State Proposition 90, "The Taxpayer Trap," Makes Quarry Rezoning a Costly, High-Risk Gamble
By Dinah Verby
Measure L would rezone the Rockaway Quarry from C-3 Commercial to allow "up to 355 residential units." Most Pacificans think this is way too many houses (more than East and West Fairway Park combined). Yet, some are tempted to vote yes because Quarry owner Don Peebles has promised a LEED certified development, with such things as a City Hall, library, etc. But these items are not on the ballot measure, and have not been written down in any legally binding way (despite Peebles' repeated pledge to do so). These "promises" remain negotiable, and will depend on the outcome of negotiations with the City Council and State agencies like the Coastal Commission.
Many people are relying on the City and/or state regulators to downsize the development. Unfortunately, Peebles will have an unfair advantage if, as predicted, state Proposition 90 passes in November, and Measure L also passes. If Prop 90 passes, any reduction in housing below 355 units could be challenged as a regulatory "taking". This means the City and/or state taxpayers could be liable for costly payouts to Mr. Peebles or any subsequent owner. The money damages would be based on the difference in value between the project as approved, and what he would legally be entitled to build under the rezoning (355 housing units).
So, if Pacifica decides that for reasons of traffic or public access concerns the housing entitlement at the Quarry should be reduced, and these homes will be worth $3 to $8 million each (according to Peebles), then under Prop 90, Pacifica would have to pay him quite a bit of money. The threat of a huge claim will frustrate Pacifica's ability to negotiate a fair deal for the community.
Ironically, the revenue Mr. Peebles claims his project would produce for Pacifica would be wiped out by litigation costs and/or payouts of compensatory damages. This is not an exaggerated scare tactic. Residential developers already routinely sue for regulatory takings when local communities attempt to reign in their plans. In the state of Oregon where a similar initiative passed two years ago, property owners have filed over 2,700 takings claims worth nearly $4 billion in compensation. In almost all of the 700 claims settled to date, governments have waived the challenged land-use regulations.
In the end, Pacifica and state agencies such as the Coastal Commission, California Fish & Game, and Cal Trans, would also be forced to give in to the Quarry developer's demands for a full build-out, and for its version of traffic mitigation (for example, concrete overpasses to gain easy entry to the Quarry), because they could not afford to pay the damages.
Both Prop 90 and Measure L are vaguely worded, so it is impossible to tell how they will ultimately be interpreted. But legal experts predict that these regulatory takings claims will be tied up in the courts for years, bringing developments and public works projects to a grinding halt. Even if the City ultimately prevailed in court, the cost in legal fees alone would be prohibitive. (Recall the millions of dollars in legal fees the city incurred from developer Keith Fromm's frivolous lawsuits.)
It is important to keep in mind that Mr. Peebles has quite a history of litigation over his development projects. He has already gathered an impressive legal team in California. He is surely aware of the windfall profits Prop 90 would generate if Measure L passes.
The disastrous impacts of Prop 90 are unbelievably broad. It would signal a sea change in statewide municipal and land use law. It would eviscerate many of our environmental and zoning protections, and drive up the cost of infrastructure projects like schools, traffic relief and flood control. It would jeopardize funds for police, fire and other critical services. Please visit www.NoProp90.com for more details.
Unfortunately for all concerned, the timing for Measure L could not be worse. With Prop 90 on the ballot, a vote for Measure L is like betting the family farm in a high stakes poker game where the casino controls all the odds. It's just not a fair playing field. We cannot afford to gamble away Pacifica's economic future.
Let's give Mr. Peebles additional time to come back with a plan for a smaller, more appropriately sized development that includes all the things he has promised, and that gives us more certainty that the development occurs in a responsible manner, with realistic traffic and environmental mitigations.
Please, vote NO on Measure L and NO on Proposition 90.
The above was printed as a guest column in the Pacifica Tribune on October 4th, 2006 and is republished here with the author's permission.