The Rise and Fall of Measure E
The following essay is adapted from the forthcoming book TUESDAY NIGHT FIGHTS, detailing the political and self-governance history of Thousand Oaks.
Twenty-five years ago, in 1996, Thousand Oaks voters were included as an official part of preserving the city’s general plan, as ordinances were enacted requiring voter approval of important general plan changes before becoming effective. Sponsored by the two political protagonists of the time, Linda Parks authored the Parks Initiative, a precursor to the successful Ventura County open space protection campaigns, while Andy Fox championed the city-sponsored Measure E.
The Parks Initiative, qualifying for the ballot as a citizens’ initiative and approved in June 1996, focused on the parks and open space lands within the city. Under the initiative, lands categorized as ‘Parks, Golf Courses, Open Space’ “shall remain so designated… unless redesignated to another General Plan land use category by vote of the people”,[1] and “[w]henever the City Council adopts an amendment requiring approval by a vote of the people…, the City Council’s action shall have no effect until after such a vote is held and a majority of the voters vote in favor of it.” [2]
The language of the Parks Initiative provides clarity as to when the voters must be included for changes to the general plan: if land is designated in a protected category and an amendment is proposed to designate that land otherwise, the amendment does not take effect until approved by the voters.
By defining the approvals that require voter concurrence plainly and specifically, the Parks Initiative established very effective protections. The clarity of language ensures that landowners and the public know the process for making any such changes. While not a prohibition, such a requirement lowers the likelihood of any such proposals being made, making for an effective measure for protecting open space.
Just weeks after enacting Parks’ open space initiative, the Council placed its own measure on the November 1996 ballot, which was approved by voters that fall. The ordinance now known as Measure E also proved effective as a tool in curbing development pressures within Thousand Oaks, but not for the reasons Measure E advocates claim. In contrast with the Parks Initiative, the measure went through evolving tactics for implementation, based upon how interpretable the language is and the circumstances that gave councilmembers opportunities to modify their interpretations.
Measure E requires that “[a]ny amendment which cumulatively provides a net increase in the maximum number of residential dwelling units which could be permitted under the proposed land use designation” or “[a]ny amendment which cumulatively provides a net increase in the land designated ‘commercial’” requires voter approval.[3] The challenge: what does “cumulatively provides a net increase” mean?
When Measure E was introduced to the Council, Mayor Fox, the measure’s primary advocate, provided a way forward in a memo for such “minor changes in the General Plan…if these changes might mean that the residential and/or commercial uses might be increased. If the Council chose to do this, they would be required to do one of two things: (1) concurrently reduce densities and commercial space elsewhere in the City or (2) submit the proposed General Plan changes which would increase the City’s ultimate population or commercial areas to the voters.”[4]
To grant flexibility under Measure E without seeking voter ratification, the City Council could, for example, increase acreage designated as commercial in one part of the city, as long as an equal or greater amount of acreage were decreased elsewhere, thus resulting in no net increase of commercial acreage. If this were done, then according to Fox, the general plan amendment would not need voter approval to become effective.
Based on Fox’s 1996 memo, these offsetting shifts in residential density or commercial acreage were anticipated to occur “concurrently” — at the same time. In the succeeding years after Measure E’s passage, no issues arose regarding the measure, as only amendments decreasing residential or commercial lands were approved by the Council.
The first true test of Measure E came in 2001, when former city councilmember and county supervisor Ed Jones sent a letter to the city representing Jerry Brodecky, owner of Thousand Oaks Toyota on Thousand Oaks Boulevard. Jones proposed that a portion of Brodecky’s property, about 1.2 acres, be redesignated from “medium density residential” to “commercial” to accommodate the dealership’s expansion. Noting that this could trigger Measure E, Jones proposed that “an alternative to a vote of the people be invoked in which it is demonstrated that an equivalent amount of land within the city has been rezoned by removing it from commercial since Measure E became law…”[5] Jones went on to recommend that this could be accomplished with land that “has been or is in the process of being removed from commercial and use that acreage to demonstrate that there will be no net increase…”[6]
Regarding the request, City Attorney Mark Sellers advised the Council that “[i]f land has been removed from the ‘commercial’ designated [sic] since 1996, and no equivalent offsetting increases have occurred, there is a net reduction which can be reallocated.”[7] A further memo from the City Attorney’s office advised that “[t]he Council controls how it will reallocate those past reductions in acreage of commercial uses.” [8] The Council initiated the general plan amendment for Brodecky Toyota in 2003,[9] but also established an Ad Hoc General Plan Review Committee to evaluate the “applicability of Measure E to banking of commercial acreage and residential density”.[10] The Ad Hoc General Plan Review Committee comprised two members of the City Council, Mayor Pro Tem Bob Wilson and Councilmember Claudia Bill-de la Peña, and two members of the Planning Commission, Commissioner Tom Glancy and myself.
In the committee’s report back to the Council, one of the interpretations included processing “a simultaneous increase/decrease in commercial acreage or residential density” as a “single General Plan amendment, [which] could involve several properties” and that “[t]he scope of ‘net’ change could be clearly assessed by comparing/balancing the offsetting loss/gain in acreage or density among the properties.” The other interpretation involved creating a “bank” for any “reduced commercial acreage or the number of reduced residential units resulting from [a General Plan] amendment…approved since Measure E was adopted…” and that “[a] future request… to increase commercial acreage or residential units elsewhere within the City’s Planning Area could draw from the ‘bank,’ reallocating the reserved acreage or units to another site or sites… This option would permit greater flexibility… in that the acreage or units could be reallocated as needed, without going to the voters for approval.”[11]
Councilmember Bill-de la Peña and I supported the interpretation of evaluating each general plan amendment on its own, consistent with how Measure E was originally proposed assuming “concurrent” increases and decreases; Mayor Pro Tem Wilson and Commissioner Glancy backed the banking option, which aligned with the preferred interpretation from the City Attorney’s office, based on previous memos. Given the language of Measure E and the split among the committee, I recommended that we propose options for interpretation to the Council, as opposed to presenting a split recommendation; we all agreed that these were the options for interpreting the measure, even if we didn’t agree on which interpretation was preferred. The Council directed the City Attorney’s office to provide a deeper legal analysis, which was reported back to the Council the following year.
City Attorney Mark Sellers stepped down from his post after 21 years of city service in 2004,[12] and Amy Albano began her tenure as his permanent replacement in 2005.[13] By mid-year, City Attorney Albano penned a formal eight-page legal opinion, guiding the city’s interpretation of Measure E. In effect, the banking interpretation would stand, allowing previous reductions in residential density or commercial acreage to be used to balance future increases.
In her analysis, Albano said that the Council should not consider reductions as being stored in a “bank” but rather a baseline to judge an amendment against.[14] She did argue, however, that some density reductions, even though approved after Measure E’s passage, shouldn’t be used to reduce the baseline, as these amendments were merely “ratifying current conditions” in the city and didn’t represent actual decisions by the Council to reduce density that could be reallocated later, since “to do so does not further the purpose of Measure E.” [15] Specifically, two “housekeeping amendments” that “in total would reduce the commercial baseline by 4 acres and the residential dwelling unit baseline by 4,102 dwelling units”[16] were to be excluded as reductions eligible for reallocation.
The Council accepted Albano’s analysis, excluding these amendments merely “ratifying current conditions”, and as a result, the Council’s 2005 policy established a baseline of reductions for future reallocation of 1 acre for commercial use and residential density allowing for 368 units. From this understanding, the Brodecky Toyota proposal was modified to reduce their commercial acreage request from 1.2 acres to 1 acre so that a popular vote was not needed.[17]
This implementation became the governing interpretation of Measure E for the next decade, establishing a political environment where only requests for minor development increases were considered acceptable. Any sudden and sizable increases in residential development without voter approval would run counter to the stated intent of Measure E per the measure’s ballot argument that voters “should have the power to vote yes or no when significant changes to the General Plan are proposed.”[18] Thousand Oaks had become a mature city where the annual development of residential units had slowed significantly; for example, only 137 residential development allotments were approved in 2005. A decade later, creative interpretations of Measure E were revisited.
In 2015, former City Attorney Sellers, who helped draft Measure E, was now a member of the Thousand Oaks Boulevard Property Business Improvement District (BID), which represents a group that owns much of the property on Thousand Oaks Boulevard, including the City of Thousand Oaks. Sellers believed the measure should be reinterpreted to allow more development without a citywide vote.[19]
Regarding Albano’s memo guiding the Council’s 2005 implementation of Measure E, Sellers said in an interview with the Thousand Oaks Acorn that “(Albano) made an interpretation that (she said) was ‘in the spirit of Measure E.’ I and a number of other people feel that was a wrong interpretation.”[20]
“What we have to do is get the city to take a new look at it. The BID would obviously love to have the new interpretation,” Sellers said. Under a new interpretation, Sellers said, “I believe the cap can be higher. In my 21 years as city attorney, I never saw a project that wasn’t underdeveloped (with) less homes than was contemplated by the zoning or the General Plan. Everything in this community has been underdeveloped. It’s a goal to use that flexibility.”[21]
Two years later, pursuing this newly conceived flexibility, the city conducted an analysis to identify areas where general plan changes could be made to create more units for reallocation and future development without seeking voter approval. In the study, city staff identified 5,400 units that were “theoretically accessible for reallocation” as they were residential areas that “were built at a density that is within an entirely lower residential land use category.” [22] As an example, a development may have been designated on the general plan as medium density residential, allowing for 4.6 to 15 units per net acres; however, if the property were ultimately developed at 3 units per net acre, the general plan designation could be reduced to low density residential, which allows between 2 to 4.5 units per net acre, and the difference in residential densities can be used for reallocation. The problem: such density reductions seem to be exactly the type the 2005 Council interpretation excluded from reallocation as “ratifying current conditions” — existing development at a lower residential land use category.
Although a Thousand Oaks Acorn editorial urged the Council to “[r]eject the amendment and stick with what the majority of residents feel they were promised: the right to vote ahead of the demands of developers”,[23] the Council moved ahead and amended the general plan to increase the available residential density balance by 1,088 units.[24]
Continuing the evolving interpretations of Measure E since its inception, the 2018 Council approvals raise further questions about whether the voters will be involved in the city’s general plan decision-making as intended; based on the differing political climates in 2005 and 2018, amendments of the same type — those “ratifying current conditions” — now seem to be treated differently. Under the 2005 interpretation, the 2018 amendments would not be available for further allocation; however, if 1,088 units are indeed available for reallocation, this could open up the amendments excluded in 2005 to be available as well, leading to a potential increase of an additional 4,102 units.[25]
This could easily be interpreted as a “significant change” where the voters “should have the power to vote yes or no”[26] on such a proposal. The general plan reductions approved in 2018 may not yet technically run afoul of the voter approval requirements; the real test will come when the Council entertains increases that attempt to tap into this arguably questionable reservoir of residential density.
The successes of voter approval measures are only as good as the text of the measures themselves. If a measure’s language is clear and precise such as with the Parks Initiative, the voters’ will is protected; however, if the language is vague, the measure could potentially provide no protection at all, becoming dependent on the interpretations and decisions of a narrow council majority.
In the end, the effectiveness of Measure E as a growth control instrument has merely paralleled the desire of the measure’s advocates to control growth. If a Council majority chose to argue against a particularly intense development, opponents could point to Measure E as a politically convenient limitation. However, if the Council wanted to find ways to allow for growth, creative ways to navigate through Measure E’s language are explored, interpreting away the right to approve significant changes the voters thought they were guaranteeing by passing Measure E.
When restrictions are placed on the Council on what they can and cannot do, they can come in two forms: restrictions that are so tight that no one tests the measure, and restrictions that are so loose that they can always be interpreted around when convenient. When it comes to including the voters in city decisions, the Parks Initiative qualifies as the former, and Measure E serves as the latter.
As we consider significant changes to the city’s general plan, we should keep the rightful place of Thousand Oaks voters in approving these changes top of mind. Honoring the voters’ intent is critical to healthy democratic governance.
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[1] Thousand Oaks Municipal Code, Section 9.2.204(b)
[2] Thousand Oaks Municipal Code, Section 9.2.204(d). Exceptions exist in subsection (c) if the redesignation is deemed necessary to avoid an unconstitutional taking of a private landowner’s property.
[3] Thousand Oaks Municipal Code, Sections 9.2.203(b)(2) and (3), as listed. However, research for this book indicates that the ordinance approved by the Council codifying Measure E contains errors. The current ordinance listed in the Municipal Code appears to be an older version of Measure E and not the version presented to the voters for approval.
[4] Memo to City Council from Andrew P. Fox, Mayor, “Subject: Growth Control,” April 22, 1996.
[5] Memo to City Council from Mark G. Sellers, City Attorney, “Subject: Request of Mr. Brodecky on Thousand Oaks Toyota Expansion,” June 5, 2001. Attached letter from Ed Jones.
[6] Ibid.
[7] Memo to City Council from Mark G. Sellers, City Attorney, “Subject: Request of Mr. Brodecky on Thousand Oaks Toyota Expansion,” June 5, 2001.
[8] Memo to Chris Ronneberg, Associate Planner, from Nancy Kierstyn Schriener, Assistant City Attorney, “Subject: LU 2002–226/Brodecky — Applicability of Measure E,” August 20, 2003.
[9] Minutes of the Thousand Oaks City Council, September 2, 2003.
[10] Minutes of the Thousand Oaks City Council, September 16, 2003.
[11] Memo to City Council from Ad Hoc General Plan Review Committee, “Subject: 1. Applicability of Measure E Limitations on General Plan Amendments that increase Commercial Acreage or Residential Density. 2. Special Use Permits for Certain Commercial Uses in all Commercial Zones,” June 22, 2004.
[12] Minutes of the Thousand Oaks City Council, January 27, 2004.
[13] Minutes of the Thousand Oaks City Council, December 14, 2004.
[14] Memo to City Council from Amy Albano, City Attorney, “Subject: Applicability of Measure E Limitations on General Plan Amendments That Increase Commercial Acreage or Residential Density,” June 14, 2005.
[15] Memo to City Council from Amy Albano, City Attorney, “Subject: Measure E Opinion,” June 6, 2005.
[16] Ibid.
[17] Minutes of the Thousand Oaks City Council, July 26, 2005.
[18] Argument in Favor of Measure “E”, Sample Ballot and Voter Information Pamphlet, County of Ventura, City of Thousand Oaks, General Election, November 5, 1996.
[19] Bitong, Anna, “Measure E: under the microscope,” Thousand Oaks Acorn, February 5, 2015.
[20] Ibid.
[21] Ibid.
[22] Memo to Andrew P. Powers, City Manager, from Mark A. Towne, Community Development Director, “Subject: Measure E Residential Baseline,” October 24, 2017.
[23] “Give residents the vote they voted for,” Thousand Oaks Acorn, April 19, 2018.
[24] Minutes of the Thousand Oaks City Council, April 24, 2018.
[25] Memo to Andrew P. Powers, City Manager, from Mark A. Towne, Community Development Director, “Subject: Measure E Residential Baseline,” October 24, 2017.
[26] Argument in Favor of Measure “E”, Sample Ballot and Voter Information Pamphlet, County of Ventura, City of Thousand Oaks, General Election, November 5, 1996.
