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Based on all of this work and discussion, the Chargers have concluded that it is not possible to place a ballot measure before voters in December 2015 in a legally defensible manner given the requirements of the State’s election law and the California Environmental Quality Act. The various options that we have explored with the City’s experts all lead to the same result: Significant time-consuming litigation founded on multiple legal challenges, followed by a high risk of eventual defeat in the courts.
Faulconer, Roberts, Goldsmith and their hired negotiators are trying to put together an impossible puzzle — specifically, there are three pieces that just don’t fit:
• They want to fulfill the mayor’s promise to let city of San Diego voters have the final say on a stadium plan.
• They want to prove they can have that vote this year, before the NFL makes a decision on what teams should move to Los Angeles, which for now is happening this winter.
• They want to prove they have a real proposal that will deliver a new stadium the Chargers will want — allowing the team to back off its race to Los Angeles and giving the NFL pause.
That all requires certainty. If you believe the Chargers, then you believe owner Dean Spanos and counsel Mark Fabiani want certainty. They want the city to show it has more than $500 million in the bank marked “stadium” and that the mayor and his amigos have
eliminated permitting hassles completely.
Otherwise, without that kind of certainty, the Chargers want to keep fighting for Los Angeles. After all, the worst-case scenario for the team is still the same: Another team takes Los Angeles without a solid plan in place to build a stadium in San Diego.
The city and county, however, cannot provide certainty in that short of a time period. It just can’t happen. Sure, we can have a vote in December. But the more significance the question put to voters has, the more problematic it becomes. For instance, if the ballot question simply read, “Do you want to build a stadium for the Chargers?” it might pass. But that wouldn’t mean anything at all.
With specifics come consequences. If the measure said, for instance, “Do you want to build a stadium on this site in Mission Valley?” then it might
trigger environmental impact reporting requirements. It was actually the city attorney himself who first warned about how long this would take to work out.
If they don’t do it right, well, just like the Convention Center expansion,
it could die. The city might not necessarily care about that risk if it manages to keep the team here, but the Chargers do.
The city can get around those environmental study concerns in several ways. It could
ask Assembly Speaker Toni Atkins to engineer an exemption from environmental laws for the project. But even if that happened, it would not take effect until next year — not in time for a December vote. Apparently the mayor has dropped this idea.
The city could decide that it doesn’t need to study the environmental impact of the project because it is simply replacing a stadium with another stadium. But then how would it outline for voters how the stadium would be financed? All possible financing scenarios involve some kind of condo development around Qualcomm Stadium’s current site. And that construction and permitting would, yes, require environmental impact studies.
Or maybe the land could be purchased by San Diego State, which can avoid environmental red tape? Sure! But then you’d have to work out a deal to sell a couple hundred million dollars’ worth of land to another government agency in just a couple months. No problem!
Finally, a citizens initiative could get around all of this. But someone would have to pay for it. Yes, that would likely be the Chargers. And they’re not interested in this plan without more, yep, certainty.
None of these things are impossible to work through. They’re just impossible to work through in six months.
The mayor and his amigos should have admitted this weeks ago and explained the extraordinary challenge to fans and residents rather than pretend like it was a challenge they could meet.
Update: The mayor, county supervisor and city attorney released this statement in response to the Chargers’ points (emphasis mine):
At the urging of the NFL and the Chargers, we have presented the team with multiple legally defensible options that fully comply with state environment law and would conclude with a public vote this year on a new stadium.
In addition to these options, today we provided the Chargers a new proposal to complete a full environmental impact report by October in time for a January special election – addressing the legal concerns expressed by the team.
That’s certainly a new twist. Recall Goldsmith weeks ago told me that it would take 1-2 years to do a full environmental review of a stadium project.
Couple of things to keep in mind: This would not include ancillary construction of condos, etc. That absolutely would require its own environmental review. I’m still unclear how the city could produce a full financing plan to the public for a new stadium without nearby condo development or land sales. Or why, if the ballot included those things, it wouldn’t trigger more required environmental review.
I asked the Chargers’ Fabiani to respond to the city’s claim it could produce the full review by October. Here’s his written response:
Totally impossible. A legitimate EIR, designed to withstand legal scrutiny, on a project of this magnitude will take a minimum of 12 months to prepare and have certified. If the city decides to include the ancillary development in the EIR (as they most certainly should, to avoid future legal challenges on segmentation grounds), the time frame is more like 18-to-24 months from start to certification.
If the City wants to have a January 15 vote, it would have to place the matter on the ballot by City Council vote by mid-October. And, as you know, with EIRs, there is a required public comment period. On a project like this, the minimum comment period would be 45 days. So back the 45 days out from mid October, and you would have to have the EIR finished by the end of August. It is now June 16. And you need to leave time after the public comment period to incorporate answers to those comments into the EIR.
So, what you would have to believe, if you want to believe what the City is saying, is that a full-blown, legally bulletproof EIR could be drafted in less than two months.
At least the mayor and friends are finally starting to talk about the policy behind their pronouncements. I’m sure there’ll be more soon.
This article relates to:
Chargers Stadium, Land Use, Must Reads