HomeMy WebLinkAbout09/21/2004, BUS 3 - CITY CLERK'S REPORT ON SUFFICIENCY OF REFERENDUM PETITION REGARDING RESOLUTION NO. 9590 (2004 SERIE council M fi °D
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CITY OF SAN LUIS OBIS PO
FROM: Jonathan Lowell;,tiity Attorney/Audrey Hooper, City Clerk""
SUBJECT: CITY CLERK'S REPORT ON SUFFICIENCY OF REFERENDUM
PETITION REGARDING RESOLUTION NO. 9590 (2004 SERIES)
DALIDIO/SAN LUIS MARKETPLACE PROJECT
CAO RECOMMENDATION
1. Defer action on the Referendum Petition Regarding Resolution No. 9590 (2004 Series):
a) Until the City Clerk has determined the final status of the Referendum Petition
regarding Ordinance No. 1449 (2004 Series) related to the Dalidio/San Luis
Marketplace Project; and
b) Until a Referendum Petition regarding Ordinance No. 1452 (2004 Series) related to
the Dalidio/San Luis Marketplace Project has been submitted and its final status has
been determined by the City Clerk.
2. Direct staff to prepare an ordinance providing for conducting an all-mailed ballot election.
DISCUSSION
Certification of Referendum Petition against Resolution 9590 (2004 Series)
On August 2, 2004, a petition for a referendum against Resolution 9590 (2004 Series) (approval
of a General Plan amendment in conjunction with the San Luis Marketplace Development
Project) passed by the City Council on July 7, 2004, was delivered to the Acting City Clerk.
Subsequently, on August 5, 2004, the Acting City Clerk, after conducting the prima facie review
in accordance with State elections law, certified the Referendum Petition as officially filed.
The petition consisted of 147 sections with a "raw" count of 4,803 signatures. A random
sampling of 500 signatures was completed pursuant to Elections Code Sections 9115 and 9211.
Of the 500 signatures checked, 73% were determined to be valid. When this percentage was
applied to the 4,803 signatures presented, the total was statistically more than the 2;330
signatures required to qualify the petition based on the random sampling verification. The
Clerk's Certificate of Results of Examination of Initiative Petition is attached (Attachment 1).
Because the petition qualifies, the Council is compelled to either rescind its earlier action
approving Resolution No. 9590 (2004 Series) or place the measure on the ballot.
A petition for a referendum against Ordinance No. 1449 (2004 Series) (approval of a prezoning
and preliminary development plan in conjunction with the San Luis Marketplace Development
Project) was submitted to the City Clerk on September 1, 2004. On September 9, 2004, the City
Clerk, after conducting the prima facie review in accordance with State Elections law, certified
this second Referendum Petition as officially filed. This petition consisted of 123 sections with a
"raw"count of 4,695 signatures. A random sampling of 500 signatures is currently being
3 - 1
Certificate of Sufficiency of Referendum Petition
Page 2
checked, after which a determination will be made by the City Clerk as to the sufficiency of this
second petition. The deadline for checking the signatures and determining the sufficiency of this
petition is October 21, 2004.
The deadline for the submittal of a petition for a referendum against Ordinance No. 1452 (2004
Series) (Approval of a Development Agreement and related documents in conjunction with the
San Luis Marketplace Development Project) is September 16, 2004, prior to September 21s`
Council meeting. The prima facie review, if such a petition is submitted, will be conducted as
soon as possible thereafter. The status of this possible third petition will not be known until after
the City Council's September 21" meeting. However, if this referendum petition is submitted by
September 16 and, following a prima facie review by the City Clerk it is acknowledged as
officially filed, it is probable that the random checking of the signatures will be complete by the
first week in November.
Ordinance Providing a Procedure for an All-Mailed Ballot
At a previous City Council meeting, Council directed staff to consider the potential for utilizing
an all-mailed ballot procedure for conducting an election, should one ore more petitions qualify
for a vote.
Article III, Municipal Elections, Sections 301 and 303 of the Charter of the City of San Luis
Obispo, provide the Council with the authority to, by ordinance, enact procedures related to the
conduct of special municipal elections. Staff is seeking direction from the Council to prepare an
ordinance that would enable the City Clerk to take those steps necessary to conduct an all-mailed
ballot election related to the Referendum Petition regarding Resolution No. 9590 (2004 Series),
as well as to the Referendum Petitions regarding Ordinances Nos. 1449 and 1452 (2004 Series),
should either or both of these latter petitions be certified as sufficient.
The process for the all-mailed ballot election is similar to that currently implemented for
absentee voters. A ballot, voter information pamphlet, instructions and a return envelope are
mailed to the voter. In considering this option, staff sees several advantages, as outlined below.
Increasing Voter Turnout
One of the major challenges facing elections today is low voter turnout. In California, the
Secretary of State established a Voter Participation Unit prior to the 1998 State Elections, whose
mission is to reach out to all eligible citizens in California through a variety of programs and
partnerships with the private sector to encourage the highest levels of voter registration possible.
In addition to voter education programs, voting by mail has been promoted as a tool to increase
voter turnout. Consequently, the percentage of absentee voters Statewide increased from 2.63 in
1962 to 27.09 in 2002.
All-mailed ballot elections eliminate barriers that can keep people from getting to the polls.
More than ever, convenience is becoming a major factor hindering voters from voting at polling
sites. The all-mailed ballot would, therefore, provide greater convenience to the voter. Below is
a summary of additional considerations related to an all-mailed ballot election. /� /���
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Certificate of Sufficiency of Referendum Petition
Paae 3
Increased Integrity of Elections Process
Voters at polling places are not required to show identification, nor are their signatures checked
against original registration affidavits. In mail ballot elections, signatures are required on all
returned ballots, and voter registration and signatures are verified before the ballots are counted.
Each returned ballot is accounted for by address and name to eliminate any possibility of
duplicate votes.
Elimination of Facilities and Poll Worker Recruitment Problems
The process of locating appropriate polling locations and recruiting poll workers is especially
time and labor intensive. It involves obtaining the list of locations and pool of workers used by
San Luis Obispo County. The election for the City of San Luis Obispo is smaller than a
Countywide election and will necessitate the consolidation of precincts and polling location
changes, which has the potential for confusing voters. Even with fewer polling sites, the
challenge remains to locate a site in each precinct which provides for disabled access, sufficient
parking, sufficient space for polls and with the amenities needed for precinct workers without
disruption to the normal use of the site.
It has been an increasing challenge to recruit qualified election officers.. Cancellations by poll
workers are not uncommon due to illness or a change in plans, many of which happen at the last
minute, including on Election Day.
Improved Quality of Voter Records
Mail ballots may not be forwarded and are returned to the City Clerk by the U.S. Postal Service.
These returned ballots would be used to purge the records of voters who have moved or are
deceased.
Voter Fraud
Voter fraud, which in California is punishable as a felony, is probably the largest concern in mail
ballot elections. As a result, safeguards have been put in place to protect against any possibility
of fraud. Most jurisdictions that use the mail ballot system contend it is safer from fraud than
polling place elections because mail ballot elections have both a signature identification check
and a residential address check. There is no such safeguard in polling place elections.
FISCAL UYIPACT
At this time, the estimates for the cost of an all-mailed ballot election are preliminary. To obtain
this information, staff contacted the San Luis Obispo County Registrar of Voters and the firm of
Martin and Company, Co., elections vendor. The estimate for the vendor's services for a mail
ballot election is approximately $30,000, similar to the cost for conducting a polling place
election. While a mail ballot cost would not necessitate paying for precinct workers, the cost of
the postage would offset that savings.
3 -3
Certificate of Sufficiency of Referendum Petition
Page 4_
Cost estimates from the San Luis Obispo Registrar of Voters for either an all-mailed ballot
election or a polling place election were not available at the time of preparation of this report.
Staff will make that information available at the City Council meeting.
The City Clerk's office does not have the capacity to conduct an election without assistance, the
City of San Luis Obispo has historically contracted with the San Luis Obispo County Registrar of
Voters' (ROV) office to assist with this responsibility. Some of the services provided by the
ROV have included locating polling places, hiring and training precinct workers, preparing and
mailing voter information pamphlets and ballots, serving as the return center on elections night,
and counting the ballots.
Because it is likely that the County will only be able to provide minimal services for a special
election for the City of San Luis Obispo during the first quarter of 2005, staff is pursuing other
options, including utilizing the services of an elections vendor or former City Clerks who have
become elections consultants. Additional information regarding these options will be provided
to Council as staff proceeds through the referendum process.
ALTERNATIVES
Referendum Petition Regarding Resolution No. 9590 (2004 Series)
Should Council choose not to defer action on the Referendum Petition Regarding Resolution No.
9590 (2004 Series), the following are alternative options:.
1) Repeal Resolution No. 9590 (2004 Series). This action would have the effect of rendering the
City Council's other approvals with regard to the San Luis Marketplace Development Project
moot.
2) Direct staff to prepare the required resolutions establishing the date of an election to submit a
measure for the referendum petition related to Resolution No. 9590 (2004 Series) to the voters,
setting priorities for written arguments and directing the City Attorney to prepare the Impartial
Analysis, and providing for rebuttal arguments.
This alterative is not recommended because it would not encompass the Referendum Petitions
regarding Ordinance Nos. 1449 and 1452, the status of which is still uncertain at the time of the
September 21St City Council meeting.
Ordinance Providing for the Conduct of an All-Mailed Ballot Election
Should Council choose not to direct staff to prepare an ordinance related to an all-mailed ballot
election, the City Clerk's office will proceed with the steps necessary to conduct a polling place
election, as directed by the City Council.
ATTACHMENT
Attachment 1 - Clerk's Certificate of Results of Examination of Initiative Petition
G:\702-01 Sections\ELECTION 2004\EL.ECTION STAFF REPORTS\Certify Referendum Petition 1 2004.doc 3 - 4
ATTACHMENT i
City of San Luis Obispo
CERTIFICATE OF RESULTS
OF EXAMINATION OF REFERENDUM PETITION
I, AUDREY HOOPER, City Clerk of the City of San Luis.Obispo, California, hereby certify:
1. That a petition for a REFERENDUM AGAINST A RESOLUTION PASSED BY THE
CITY COUNCIL OF THE CITY OF SAN LUIS OBISPO, CALIFORNIA,
RESOLUTION NO. 9590 (2004 SERIES), was acknowledged as officially filed with this
office on August 5, 2004.
2. That said petition consists of 147 sections with a raw count of 4803 signatures (according
to the County Elections Office).
3. That each petition section contains signatures purporting to be the signatures of qualified
electors of this City.
4. That each section contains an Affidavit of Circulator purporting to be the affidavit of the
person who solicited the signatures, and containing the dates between which the
purported qualified electors signed this petition.
5. That the affiant stated that he or she had solicited the signatures upon that section, and
that all of the signatures were made in his or her presence, and that to the best of his or
her knowledge and belief each signature to that section was the genuine signature of the
person whose name it purports to be.
6. That after the proponents filed this petition the signatures were verified pursuant to
Elections Code Sections 9115 and 9211 by examining the records of registration in this
city,current and in effect at the respective purported dates of such signing, to determine
what number of qualified electors signed the petition, and from that examination I have
determined the following facts regarding this petition:
Page 1 ��
Facts
A. Number of unverified signatures filed by proponent 4803
B. Number of signatures verified per Elections Code §§ 9115 and 9211 500
C. Number of signatures found SUFFICIENT 363
D. Number of signatures found INSUFFICIENT 137
E. Number insufficient because DUPLICATE I
F. Percentage of signatures found sufficient in random sample 73%
G. Percentage of sufficient signatures x total number of signatures submitted
(73% x 4803) 3506
H. Total valid signatures based on random sample less weighted
duplicates (90) 3416
I. Number of signatures necessary to declare petition sufficient utilizing
the random sample technique (110% x 2330) 2563
THEREFORE, I hereby find this Referendum Petition to be sufficient, based on the random
sample examination method prescribed by Elections Code Sections 9115 and 9211.
IN WITNESS WHEREOF, Ihave hereunto set my hand and affixed the City's official seal this
8's day of September 2004.
Audrey Ho er
City Clerk
City of San Luis Obispo
Received by:
G1702-01 ElectionsTetitiou Procedures\Certificate of Sufficiency Referendum Petition 12004
Page 2 J lQ
Richz dSchmidt 1W 544-4247 M09/18/4 m4:38PM D1/4
RICHARD SCHMIDT RECEIVED
Street, San Luis Obispo, CA 3405 X805 9 4-42 7
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September 18, 2 ATTORNEY ,Z-PW DIR
CLERK/ORIG 21POLICE CHF
❑ DEPT HEAD$ _ �REC DIR
City Council �T r R : Marketplace Referendum Decision RED FILE
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City of San Luis O po /HR DIR NG AGEND
_- _
Dear Council Members: D,4TE:. ITEM #
I urge you not to put Bill Bird's Marketplace on the ballot, but rather to rescind your approval for the
project.
I do this in all seriousness-- this project is a loser for our city financially, socially, environmentally, and
economically, and it's time responsible city officials admitted that and pulled the plug. You need to ask yourself
what sort of legacy you will be leaving if this is your Monument -- a project that
• tears the fabric of our community apart,
• beggars the city's finances so that police and fire, parks and recreation, and street repairs all get chopped so
that it may live, and
• turns San Luis Obispo into one of those places like Santa Maria about which national publications then rant
"What in the world were they thinking of when they destroyed their wonderful town?" (for a late example for
Santa Maria, see the recent editorial in Business Week, of all places!).
Frankly, knowing each of you as well as I do. I think you only voted for this project because you were misled by a
manipulative staff. Had you received good, complete, neutral and unbiased guidance from staff, I believe the
outcome of your vote would have been different the first time. It's not too late for you to do what's right for your city.
You have the chance now to correct your previous error.
I would suggest to those of you who voted in favor of the Marketplace the first time that there is a simple rationale
for switching your vote: New information. Below Is a partial summary of some New Information you didn't have
before.
1. Djegree of Public An= Some of you have been surprised by the depth and breadth of public anger with the
Marketplace approvals. Staff led you to believe any trouble would be from what they regard as Public Nusiances
like myself. Well, they're wrong, totally. I am working on this effort-- but with a group of people I've never worked
with on anything before, with whom I am discovering I have a great commonalty of interests regarding the city's
future. By approving the Marketplace, you have jump started a realignment of local politics which will make
everything you stand for obsolete and out of office. I am amazed at how quckly this has coalesced, and at the great
promise it holds for the future. I must thank you for being the instruments of change— albeit, a type of change you
never intended to bring about. Clearly, you had no idea of the giant you were prodding awake when you approved
the Marketplace.
Proponents of the referendums gathered more than 14,000 signatures in a remarkably short time. This number,
even reduced by what proponents estimate to be about one third of each petition representing signers of more than
one petition, is more votes than any sitting member of the council or mayor has received. The handwriting is on the
wall.
Proponents could have gathered far more signatures had the city's poor behavior not made that impossible.
Despite advance notice of proponents' intent to do referendums, the city was utterly unprepared to do its
Constitutional part, and each time dawdled for days getting clean copies of the council actions ready for petitioners
to use, causing proponents to lose up to 10 days of the 30 day circulation period for each petition. Staff pleads for
sympathy due to the complexity of the documents, but,the fact remains, they were noticed in advance and should
have been prepared. They weren't. This dawdling by the current regime on this very controversial project's
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Rich2;d Schmidt V 544-4247 - 1 9/18/4 G4:38 PM p2/4
A
referendum materials is in stark contrast to every other referendum in memory, when the city cooperated fully with
proponents and made sure final copies of required documents were available to proponents within 24 hours of
council action. For each of the three Marketplace petitions, had proponents had the full 30 days in which to
circulate, they would have got many thousands more signatures, for they didn't run out of people ready to sign, they
ran out of time. If there is an election campaign, the city's poor behavior will be an Issue.
You are probably aware that Mr. Bird and his Texas financiers have hired an elections firm that specializes in trying
to defeat referendums against Wal-Mart. (You must be aware also that two box stores on Mr. Bird's plan would fit a
Wal-Mart perfectly, and that a Wal-Mart could become a Marketplace occupant.) You might take note of what
happened with Mr. Bird's Glendora Marketplace in his hometown, where voters launched a referendum. His
elections firm did manage to get the referendum defeated, but the voters nonetheless threw out every single council
member who had voted for the project. You have to remember that Mr. Bird doesn't care a damn about YOU and
your public reputations and political careers; he only cares about the booty he can extract from our community.
Once he gets what he wants, you're history as far as he's concerned. He doesn't even need to say"Hello"to any of
you. He's looking out for his interests, not yours or ours. Only you can protect your own legacy and reputation in the
the community, and it's important therefore that you rescind your Markektplace vote. Glendora tells you why.
It's OK to admit you misjudged public sentiment, and now wish to pay it some respect. Please rescind your vote in
favor of the Marketplace.
2. Cost of an Election is far Greater than You Realized..Staff keeps batting around the $30,000 figure for the cost of
an election. That seems low, even in the best of circumstances.
But what nobody's pointed out to you till now is the cost of the printed materials for the election, which will set some
sort of new record, and for which the city is utterly unprepared.
In an effort to make the Marketplace referendum proof, your staff appended page after page of bollerplate to your
approvals, thinking, apprently, that would make it too costly for opponents to do a referendum. (They didn't reckon,
however, on how angry the public would be, and that the costs would be coverable in large part due to the level of
public anger at the city's trickery.)The shortest petition, as a result, was 57 pages long. One was well over 100
pages.
Payback for this scheme comes election time, when the city must republish more than 200 pages of its referendum-
proofing boilerplate in the election pamphlet sent to each voter.
What in the world will that cost? How many trees will it sacrifice? How does this fit in with official talk about a
sustainable city?
This is surely new information. It's all right to admit you lacked full information to understand the ramifications of a
Marketplace election's costs, waste, and complexity, and that you now feel the costs are out of proportion -- given
the high likelihood the project will be defeated by voters-- given the more economical and less acrimonious
alternative of simply rescinding approval for this hated project.
On this basis, please rescind your vote in favor of the Marketplace.
3. The Marketplace will Beggar the City's Finances for Decades in Ways Not Revealed to You or the Public Prior to
Your Voting on the Project.
The only positive rationale for the Marketplace seems to have been that it will provide the city with sales tax
revenue. However, we all knew up front that due to the unmerited giveaway of half the sales tax to Bill Bird and his
Texas financiers, the Marketplace will only generate half as much sales tax for the city as similar development
anyplace else in the city. That means the city will get 50% rather than the 100%to which it's entitled.
However, when one looks at all the costs the Marketplace will impose upon the city, it becomes clear the
Marketplace will provide the city with NO NET SALES TAX GAIN -- instead, it will cost far more than its sales tax
revenues to the city can cover.
Referendum Decision, Page 2
Richa;O Schmidt V 544-4247 M9/18/4 04:40 PM ❑314
i
I reach this conclusion after spending many hours as part of a team doing public documents review in the city's
files. I suspect we saw a lot of information the council has never seen nor been apprised about.
I cnnot begin to give you a total picture in such a small amount of space as this letter, but here are some broad
brush thoughts that should point out to you how poor the knowledge base was on which your prior vote was based.
You are aware that under the agreements you approved, Mr. Bird is essentially off the hook for costs (other than for
a share of the overpass construction) his project necessitates on the east side of the freeway. Here are a few of the
apparently uncovered costs which will fall to the city to pay:
• Building a flood wall to keep flood flows from San Luis Creek off Highway 101.
• Cleaning up a number of hazmat sites--the exact number is unclear, various documents refer to between 7 and
12 separate sites.
• Condemning land and using eminent domain to purchase land for interchange and roadway construction and
widening Prado Road.
• Widening, perhaps concreting if Carrrans has its way(and they may, due to the proximity of adjacent
development), more than a mile of San Luis Creek to meet CalTrans demands to mitigate Highway 101 flooding.
And that's just the beginning.
How in the world will the city realize any benefit from its 50% remnant of the sales tax revenue after paying for this
sort of massive infrastructure construction and its debt service?This project creates far too much collateral financial
damage for the city for the piddling amount of sales tax it may provide to be worth pursuing.
Bear in mind also that the city's TIF funds will be totally allocated to the Prado overpass debt retirement, and there
will be no TIF funds to pay for badly needed road improvements elsewhere in the city -- such as the Orcutt railroad
grade separation, which your public safety deaprtments are counting on to be built in the near future. If this Orcutt
project is to proceed, it will have to be funded by other city sources than the TIF which was supposed to pay for it.
The ripple costs of the Marketplace throughout the community will be huge and will far exceed any sales tax
income to be realized from the project.
This mocks the "development must pay Its own way" directive in the General Plan, which all of you have taken an
oath to uphold.
Further, all the city's"favorable"financial calculations presume the Marketplace will be a viable and profitable entity
for at least 30 years-- a presumption without any basis other than fervent hope, for if the Marketplace survives that
long, it will be the first big box center on the face of the earth to do so. And, given Mr. Bird's demonstrated previous
lack of commercial acumen in our town, the cards are stacked against this becoming the most successful box
center on earth.
By contrast, if you were to shut down the Marketplace and encourage its anchors to locate elsewhere, the city
would be saddled with none of the extravagant costs cited above, and would collect 100% of the sales tax it
deserves.
For example, the two unspoken-for box pads at Froom Ranch can accommodate up to 280,000 square feet without
further permit from the council. That's a bit short of half the size of the Marketplace, but it would produce almost as
much sales tax for the city as the whole Marketplace would produce. This seems like a much better deal for the city,
its taxpayers, and future city budgets. But if the Marketplace is built, Froom is unlikely to continue developing as
planned; the local box store market will be saturated by the Marketplace for years to come, and the city will be
saddled with its debt.
The Marketplacein short, is an unmitigated financial disaster for the city. Unfortunately, the council was not fully
Referendum Decision, Page 3
Richard Schmidt 12544-4247 EL911814 04:41 PM D 414
apprised of this prior to voting. Now that you have more facts, and now that you've had a chance to think it through
and hear critics on the issue, it's all right to say you acted without the full knowledge you wish you'd had, and
extricate the city from this financial nightmare while you are handed a golden opportunity--by the referendums-- to
gracefully do so.
Please rescind your vote in favor of the Marketplace.
4. The FIR is now Exposed as Deliberately Incomplete.
Critics of the Marketplace urged you to find the EIR insufficient for a variety of reasons. One of those had to do with
obvious piecemealing --the partial analysis of something that should have been fully analyzed -- of the Prado Road
interchange and overpass.
As a result, litigation has been filed on the EIR.
After public documents review, it is clear the cfty knew the Interchange was 2eingbeing piecemealed, and it may be that
staff deliberately concealed this obvious legal deficiency from the Council. In fact, in memos back and forth.
between CalTrans and the city over a period of many years, it was acknowledged that the city would shortchange
the CEQA process and expect CalTrans to pick up the pieces later. This, in my mind, suggests a deliberate
conspiracy to violate the law. For what reason, however, isn't yet clear.
In any event, uncovering this information greatly strengthens the litigation against the Marketplace EIR. This will be
costly and time consuming litigation for all parties, will tie up city staff doing work they shouldn't have to do, will
tarnish the city's already tarnished public image still further, and could delay the project for many years. The fact
this"live wire" hangs out there to shock anyone who touches it will almost certainly play into the election campaign
if there is a Marketplace election. It will be an issue in this fall's council elections. It will make clear that the city is
not the innocent party it pretends to be, and that it has knowingly participated in skirting the law.
It would be best for you to extricate the city from this mess by admitting staff didn't fully inform you of what it knew,
that their refusal to deal with critics complaints was poor policy, and that you want to extricate the city from this
mess by wiping the slate clean. If the Marketplace goes away, all the publicity from the lawsuit proceedings will also
go away as the lawsuit will become moot.
On that basis, please rescind your vote in favor of the Marketplace.
5. Conclusion. I have outlined several aspects of "new information"any of which is plenty on which any of you could
base a reversal of your previous vote. You know more now. Conditions have changed. Concealed information has
come to light. It is not unreasonable to rescind your first votes in favor of the project. On the other hand, to continue
to stick by them simply digs the hole deeper, and deep holes have a way of caving in on those digging them.
So, for the good of everyone in San Luis Obispo, please rescind your vote in favor of the Marketplace.
Sincerely,
Richard Schmidt
Referendum Decision, Page 4
r`R-hard 50midt 1M 5444247 M9118/4 04:32 PM D1/3
RECEIVED
SEP 1 U 2004
RICHARD SCHMIDT SIA CITY CL K
j couN eet San Luis Obispo, CA 93405 (805) 544-4247
ICAO �t'FIN DIR
IyACAO aFIRE CHIEF
September 18, 2 ATTORNEY ;:-Pw DIR
CLERK/ORIG -YPOLCECHF
.0-DEPT HIE R` I
City Council `Ie�' ail lection for Marketplace ReferendttD FILE
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City of San Luis �sp .
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Dear Council Members: DATE ITEM #-AIL_3
I am stunned-- as I'm sure other good.government advocates must be -- to learn the city is proposing a
PRIVATIZED MAIL IN ELECTION for the Marketplace referenda.
If there is going to be an election on the Marketplace, the city needs to do everything it can to assure the
integrity of the electoral process, and not annex the election itself to the game playing of the project
approvals (such as the complex split approvals designed to make the project referendum proof).
Staff's bizzrre proposal for a privatized mail in vote thumbs its nose at the integrity of the voting process
as it has been established in this city over the years. It would substitute an unproven, experimental.
unfamllalar. and hlghly questionable voting process of dubious Integrity and security for the traditional.
familiar, proven. secure process of voting we've always used. Why now? Is this just another staff
manipulation of the Marketplace process designed to confuse and obfuscate, and to assure that the
public (whose interests staff is supposed to be serving) remains off balance? What conceivable reason is
there to jettison a good voting process for one that has no bonafides? The proposal in shortcannot pass
the smell test. It should be DOA.
As for the staff report presented to the council justifying this awful proposal, it is so specious and
manipulative that it is an astonishing comment upon a city regime run amok. I'll point out some of its
salient features, chronologically, to amplify this claim.
1. Council Directive. The report alleges that at a previous council meeting, "Council directed staff to
consider"a mail ballot. Really?At what meeting did this discussion occur? Such a discussion was never
agendized. It does not show up in published council meeting minutes. I've asked numerous citizens who
watch all televised council meetings if they recall such discussion and directive; none do. They DO recall
Council Candidate Andrew Carter telling the council to do this, but that's not a council directive, is it?
Which raises the question: Was there in fact a prior council "directive," or is the staff report wrong? If there
was such a directive, why was the discussion in which it occurred not a Brown Act violation since it was
never agendized, and the council apparently took some action in addition to discussing an unagendized
issue, which itself would be unlawful?
2. Authorily Under City Charter. The staff report claims the council has authority under sections 301 and
303 of the Charter to call a mail election. This seems specious and irrelevant, for Section 304 specifically
governs referendums, and it clearly says state Election Code prevails for referendums. It's not at all clear
the Election Code would allow a mail in vote such as that proposed. And, if it were to be construed by a
court to allow one, the Election Code would appear to limit such an election to one of two dates in 2005,
one in May, one in August, both of which are far beyond the "first quarter workload bottleneck"in the
County Clerk's office cited later in the staff report as the reason for considering a privatized mail election.
In short, there's more than enough uncertainty about the legality of such an election to land the city in
Mail Election, Page 1
Richard f phmidt IR 5444247 M09/18/4 04:32 PM p2/3
1 � �
court if it were to call one. Why would a good city choose such a questionably legal and arguably
confrontational election method over one that's familiar, proven, safe, and undisputedly legal? What's the
city's agenda here?
3. Voter Turnout. This section of the report is transparently absurd on its face. It cites generalities about
low voter turnout (some liberal pinko hand wringing, I suppose), and makes unsubstantiated claims about
the merits of mail elections. It totally neglects to mention a salient fact of local electoral fife: We
consistently have great voter turnout, one of the highest voter turouts in the state! People here vote.
Period. On a question like the Marketplace, they WILL willingly go to the polls. To suggest we don't vote
because it's inconvenient is an insult to the spirit of San Luis Obispo voters. We don't need an
experimental, fraud-prone voting method to get people to participate.The polling place voting method
works! Why mess with it?
Furthermore, where mail voting has been required elsewhere, the conclusion that it boosts turnout isn't
backed up. In Oregon, where mail balloting is mandatory, political scientist Melody Rose wrote in the
Oregonian that contrary to claims participation had skyrocketed due to mail voting, 'Turnout in Oregon
looks much more like that of states with old-fashioned voting booths."She commented on a September
2002 election, when 'With the state in fiscal crisis, and two landmark measures on the ballot, vote-by-mail
should have delivered a stellar performance,"but only 32 per cent of eligible voters voted. In England,
where mandatory mail voting was tried experimentally, the number of votes did go up-- due to massive
fraud that caused a quick end to the experiment. A balanced staff report would present facts like these,
not just propaganda designed to manipulate the council.
4. Increased lntegr*Jy of Elections Process.This section, which insunuates voting at pollint places if fraud-
prone, is an insult to Ken Schwartz and every other dedicated poll worker. I'm sure it will come as a
surprise to Ken to know he's presided over a voting process lacking integrity!
This section of the report is utter rubbish. It's"facts" are unfactual, starting with the claim voters at polls
aren't required to show identification; I'm always asked to identify myself.
5. Facility Location/Poll Worker Recruitment. This section is unbecoming. In it, staff whines about how
hard they'll have to work to hold an election. Give me a break! Running elections is part of their job. If they
cannot handle it, they should change jobs and the city should hire people who can perform to their job
description. This shameless whining about too much work is disgraceful. As for their point about
"consolidated" precincts being too confusing for voters, what planet do these people live on? We
ALWAYS have consolidated precincts!This is nothing new or unique to a Marketplace election. The
voters are used to it, and know what to do.
6. Improved Quality of Voter Records. Why would a mail election in early 2005 "improve"voter records
when we've just had a presidential election at the end of 2004. What's to correct?
Furthermore, I question the propriety and legality of purging a voter on the basis of a ballot returned by
the Postal Service. Hello? Do none of you ever receive misdelivered mail?At my house it happens
several times a week. The whole scheme sounds like the hack job Katherine Harris and Jeb Bush did
purging the voter rolls in Florida in 2000.
Finally, it is not clear how the Postal Service would be induced to return mail sent to someone at an
address where they do not live. How would they be empowered to do this? How would they even know?
Don't they have an obligation to deliver mail to the address on the envelope? Short of requiring each
ballot to be sent certified and requiring each recipient to sign for it before receiving it (which clearly is not
feasible!), there appears no way to enlist the Postal Service as election cops. A far more likely scenario is
that all ballots will be delivered, either where they are sent or at some other address, and some signficant
Mail Election, Page 2
Richard Izchmidt 'T 5444247 M9/18/4 04:33 PM D3/3
proportion Will be voted by someone other than the intended'recipient - in other words,fraudulently.
7. Voter Fraud. I quote the report: "Voter fraud . . . is probably the largest concern in mail ballot election."
Well, that's an understatement. The potential here is mind-boggling. What about the huge percentage of
our citizens who reside in congregate housing (students, elderly, group homes) where it would be simple
to intercept thousands of ballots, and where signature samples are readily available to a would-be fraud
artist? In such residences, there are other obvious and more subtle, less blatantly criminal manipulations
of masses of votes that are not difficult to figure out. What about the bring-your-ballot-for-a-free-barbecue
scenario? What about ballots lett in mailboxes in student neighborhoods, where life tends to be casual
and the mail may sit a while before being picked up? If people can print fake money that passes, how
difficult would it be to print fake ballots? With this sort of eleciton, there's NO CONTROL on fraud. The
process invites fraud. All of these sorts of things have actually happened where mandatory mail balloting
has taken place --this is not conjecture. None of these scenarios exist with polling place voting. Why
change?
8. Fiscal.Impact. There's no fiscal advantage to running a potentially fraudulent mail election, so why risk
lt?
9. Private Vendor. To me, this is a truly scary idea-- PRIVATIZING THE VOTING SYSTEM! Elections are
an essential public process in our form of government. We've gone too far already in surrendering public
control to coprorate vendors like Diebold, whose chair says he'll do whtver it takes to deliver Ohio to
Bush. But an election turned over to a private contractor over whose actions the city has no control, and
from whom the public can demand no trust? Is the electoral process to become nothing more than a
commercial transaction?This is a fundamental he
of our republican principles. It is entirely improper,
an abdication of public responsibility for the most basic and sacred of public functions, and the council
needs to loudly say"NO!"
Conclusion. As I said at the beginning, if there's to be a Marketplace election, the city needs to do
everything it can to protect the integrity of the process. And that, in turn, suggests this should be staff's
directive as well.
Since the proposal made by staff makes no sense and is backed by specious reasoning and facts, the
real question here is what would be the city's true motivation in scuttling a proven, safe, honest election
process with recognized integrity (i.e., public-.run poll voting) and replacing it with an experimental,
insecure, potentially fraud-prone process with no proven integrity(a privatized mail election.) With all the
adverse publicity from the 2000 election and following, and the resulting public suspicion of the electoral
process, this would be a step in the wrong direction, and makes absolutely no sense.
The question becomes: What is driving this bizarre excursion into uncharted electoral waters? Is the city
so in bed with an LA developer, his rich Texas Republican financiers and their hired Wal-Mart referendum
busters that it will do whatever they want, no matter how contrary to the public good?
Sincerely,
Richard Schmidt
Mail Election, Page 3
CYDNEY HOLCOMB SOS S94 0365 09121!04 10:22am P. 001
- `,1r ! RECEIVED
SF, 2 1 2004
AAA Q LO CITY CLERK
Residents for Quality Neighborhoods
P.O. Box 12604 . San Luis Obispo, CA 93406
RED FILE
MEETING AGENDA
ITEM #b.—,3 /Cour:clL �zcDD DIM
Z1"rlTE� %CAO -2. FIN DIR
12"ACAOFIRE CHIEF
1,0'AITORNEY 'apw DIR
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DATE: September 17 2004 D7L �'REC DIR
_ fUi!L D!R
TO: San Luis Obispo City Council -
VIA: Fax to: 781-7109
RE: Meeting Date: September 21, 2004 - Item Number: Bus. 3
SUBJECT: CLERK'S REPORT ON SUFFICIENCY OF REFERENDUM PETITION REGARDING
RESOLUTION NO. 9590 (2004 SERIES) DALIDIO/SAN LUIS MARKETPLACE
PROJECT
Honorable Mayor and Members of the City Council,
RQN has reviewed the report prepared by the City Attorney and City Clerk regarding the
above-entitled matter. We submit the following comments in opposition to the CAO's
recommendation to prepare an ordinance which would allow an all-mailed ballot election for
the referenda issue:
We first question whether the council actually gave staff the required direction to explore an
all-mailed ballot election. This issue was initially raised by Andrew Carter (a candidate for
City Council) in open comment at the August 17, 2004 City Council meeting. There was no
discussion of the subject at that meeting. And, according to your minutes, no directives
regarding all-mailed ballots were issued at any of your subsequent meetings. In fact, we
find it hard to believe that your council would even think about, much less give specific
direction to make any changes in the voting procedure for the special election on such a
highly controversial project.
Your constituents spoke clearly when they signed, not one, not two, but three separate
referendum petitions to have the Bill Bird Marketplace project put on the ballot. They did so
with the understanding that they would be able to vote on this issue the same way they
have always voted and with the same choices: voting early at the clerk's office; voting by
absentee ballot (permanently, if desired); voting at the polls; and, most importantly voting
in private and without coercion.
CYDNEY HOLCOMB 905 594 0365 09/21/04 10:22am P. 002
i
September 21,2004
RQN - Opposition to All-Mailed Ballots Page 2
The assumption in your agenda report that the integrity of the elections process is increased
by the use of all-mailed ballots is simply not true. For example, the polling place is the only
place where citizens can vote in secret (a constitutional right). Precinct workers are "sworn
election officers" who are responsible for ensuring that only eligible voters are allowed to
vote and that each voter only votes in those races and on the issues they are eligible to
vote for. First time voters must show their driver's licenses and repeat voters must.
announce their name and address before they sign the combined roster/index. Many other
checks and balances are in place, including independent poll watchers to ensure that the
fundamental principal of"one person, one vote" is not compromised.
Conversely, jurisdictions that have instituted the all-mailed ballot system are beginning to
document widespread fraud, abuse, and intimidation. Votes are being exchanged for favors,
money or food. Ballots are being bought and sold for as much as $20.00 each. Seniors are
visited at home and persuaded to have someone mark their ballot, others have ballots
stolen from their mailboxes. And, third-party ballot collectors, who go door-to-door, have
been known to throw away whole groups of ballots based on voters' sex, perceived political
leanings or race.
The assumptions that the all-mailed ballot system will actually increase voter turnout and
save money are also not true. Low turnout doesn't result from a lack of convenience; it
results from a lack of engagement with politics and the electoral process. Scholars are
divided on this issue, but, the most recent research suggests that all-mail voting boosts
turnout only among those demographic groups likely to vote anyway. And, its success
hangs largely on how well the.citizens are trained to use the system.
If training is the key then the City would have to undertake a massive campaign to educate
the voters, for this one election. Sounds expensive to us! Also, it is likely that the developer
will actually pay the cost of this election. If that is the case, are you going to compromise
the whole electoral process in an attempt to save him money?
In summation, it Is our opinion that introducing a new voting system for this election Is a
mistake. This issue certainly has the potential to anger the voters even more, and if
approved could in fact give rise to yet another referendum.
We, therefore, respectfully request that you:
1. Either repeal Resolution No. 9590, or, place the referendum on the ballot.
2. Do not direct staff to prepare an ordinance providing for an all-mailed ballot election.
Sincerely,
Cydney Holcomb
Chairperson, RQN
RECEIVED
p.eDD DIR SEP 2 02Gij4
ICAO ZFIN DIR '
SLO C
ACAG �0 FIRE CHIEF ITY CLERK
I2-A1 iORh;-y Z-PW DIR
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Dear Mayor Romero RED FILE
and Members of the City Council MEETING AGENDA Sept. 20, 2004
of San Luis Obispo,
DATEO&W ITEM # S
Subject: Repeating Prior Approvals of the Marketplace
On September 21 st, you are going to get a second chance to do the right thing.
Thousands of voters have signed the petitions we circulated. By doing so, they have let
you know that that they strongly disagree with your decision to approve the massively out-
of--scale Marketplace project by Southern California developer Bill Bird. As a result, you
now have a new reason to repeal your prior action.
We urge you to reject the Marketplace now for the following specific reasons:
• The Marketplace threatens our Downtown the same way Wal-Mart has killed so
many other great downtowns. Two studies—one hired by the City and paid for by
developer Bill Bird (Kotin Response, May 2004) and one paid for by Downtown
businesses(Keyser Marston Report, May 2004)—agree the Marketplace project will
harm the Downtown.
• Better sites exist for"big box" developments in the City. The best examples are on
Los Osos Valley Road near U.S. 101,where vacant big box building sites have
already been approved.
• If the Marketplace is built, taxpayers will be ripped off by a City give-awav of sales
tax estimated to start at$750,000 each year for 30 years to Marketplace developer
Bill Bird. This unprecedented windfall—totaling more than $20 million—sets a
dangerous precedent with the City unfairly favoring new businesses with little
consideration for existing ones.
• The estimated cost of the Prado Road overpass road work has increased to$22
million—not the$12.5 million commonly reported—and the actual cost is likely to be
even greater. Moreover, the City has agreed to write a blank check to cover all of the
additional costs for work needed to prevent flooding or protect the environment due
to the construction and operation of this overpass. Inexplicably, the Project's EIR
didn't cover these impacts, so right now we can only guess at the nature and scope
of the work for which the City will be paying. It is dear, however, that these
uncontrolled costs could mean cutting police and fire protection, parks, youth sports
and street repairs. Po Box 4312
San Luis Obispo, CA 93403-4312
805-546-1112
n
Mayor Romero
and Members of the City Council
of San Luis Obispo
September 20, 2004
Page 2
The County is unlikely to approve the Marketplace if the City doesn't. A recent
engineering study from a respected local firm showed that the County would require
a massive septic system. This would force the Marketplace to scale back by more
than half its originally proposed size.
The Marketplace will cause traffic gridlock on Madonna and Los Osos Valley Roads
and on South Higuera Street from South Street-to Los Osos Valley.Road. It will also
slow traffic on U.S. 101. Traffic generated by this massive project will make driving
through town miserable for everyone, force through=traffic into neighborhoods, and
make some parts of our community nearly impenetrable. Tried making a left.tum
lately onto Madonna Road from the Laguna Village Shopping Center? Imagine how
bad itwill be with the Marketplace, just down the street; generating more than
20,000 additional daily tripsH
We urge you to repeal your prior decision.and reject the Marketplace project. Thank you for
keeping San Luis Obispo unique and strong.
Kent Taylo ,
Treasurer—Save San Luis Obispo
RECEIVED
council m EM oI2an oum 'EP 21 2004
SLO CITY CLERK
F-F31 o san Luis oil o, aamtnlstpation oe autment
RED FILE � �
DATE: September 21, 2004 MEETING AGENDA �COUiJ"L TCDD DIR
_ � c;AO P"FIN DIR
TO: City Council D;' --C� �1TEM # S,�i 1,;?ACAO ,a FIRE CHIEF
ATTORNEY 1 Pw DIR
!�CLERK/ORIG ,'POLICE CHF
FROM: Audrey Hooper, City Cleric 1 ❑ DEPT HEADS ZeREC DIR
Ir-"/ ������ � ��('),
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VIA: Ken Hampian, CAO %% � A {S- 'HR DIR
SUBJECT: Referendum Petition re Dalidio/San Luis Marketplace Project—Additional Information
At the time the Council Agenda Report was prepared related to the Sufficiency of the first Referendum
Petition, estimated costs of a special election were not available from the San Luis Obispo Registrar of
Voters. We have now received those estimates, along with an update from Martin and Chapman Co.,
elections vendor.
The estimates from the San Luis Obispo Registrar of Voters are based on an assumption that there will
be 29,000 registered voters at the time a.special election will be held:
Polling Place Election - $57,000
All-Mail Ballot Election - $43,000
The original estimate from Martin and Chapman Co. was based on the current number of registered
voters (23,295) at the time the petition was circulated. Therefore, we asked for a revised estimate
reflecting an assumption of 29,000 registered voters. The revised Martin and Chapman Co. estimate
assumes that their cost to conduct a polling place election is similar to an all-mail ballot election:
Polling Place or All-Mail Ballot Election - $46,200
At the request of Council Member Mulholland, staff reviewed the audio tape from the August 17, 2004,
Council meeting, where there was a suggestion to pursue an all-mail ballot election. While staff was not
expressly directed to pursue an all-mail ballot election by a majority of the Council, staff would have
provided information on this option regardless of direction as it is becoming more common for an all-
mail ballot election to be held, particularly for one-issue special elections. For example, the Los Osos
Community Services District held an all-mail ballot related to a fire tax increase.
If Council desires additional time to consider the feasibility of an all-mail ballot election, a decision on
this matter can be deferred until such time as the status of the two subsequent petitions is determined.
Questions have also been raised about the timing of an election, including the possibility of
consolidating with the County for an election in 2006. Staff did not include any alternatives related to
timing in the September 21, 2004, staff report because, as explained in the report,timing would be best
determined when the status of all three petitions is known. The option of County consolidation can be
considered at that time.
RedFile Update re Election Costs 092104
�. Page 1 of 1
SLO Citycouncil -Mail in Election on Marketplace ECEIVED
u®.�r
AFP 21 2004
From: <Stanthomps@aol.com>
To: <slocitycouncil @ slocity.org> SLQ CITY CLERK
Date: 9/21/20041:01 PM
Subject: Mail in Election on Marketplace
Hello,
In this morning's Tribune,it said that you would discuss and decide on whether or not to have a"Mail In Election"on the issue of the
San Luis Marketplace.Since the opponents have pushed this attempt to overturn the council's decision,a Mail In Election should be
held as soon as possible.We need to settle this once and for all.
Stan Thompson
1759 San Luis Drive
San Luis Obispo,CA 93401
544-7031
�#-CC0k,U- NCIr�D"1 DIRJ
CACAO f'-Z CHIEF
RED FILE ATTORNEY ?'PW DIR
F2 CLERK'OR10 -POLICE CHF
MEETING AGENDA El DU PT HE-4DS rREC DIR
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D:=r.TE, I'ITEM n
file://C:\Documents%o20and%20Settings\slouser\Local%20Settings\Temp\GW)00001.HTM 9/21/2004
ANDRE, RECEIVED PETER R.ANDRE(1918-20M)
MICI4AEL J.MORRIS
MORRIS
SFp 21 2004 JAMES C-BUTTERY
& BUTTERY DI�.N-NU50.LAW
A PROFESSIONAL LAW CORPORATICht SLO CITY CLERK f SCOTT WALL
KXFHRYN M.'EPPRIGHT
M'IN D.MORRIS
WILLLAuM V.AOUGL.45S
JEAN A.ST.KASTIN
LISA I'eARSER`'TOKE
RED FILE
September 21,2004 MELISSA M.MCCANN
MEETING AGENDA BMIA.MARINO
ITEM
#
:739 Santa Matic Way,Thief
Post Office Bax 1430 14?0
1 Santa Matic,CA 93456-1430
Telephora,805.937.1400
facsimile 805.937.1444
Via Hand Delivery _i D DIF
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�, CAO r2-=1N DIR San Las Wlipo=CA93106:1=
Dave Romero, Mayor �ACAO ZFIRE CHIEF
City CounciImembers IZA70RNEY ;GPS'DIR
City of San Luis Obispo I � n qp HEAD G ROC CD RCHF
990 Palm Street I ] riEADDTI�DIR
San Luis Obispo, CA 93401rft (S_ I'�I� Dffi
Dear Mayor Romero and Councilmembers:
I am writing on behalf of the Marketplace Team to request that you postpone making a
decision about the specifics of the referendum election. All of the key project team members,
including Michael Morris and Dennis Law of this office, are out of town and therefore
unavailable to attend tonight's meeting. They did not anticipate that this matter would be before
the City for a decision tonight.
The Marketplace Team has numerous questions about the referendum process, and
intends to provide comments to the City Council about the mail ballot issue. We request that the
Council postpone action on the issue of a mail ballot to allow the Marketplace an opportunity to
provide input on this important matter.
Very truly yours,
Kevin D. Morris
KDM/sf
F:1\TT1A1jmbad.01�SN1V\Romeru 9-21.04 due
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Mila Vujovich-La Barre
Save San Luis Obispo
P.O.Boz 4312
San Luis Obispo,California 934034312
805-546-1112
Subject: Repealing Prior Approvals of the Marketplace
Date: September 21,2004
Good Evening Mayor Romero and Members of the City Council-
Tonight,you are going to get a second chance to do the right thing.
I am speaking tonight on behalf of the community members of Save San Luis Obispo
and the thousands of voters who signed the petitions demonstrating that they strongly
disagree with your decision to approve the massively out-of-scale Marketplace project by
Southern California developer Bill Bird. I am also here as we are gravely concerned with
staff's recommendation regarding an all-mailed ballot vote.
We urge you to rescind your Marketplace decision for the following 6 specific reasons:
• One-The Marketplace threatens our Downtown. Two studies agree the
Marketplace project will harm the prosperity and atmosphere of our beloved
Downtown.
• Two- Better sites exist for"big box"developments in the City. The best
examples are on Los Osos Valley Road,where vacant big box building sites have
already been approved.
• Three- If the Marketplace is built,taxpayers will annually be gi3jgg away an
estimated$750,000_in sales tax for thirty years to Marketplace developer Bill
Bird. This does not include the interest for 30 years. This windfall—totaling
more than$25 million - sets a dangerous precedent with the City. Are we not
unfairly favoring new businesses with little consideration for existing ones?
• Four-The estimated cost of the Prado Road overaass road work has increased
from$12.5 million to $22 million and the actual cost is likely to be closer to$30
million. These uncontrollable costs would mean cutting police and fire protection,
parks, youth sports, and street repairs.
• Five-It is highly unlikely that the County will approve the Marketplace if the City
doesn't. The County is not in a financial position to provide urban services to this
sprawling development.
• Six-The Marketplace will cause traffic gridlock on Madonna and Los Osos
Valley Roads and on South Ifiguera Street. It will also slow traffic on the
freeway. Traffic generated by this massive project will make driving through
town miserable for everyone and will force through traffic into neighborhoods.
The traffic that will be produced from this project will mirror the urban traffic
congestion of Los Angeles or San Francisco.
i 1
The thousands of petition signers believed they would go to the polls and vote for or
against Bill Bird's Marketplace project.Now,that the petitions are signed,the City
staff is planning to change the rules. All-mailed in balloting is a change of rules. This
is an unprecedented act against a single issue. It is discriminatory in nature.
Thousands of voters are willing to go the polls and vote in the traditional manner.
Why change it now? Why is the City even thinking of tampering with the established
voting process without proper public notice or approval?
On behalf of Save San Luis Obispo and the thousands of voters that signed our recent
petitions, I urge you to EMeal your prior decision and reject the Marketplace project
Thank you.
CUU^,�,i /�"CDD DIR
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RECEIVED
September 20, 2004SEP 2 C204
SLO CITY CLERK
SAVE SAN LUIS OBISPO
City Council
City of San Luis Obispo •••ir5your dwke! RED FILE
900 Palm St.
San Luis Obispo, CA MEETING AGENDA
93401 DATE C' a��Ir` TEM # &J93
Subject: Proposed All-Mail Ballot for the Marketplace Election
Dear Councilmembers and Mayor Romero,
Save San Luis Obispo urges you to rescind your prior approvals
of the Marketplace.
Unless you act to rescind your prior approvals, you are required by law
to submit the issue to the voters at the next regular municipal
election or at a special election. Save San Luis Obispo has read the
staff report and has the following concerns:
1. The Staff Report Did Not Advise You of the Option of
Putting the Referendum on the November 2006 Ballot.
It is unclear why this option was not discussed in the staff
report. This is an important omission in the staff report.
Election Code Section 9241 states that:
^If the legislative body does not entirely repeal the ordinance
against which the petition is filed, the legislative body shall
submit the ordinance to the voters, either at the neat regular
municipal election occurring not less than 88 days after the
order of the legislative body, or at a special election called
for the purpose, not less than 88 days after the order of the
legislative body."
If there is to be an election, Save San Luis Obispo urges the
Council to set the referendum for the next regular municipal election,
which we understand is November 2006. This option would cost the City
the least amount of money. It would also give voters plenty of time to
consider the relevant issues, and make informed decisions.
Furthermore, a November 2006 referendum date will give the City
and the developers time to complete thorough environmental review of
the project, such as the missing analysis of the Interchange's impacts
east of Highway 101 (Cal Trans) EIR, San Luis Creek hydrology studies,
and other defects pointed out in the lawsuit recently filed by Citizens
Planning Responsibly (CPR) . J
1%CCUNCIL ,-'CDD DIR
CAO C:eFIN DIR
I ACAO Zi FIRE CHIEF
PO Box 4312 ATTORNEY �iPW DIR
San Luis Obispo, CA 93403-4312 CLERK,0RIG f:-POUCE CHF
805-546-1112 I F1 DE T HEADS ZcREC DIR
/_ undlu �Ll -E� UTIL D!R
FY-1 i
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2. No Prior Direction Given to Pursue an All-mail Election
The staff report states that the City Council directed staff to
consider the all-mail ballot approach if one or more of our petitions
qualified for a vote. When was that direction given? We have been
following this matter closely and know of no such direction to staff
having been given by the City Council.
3. The Legality of the All Mail-In Ballot Is Questionable.
It is not clear that the City would even be permitted to utilize
the all mail-in ballot for this referendum, since it is not a special
election to fill a vacancy in the legislative body or governing body.
Please note that Elections Code section 4004 [c] provides that:
" an electionin a small city or an eligible entity may be
conducted wholly as an all-mail ballot election, subject to the
following conditions:
(1) The legislative body of the small city or the governing body
of the eligible entity, by resolution, authorizes the use of mailed
ballots for the election.
(2) The election is a special election to fill a vacancy in the
legislative body or governing body.
(3) The election is not held on the same date as a statewide
primary or general election.
(4) The election is not consolidated with any other election.
(5) The return of voted mail ballots is subject to Section 3017.
This special election does not deal with filling a vacancy. While
provisions of the law may permit all-mail votes on tax measures or
assessments, we know of none that permit an issue such as the
Marketplace project to be voted on in an all-mail ballot. In the case
of a referendum, the City's own charter (section 304) requires that
state election code procedures be followed. Rather than waste money on
legal fees litigating this and other legal issues that might arise, the
Council would be most prudent to reject the all mail-in ballot for this
election.
4. Altering the Voting Procedure for this Referendum Is Risky
and Wrong.
The staff report asks you to proceed down the path of having
this election handled in an unconventional way that has not been used
in the City before, namely, an all-mail ballot. It goes further to
suggest the voting process be handled, not by public officials as
usual, but by a private company. Save San Luis Obispo urges the Council
to reject this notion. Feelings about the Marketplace are high in the
community and this situation will worsen if fears of manipulation if
doubts about the election process are introduced.
Curiously, the staff report ignores any discussion of any of the
negatives associated with an all-mail election. A brief review of
material on the Internet reveals a host of problems other agencies have
experienced, including allegations of vote buying, fraud, vote
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tampering, lost or uncounted ballots, and the loss of confidentiality
in the voting process.
The fact Save San Luis Obispo has gathered approximately 14,000
signatures on three petitions shows that a significant number of
registered voters are challenging the City Council's decision on the
Marketplace. If Council' s response to this challenge is to suddenly and
drastically change the voting process, distrust will inevitably
increase. This would be very bad for the city. Instead, the Council
- should -show respect-for the voters and allow the normal, time-honored
poll voting process, with all of its voter protections, to take place.
It is especially important that this particular election be
conducted with the utmost professionalism because the voters are
exercising their constitutional right to bring a referendum to the
ballot. Public officials should conduct the process, not private
contractors who have no civic responsibilities, and are possibly paid
by the developer. The residents of San Luis Obispo need to know with
certainty that no one has tampered with the voting process. Voters
deserve to have this referendum to be conducted according the normal,
trustworthy precinct district polling process. Council should reject
the idea of mail-in ballot for this election all-together.
Staff suggests pursuing an all-mail election will increase voter
turnout. But that is not a problem in San -Luis Obispo. Our city has an
unusually high voter turn out. Further, with the strong feelings that
exist in the community about the Marketplace, can anyone imagine that
voters will not be actively engaged in this election? Our precinct
polling system works. If it is not "broke," don't fix it.
Sincerely,
Kent M. Taylor,
Save San Luis Obispo
Cc: Jonathan Wittwer, Esq.
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