project plans to the City before the ordinance was adopted.'
That did not happen....
How can an ordinance, that was written prior to the submission of any formal project plan, be considered discriminatory because it singled out a project that for all intensive and legal purposes did not yet exist!
Yes, it does mention that the threat of a housing project, as described by Mr. Schlesinger, was unacceptable to the community. But it is also very clear that the intent of the ordinance was to restore the promise and covenants implied by Resolution 389 that declared, under the conditions of the Escondido City Planning Commissions Special Use Permit process to allow for reallocation of plots for homes to provide the space required by the centerpiece golf course. The intent of the measure could not be more well defined: restore the overall design and historical continuity of the Country Club Community by reinforcing the guiding principles and use permits that were originally issued, and that current homeowners were under the assumption still existed, when they made decisions to purchase their homes in the community.
Certainly the homeowners were blindsided when they were made aware that the property was still under a dubious zoning blanket allowing for residential density of seven residences per acre when SITR closed the course and announced plans to build homes. The initiative was in response to that threat, but it was worded in such a way that it did not single out SITR, it was intended to prevent ANY housing from EVER being allowed on the property, which would be consistent with the original intent of the community plan.
Remember, SITR had not submitted any formal housing plan prior to the ECHHO initiative being submitted to the council for consideration! So it is impossible to make the connection that the Council was only interested in picking on SITR.
Judge Maas ruled that the action of the Council was unconstitutional because it singled out only the property that Schlesinger owns and wants to redevelop, and that the action of the Council was specifically intended to stop his project, and no other projects anywhere else in the city. Since the initiative refers over and over again to reinforcing and supporting conditions that were defined by an earlier legal process specific to the green belt only, it had to be directed at that piece of property only. The Council did not just pick this piece of land out of thin air and tell the owner, 'sorry, we want it to remain green belt!' The initiative was intended to clear up disputed land use issues, and as it was intended to be placed before the voters, it is a perfectly legal way for the Citizens to affect changes to the General Plan.
He did not specify that the intent, or the process by which the citizens initiative was qualified to be placed on the local ballot, was in any way unconstitutional or biased against any specific person or entity. In fact, he said that the citizens initiative, in and of itself, was consistent with the letter of the law requiring cities to conform to a general plan, and that in order to amend those plans, certain legal protocols must be met.
The Citizens Property Rights Initiative met all of those conditions.
So he said that the legality of the initiative itself was not relevant. The ruling is that the City Council acted illegally when it used the initiative to unfairly rezone Mr. Schlesinger's property because it was intended to stop him from redeveloping the old golf course. That action was discriminatory, and therefore the Judge vacated the ordinance. He is saying that the adaptation of the legally constituted initiative, was a malicious act, in violation of the California State Constitution because it was used to deprive a legally entitled owner from actuating a legally conforming project.
Judge Maas spelled out how the initiative itself was consistent with the nature and intent of the public initiative process including the consideration of economic impacts on the owner of private land. He specifically noted that the owner bought a golf course and could operate it as a golf course, though he would not be required to do so, so his claim of adverse economic impact was not relevant to the legality of the initiative or it's designation of the property as open space.
Since the Judge's ruling vacated the Citizens Property Rights initiative, the voice of the people has been muted. It was only through that initiative that the residents have been able to articulate their concerns and vision for the future of their community. The point of the initiative was to 'Just Say No' to any form of redevelopment that increased density, traffic, water use, and pressure on diminished public resources. Simple as that, we just don't want the land to be paved over! Period.
The very reason that California has a ballot initiative process, which is very unique among states, is to empower voters to have a say where previously only rich, influential, connected parties or businesses were historically capable of exerting influence on matters of land use, zoning, school, or other resource districts, and other major city oriented policy decisions.
California citizens wanted to get some power back into the hands of The People.
I argued during the Prop H campaign that using the initiative process to overrule local city planners decisions was bad policy because it would empower rich landowners to win building approvals without proper scrutiny and deprive voters of influence when planning protocols are subjugated to well funded political campaigns.
But the opposite is true when a citizens initiative, which the Judge declared is a legitimate channel for voters to amend General Plans, is negated by legal parsing of the language when it is clear that the intent was within legislative jurisprudence.
The Judge made it very clear that SITR was out of line in every conceivable way with their claims that the changes that would result from the initiative was inconsistent with the overriding Escondido General Plan. He said that the initiative was consistent throughout in how it dealt with open space designations, urbanization, clustering, smart-growth, regional and local parks and recreation policies, public land vs. private land open space declarations, as well as resource allocations and usage.
It is hard to understand where Judge Maas' is going with this ruling...on the surface it appears that any initiative that denies any builder from implementing project plans on private property could be vacated based on a claim of discrimination. "They are just picking on me, Judge. Since I am the only one trying to build here, and they are saying no, they are singling me out. Right?"
If you look up the definition of discrimination in the dictionary, it says it is the act of 'distinguishing between.' In order to do that, you must have two different things. Since the members of ECCHO had not yet seen a plan when they drew up the Citizens Property Rights Initiative, they were not focusing on any one development plan, but distinguishing between any plan versus no plan. That is not discrimination because it specifically does not pick on any one entity!
That is a huge distinction!
The Country Club Homeowners didn't care who, what, where or when a housing project came along, they simply wanted to maintain the semi-rural nature of the community. That's why the ordinance refers to the original Special Use Permits and the historical zoning decisions in the legislation. There is precedent for the legislation that predates Michael Schlesinger! Therefore, they were not discriminating against any specific plan or project; they just said 'No' to any kind of densification, period!
Subsequent to the Council's action, SITR decided to put their own initiative on the ballot. It consisted of a 'Specific Plan' that would amend the Escondido General Plan to include the Country Club under a Specific Plan Area. It detailed exactly what SITR would do to redevelop the property. Mr. Schlesinger claimed that the citizens wanted to have their say about what the future holds for the property, so he spent nearly a half-million dollars promoting passage of his Proposition H Initiative. It lost by a 2 to 1 margin.
It was not about giving the voters a say, it was about circumventing the City ordinance!
The voters exercised their discretion.. By voting against his Specific Plan, they did not, and could not have been discriminating, because they did not know what the alternative would be. They too just said 'No!'
They chose the unknown over the known.
Having lost at the polls, Mr. Schlesinger has turned to the courts to get his way. And though his team was denied nine out of ten claims, they were able to get Judge Maas to find a semblance of discrimination in the actions of the Escondido City Council. Just enough to clear the slate....
So the question remains, how can the residents of Escondido, in particular those who live in the Country Club area, have an impact on the future of their neighborhood? It seems that though they followed all of the rules in crafting the initiative language, in gathering signatures, and in organizing the community and rallying the voters, they have now been denied any legal stance in this court battle.
You have to ask yourself:
- Should long term residents, who have invested much of their life savings and time in the evolution of a neighborhood, have any say about how an infill, or other major redevelopment should or shouldn't take place?
- Are property rights determined simply by deed to the exclusion of community interest and impact?
- Is there a place at the table for homeowners who stand to suffer severe economic damages by unfettered new infill redevelopment?
Who holds these powers?
- Is it exclusive to multimillionaire speculators who pounce on troubled properties, turn them into whatever is currently popular, take their profits and leave town, walking away from the roadkill they often leave behind?
- Are major land use decisions still something determined in smoke-filled rooms, behind closed city hall doors, out of view of the citizens and the fourth estate?
- Why would anyone want to invest their life savings in any quiet, semi rural, neighborhood that could quickly be converted to a high density, rental oriented, urban concrete jungle in just a few short years?
OK, change is inevitable, but allowing entire, well established and desirable neighborhoods to be reinvented and substantially redefined, for the benefit of one highly influential, well connected and economically empowered individual is just bad public policy.
Perhaps the only possible vehicle for voters to have their say is to qualify a new version of the original ordinance (redact paragraph E: 'a new owner...threatens to replace it's green space with a housing project.') and resubmit it to the voters as was originally intended by ECCHO.
We did it once, we can do it again....