What is unexpected, though, is tucked way down at the very end of this Agenda Report. Found there is a July 2nd signed letter from Billy Shields stating that the November vote on his project should be a true Measure V vote. Apparently if you are a developer who is sinking millions of dollars into a project as complex as this, the last thing you would want to do is associate yourself with anything of dubious legality. Quite obviously getting into bed with some of the dicey notions of this City Hall, or our preternaturally opaque City Attorney, could put the Kensington into some legal jeopardy should something that is not called for by the law be folded into the mix.
Billy isn't that sort of gambler it seems. But ask yourself this, would you gamble your company's fortune on anything coming out of this City Hall?
The City has maintained all along that the option of deciding whether or not the Kensington is compliant with Measure V is in the hands of the City Council. This is, of course, not entirely true. Most of that matter is already covered by Measure V. The City Council is not a judicial body, and their powers to interpret are pretty limited. They can look at the evidence and see if everything fits, but they need to follow the letter of the law when doing so.
Measure V is very clear on the issues involved, including the matter of what constitutes a dwelling unit. The semantics the City Attorney has been engaging in here over the last few months are irrelevant to the Kensington situation, and hardly the kind of speculation that should lead anyone to question the legal standing of our voter approved law.
That is a matter that would, if it ever gets to that point, have to be decided in a Court of Law. Which is where it will likely go should the City Council somehow decide that it has the power to flaunt Measure V through the use of creative writing. Otherwise the law stands as it was written and must be followed.
Sadly, the dubious fiction that Sierra Madre Mayor Josh Moran and anyone irresponsible enough to follow him somehow has the legal power to arbitrarily change an existing and voter approved law through the power of parsing lives on in Elaine Aguilar's Agenda Report. Here is how that is worded in the Executive Summary:
If the City Council determines that the project is in compliance with Measure V, it is recommended that the City Council order the legislative components be placed on the November 2012 ballot for voter action.
If the City Council determines that the project is not in compliance with Measure V, it is recommended that the City Council order an amendment to Measure V be placed on the November 2012 ballot for voter action for the purpose of permitting an assisted living facility project as an exception to the Measure V density requirement of no more that 13 dwelling units per acre as allowable use in the Downtown Central Core.
Obviously missing here is what exactly the nature of the "voter action" would be should the City Council decide that it has the unilateral power to overthrow Measure V and declare the decidedly non-compliant Kensington project to be compliant. I can assure you that the chances are close to 100% that it would be an advisory, and therefore a vanity, ballot. The notion of a "voter empowerment act" being anathema to our current Mayor and those who enable him. Developer empowerment being far more to their liking. Even when the developer doesn't want it.
Billy Shields, whose attorney has talked to everyone involved with Measure V (including those who wrote it), has apparently decided not to throw all caution to the wind. Billy is now backing a true Measure V vote on his project. To me this is rather unprecedented. That a developer should be instructing City Hall on what is best and proper for Sierra Madre has got to be one for the record books. Here is what Billy has to say on the matter in his July 2nd letter to the City Council:
As you are aware, there has been a great deal of discussion about whether or not our assisted living suites are "dwelling units" as defined by the City's Municipal Code and Measure V. The Planning Commission determined that these assisted living suites were not "dwelling units," based on that definition, primarily because the suites were not intended as separate and independent living quarters, and do not contain kitchens. By themselves, these suites do not provide the resident the amenities needed to live for an indefinite time. The suites depend on those other services throughout the building such as the commercial kitchen, commercial laundry and many other public spaces. The Planning Commission's conclusion is consistent with the manner in which other municipalities regulate assisted living facilities. While we maintain that our assisted living units are not "dwelling units" under most land use rules, we acknowledge that reasonable minds in the community may disagree and still question the "density" of our project, as envisioned by measure V.
Please note here that nowhere does Billy actually say that the "dwelling units" in his proposed Kensington project are anything but that under Sierra Madre law. We can all certainly recall that the Planning Commission was for dwelling units before they were against dwelling units. And phraseology such as "consistent with the manner in which other municipalities regulate living facilities," and "under most land rules," while certainly true, is legally irrelevant to what is being discussed here. They have no legal applicability whatsoever to our laws. Which is why Billy comes to the following necessary conclusion:
Early in the public review process we recognized this would be a critical question for many and for that reason requested, and the City Council agreed, to place the matter before the people of Sierra Madre for a public vote. In an effort to avoid a dispute over this definition, assuming the City Council is inclined to approve this Project, we believe that it would be best for all concerned to characterize the matter before the voters in November as an amendment of Measure V. In that regard, we propose the following language for your consideration.
Proposed Ballot Language:
"The Sierra Madre Voters Empowerment Ordinance (also known as Measure V) is hereby amended with regard to two parcels only, located at 33 North Hermosa Avenue (APN 5768-019-043) and 245 West Sierra Madre Boulevard (APN 5768-019-041), to allow the development of the assisted living facility, as described in The Kensington (Assisted Living Facility) Specific Plan, dated _________, 2012, on file with the City of Sierra Madre, not to exceed two (2) stories, not to exceed 30 feet in height, and not to exceed 75 assisted living suites, comprising 60,100 square feet of space, at the 1.84 acre site."
There really are only two choices available to the City Council. Follow the letter of the law and put the Kensington on a true Measure V ballot this November, or break it. And should they decide that they can somehow get away with breaking the law on behalf of certain favored special interests, it would fall upon the people of Sierra Madre to remedy the situation.
Stealing the peoples' vote is a serious issue in the United States. After all, this is not North Korea.