Port of San Diego Files Lawsuit Challenging Nov. 4 Ballot Measure To Redevelop the Tenth Avenue Marine Terminal (Update)

Tuesday, 05 August 2008
Contact: John Gilmore (619) 686-7206, (619) 341-5684; Irene McCormack (619) 686-6462, (619) 990-3576

The Board of Port Commissioners has voted unanimously to file a lawsuit to stop a Nov. 4 ballot measure that would amend the San Diego Unified Port District's master plan by allowing such uses as hotels, restaurants and a sports venue at the Tenth Avenue Marine Terminal in San Diego.

The suit, filed in Superior Court today, asks for a temporary and permanent order preventing the initiative from going on the ballot.

• Full text of Port of San Diego lawsuit (5.5 MB)
  
• Update: Full text of  The Port of San Diego Marine Freight Preservation and Bayfront Redevelopment Initiative (2.88 MB)

"After having reviewed the numerous illegalities of the Initiative, the Commission immediately authorized the filing of this action to halt the placement of this Initiative on the November ballot. The purpose of this action is to prohibit Respondents from taking any additional steps to place the Initiative on the ballot for the November 4, 2008, election. The Port District also seeks an order of this Court declaring that the Initiative is void as it is unlawful, invalid and unenforceable as a matter of law," the lawsuit states.

In approving the motion to legally challenge the initiative, Port commissioners expressed concerns that the initiative, if approved, could irreparably harm the Port District and its maritime operations.

Michael Bixler, the Board of Port Commissioners Chairman, said the lawsuit was filed "because we don't want to be forced to comply with an initiative that we believe to be illegal. I am outraged that this misleading initiative will be voted on by the electorate at all."

Commissioner Stephen Cushman added, "As chairman of the maritime committee, I'm getting sick and tired of defending this tremendous piece of property.
"The proponents have a hidden agenda. We don't know what these people are doing. It is dishonest ballot-box legislation. It is misleading and it is wrong," he said.

The lawsuit was filed after the board, at today's regular Port Commission meeting, agreed to place the initiative on the November ballot. The initiative, "The Port of San Diego Marine Freight Preservation and Bayfront Redevelopment Initiative," was proposed by San Diego Community Solutions, LLC. Last month, the county Registrar of Voters determined the group had gathered the necessary number of valid voter signatures to place the measure on the ballot.

In May, the Board voted unanimously to oppose the ballot initiative citing the threat to the Port's maritime operations, which includes shipments of steel used in shipbuilding and repair, windmill equipment, generators, building material such as sand and cement and fresh fruit, including millions of bananas brought to the Tenth Avenue Marine Terminal by Dole Fresh Fruit.

"The Board and shipping experts do not believe that sports venues, shopping centers and hotels can be built on top of a working marine freight operation," Bixler said at a news conference at the Port Administration Building.

Not only is the initiative a threat to maritime, Bixler said, but "if this land use change does occur, very shortly after that, we will see the United States Navy begin to reassess its commitment of ships within San Diego Bay because there will not be enough ship repair building, building or maintenance capacity here to support and meet the requirements to homeport those ships here.

Joining his colleagues in the legal challenge was Commissioner Michael Najera, who said, "I appreciate the political process and the initiative process. I don't appreciate the deceptiveness of this initiative. I was even deceived. I watched as citizen after citizen was approached to sign a petition thinking it was sponsored by the Port of San Diego. I think if these citizens knew the truth behind this, they wouldn't have signed."

The lawsuit cites several reasons for the Port's challenge of the ballot measure, including the issue of state preemption, security, incompatible land uses, severe adverse impacts on maritime operations and the threat to current and future contracts.

In the court petition, the Port said the initiative improperly removes from the Board its exclusive legislatively-granted authority to amend the master plan and improperly places that authority in the hands of the electorate.

Other effects include:

• The initiative misleads the voters by purporting to protect marine freight uses at the terminal, while introducing incompatible uses and allowing the uses to invade areas limited to marine freight.
• The measure improperly interferes with powers exclusively delegated by the California Legislature to the Port District.
• It creates a cloud of uncertainty over the future uses of the Tenth Avenue Terminal and harms contractual relationships between the Port District and its tenants and shippers.

The initiative's proposed uses would severely impair the Port District's ability to comply with security regulations.

"By purporting to wrest authority from the Commission over the Public Trust Lands and the Master Plan - both legislatively-declared areas of statewide concern - the Initiative directly conflicts with the carefully crafted scheme established by the Legislature in the Port District Act," the Port's court petition said. "The Initiative also conflicts with a pervasive legislative scheme for the regulation of ports and tidelands established in the Port District Act and the Coastal Act. On those bases, the Initiative is preempted by state law and void."

Although the Port of San Diego is not the sponsor of the initiative, it is required by the Elections Code to pay the election cost. The Board voted to place a summary of the initiative on the ballot, which is estimated to cost $435,000. Had commissioners voted to place the entire measure that takes up to 25 pages, it could have cost an estimated $885,000.

A court hearing is expected to be held soon on the Port's challenge to the initiative. Should a judge deny the Port's request, voters in the five cities that are members of the Port -- San Diego, National City, Chula Vista, Coronado and Imperial Beach - would cast ballots on the measure.

The Board of Port Commissioners and the Port contend such uses as hotels, restaurants and possibly a sports venue would be incompatible if placed on the 96-acre terminal, or atop a deck, which the proponents have raised as a possibility.

The San Diego Port Tenants Association, the San Diego-Imperial Counties Labor Council, waterfront businesses and key industry groups such as the Pacific Merchant Shipping Association and The California Trade Coalition are opposed to the initiative because they fear jobs could be lost.

"San Diego's maritime-related industrial base is important to the international trade community and an important source of local employment," said The California Trade Coalition in a letter to the Port. "Were the incompatible, non-maritime uses envisioned in the initiative implemented, the working waterfront in San Diego would be jeopardized."

The Pacific Merchant Shipping Association, which is a trade association representing marine terminal operations and ocean carriers, said the initiative "negatively impacts a public trust asset for the benefit of a private developer."

The association added: "The initiative raises a number of critical issues: diminishing San Diego's and California's role as a trade gateway, loss of maritime and logistics jobs, exacerbate port security concerns and loss of public trust land for private development.

Lorena Gonzalez, the CEO of the Labor Council said that the initiative would mean the demise of more than 1,800 industry and trade jobs that have an average annual pay of $54,000. These jobs would be replaced by low-paying, service sector jobs with an average annual pay of $26,000 that wouldn't support the cost of living in San Diego.

The San Diego Military Advisory Council (SDMAC), a nonprofit corporation representing the common business of the military, its quality of life and defense industry in San Diego, also opposes the initiative.

"This plan to commercially redevelop the Tenth Avenue Marine Terminal affects an area much larger than San Diego. It endangers our national security interests," said Tom Caughlin, the council's president. "The Port of San Diego is one of only nine Federal Strategic Port Facilities used by the Department of Defense. It allows the U.S. Military to use the pier for military load-out operations. Sometimes the Port receives very short notices as to when these operations will occur. Eliminating a working marine terminal that is crucial in the movement of thousands of tons of supplies to our men and women overseas would have drastic consequences."

Other opponents included the San Diego Regional Chamber of Commerce. Phil Blair, its Chairman, stated that in addition to being a valuable source of local employment, the Tenth Avenue Marine Terminal is a crucial part of our city's economic engine. It is an irreplaceable link between our city and international suppliers of raw materials, finished goods and equipment.

"The Board of Port Commissioners did not create this initiative, despite the initiative's name, and we strongly oppose it," Bixler said. "The Board will continue to educate the public about the value of maritime to this region. You may not see what happens at the marine terminal in question, but it is important in our daily lives."