HomeMy WebLinkAbout15 - OB-2 - Election Code Section 9212 Report; - 7/5/2016CITY COUNCIL AGENDA REPORT
MEETING DATE: July 5, 2016 ITEM NUMBER: OB -2
SUBJECT: ELECTION CODE SECTION 9212 REPORT ON "AN INITIATIVE
REQUIRING CHANGES IN USE AT FAIRVIEW PARK BE SUBJECT TO
VOTER APPROVAL", CONSIDER PLACING THE INITIATIVE ON THE
NOVEMBER 8, 2016 BALLOT; AND PROVIDE DIRECTION ON AN
ALTERNATIVE MEASURE
DATE: JUNE 24, 2016
FROM: CITY CLERK AND CITY ATTORNEY'S OFFICE
PRESENTATION BRENDA GREEN, CITY CLERK
BY: BART MEJIA, CITY ENGINEER
YOLANDA SUMMERHILL, DEPUTY CITY ATTORNEY
FOR FURTHER INFORMATION CONTACT: BRENDA GREEN, CITY CLERK, 714-754-5225
RECOMMENDATION:
Staff recommends that the City Council:
1. Receive the Elections Code Section 9212 report regarding the initiative.
2. Order placement of the measure on the November 8, 2016 consolidated municipal
election by adopting the following resolutions:
a. Resolution 2016-41: Calling and giving notice for the holding of a General
Municipal election to be held on November 8, 2016 for the submission to the
voters of a proposed ordinance entitled, "An Initiative Requiring Changes in use
at Fairview Park Be Subject to Voter Approval" (Attachment 3); and
b. Adopt Resolution 2016-42: Requesting the Orange County Board of
Supervisors to Consolidate a General Municipal election to be held on
November 8, 2016, for the purpose of submitting to the voters of the City of
Costa Mesa a question relating to the adoption of a proposed ordinance
entitled, An Initiative Requiring Changes in use at Fairview Park Be Subject to
Voter Approval" (Attachment 4); and
c. Adopt Resolution 2016-43: Authorizing written arguments for or against the
proposed ordinance "An Initiative Requiring Changes in use at Fairview Park Be
Subject to Voter Approval", setting priorities for filing written arguments,
determining the authors of the written arguments, and directing the City Attorney
to prepare an impartial analysis (Attachment 5).
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3. Provide special counsel with direction on an alternative measure to be placed on
the November 8, 2016 ballot.
BACKGROUND:
At the June 21, 2016 meeting, the City Council accepted the City Clerk's certification of
sufficient signatures to place a voter sponsored measured entitled "An Ordinance To Give
The People Of Costa Mesa A Vote To Determine What Significant Changes To Fairview
Park May Be Made" (hereinafter "Initiative") on the November 2016 general election
ballot. The City Council also considered whether to adopt the measure, place it on the
ballot and/or order an alternative measure.
The City Council provided staff with the following direction:
1) In accordance with Elections Code Section 9212, provide a report regarding the
measure's impact on Americans with Disabilities Act (hereinafter "ADA") and
related legal issues; and
2) Provide a city sponsored alternative measure that simply prohibits athletic
fields/ball fields without voter approval.
ANALYSIS:
A. Elections Code Section 9212 Report
Elections Code § 9212 authorizes the City Council to order a report of the Initiative's
impact on finances, use of land, infrastructure, open spaces, ability to attract business,
use of vacant property, among other impacts, as well as "any other matters that the
legislative body wishes to be considered in the report." At the June 21, 2016 meeting, the
City Council directed staff to prepare a report related to ADA and its potential legal
impacts.
1. Compliance with the ADA under the Initiative
When considering how the Initiative impacts the City's ability to comply with the ADA, the
most common legal challenges would include either a facial challenge or as -applied
challenge to the validity of the Initiative.
a. Facial Challenge to Initiative for Violation of the ADA
A facial invalidity claim is tenable only if the terms of the ordinance will not permit those
who administer it to avoid an invalid application to the complaining parties.' To prevail
with a facial challenge, the plaintiff must prove that the ordinance is invalid in all its
possible applications.2 Typically, a facial challenge to the validity of an ordinance requires
the court to consider only the text of the ordinance, not its application to the particular
circumstances of an individual .3 It is clear under Title II of the ADA, that the City is
prohibited in discriminating in "all services, programs, and activities" that it provides.
Thus, a facial challenge to the Initiative would potentially stand if it prohibited the City
from exercising its duty to comply with federal law -namely the ADA.
'Building Industry Assn. v. County of Stanislaus, (2010) 190 Cal.App.4th 582, 590.
2 Tobe v. CHy of Santa Ana, (1995) 9 CalAth 1069, 1084.
3 Arcadia Development Co v. City of Morgan Hill, (2011) 197 Cal. App. 4111526.
2
In reviewing the Initiative, it does not appear to prohibit the City from complying with its
legal obligations under the ADA. Specifically, Section 10 of the Initiative entitled
"Construction" states, "This ordinance shall be liberally construed to accomplish its
purpose. Nothing herein shall be construed ... to prohibit any activities required by State
or Federal law." Additionally, Section 3(A)(2)(iii) authorizes the installation of ADA
compliant rest areas along existing trails and any level concrete pads needed for those
rest areas..." Courts have generously interpreted initiatives that may overlap in some
areas in finding that "statute does not restrict or preempt the power of an initiative simply
because the initiative includes some elements of statewide concern."4 Finally, assuming
the Initiative was found to be facially invalid, Section 12 provides that any provision which
is found to be invalid "by a court of competent jurisdiction, the remaining sections ... shall
remain valid and enforceable." Although the Initiative would eliminate a number of
projects proposed under the current Fairview Park Master Plan, Section 10 of the Initiative
authorizes the City to comply with federal law -the ADA.
b. As -Applied Challenge to Validity of Initiative Based on ADA
Conversely, with an as -applied challenge, a plaintiff must demonstrate that an
impermissible injury is occurring or has occurred in the past.5 The Supreme Court has
held that the ADA does not require that persons with disabilities be given "adequate
recreational programs." However, the ADA does require that persons with disabilities be
given equal access to whatever benefits the City offers persons without disabilities.6 Thus,
the mere fact that the City does not operate a specific program to disabled persons does
not, in and of itself, constitute a violation of the ADA.
However, lower courts have distinguished circumstances where the elimination of
recreation services for the disabled has occurred. For instance, in Concerned Parents to
Save Dreher Park Center v. City of West Palm Beach, (S.D. Fla. 1994) 846 F. Supp. 986,
a Florida city had made available recreational and social programs and activities for
disabled individuals at Dreher Park.7 Budget constraints caused the city to make various
cuts, including effectively eliminating the existing recreational programs for disabled
individuals.6 The court concluded that the complete elimination of the programs at Dreher
Park likely violated the ADA because there were no equivalent programs available to fill
the void left by the closure. Although disabled individuals could theoretically participate
in the general recreational programs the city offered at other locations and the city was
not required to offer to the public (disabled or non -disabled) any type of recreational or
leisure programs in the first place, when it does provide and administer such programs, it
must use methods or criteria that do not have the purpose or effect of "defeating or
substantially impairing accomplishment of the objectives of the public entity's program
with respect to individuals with disabilities..."9
As previously indicated, the Initiative if adopted would prohibit the following programs
currently proposed under the Fairview Park Master Plan from going forward:
Fairview Park, east of Placentia Avenue:
Platforms/retaining walls for vista overlook area
° Shea Homes Limited Partnership v. County of Alameda, (2003) 110 Cal. App. 41h 1246.
'Tobe v. Santa Ana, (1995) 9 CalAth 1069, 1084.
6 Alexander v. Choate, (1985) 469 U.S. 287, 303, 105 S. Ct. 712.
7 Id. at 988.
8 Id. at 989.
B 28 C.F.R. § 35.130(b)(3).
4.1
• Museum/multipurpose building
• Constructing two paved parking lots to accommodate a total of 131 cars
• Playground
Fairview Park, west of Placentia Avenue:
• Covered picnic areas
• Bus turnaround
• Stairs to allow bluff access
• Grading bluffs to prevent erosion
New restrooms
Playground
• Boardwalk and pedestrian bridge
Other examples of activities that would be prohibited unless voter approval is obtained
include:
Completing structures that were under construction when the initiative became
effective
• Installing concrete curbs
Expanding existing buildings
• Installing additional lighting
Expanding park hours
Installing new trails not listed in the Fairview Park Master Plan
Installing water, electric, gas or sewer lines
• Expanding parking lots
Constructing retaining walls
• Increasing the number of community events such as concerts -in -the -park,
seasonal festivals or races
Increasing staffing to facilitate a greater number of park visitors
• Installing pergolas and gazebos
• Providing rest areas along trails that are larger than the minimum required by law,
or are within 100 feet of one another
None of the above projects are currently in existence at this time. However, a plaintiffs
attorney could argue that the elimination of these projects authorized under the Fairview
Park Master Plan, many of which would be ADA compliant, discriminates against the
disabled by "defeating or substantially impairing accomplishment of the objectives of the
public entity's program with respect to individuals with disabilities..."10 in violation of the
ADA.
B. Direction on the Alternative Measure
Special counsel proposes drafting an alternative measure that prohibits all Athletic Fields
at Fairview Park unless approved by a vote of the people. All passive recreational uses
that do not include Athletic Fields, including those outlined in the Fairview Park Master
Plan, would be allowed without a vote of the people, subject to State and Local law.
Athletic Fields would be defined as "A piece or part of a piece of property that is
developed, constructed, or otherwise improved for the purpose of facilitating active,
outdoor team sports, including but not limited to baseball fields, soccer fields, football
1028 C.F.R. § 35.130(b)(3).
112
fields, or volleyball courts, but expressly not including trails which might have multiple
purposes including bicycling, walking or running."
FISCAL REVIEW:
The cost for the signature verification of the initiative by the Orange County Registrar of
Voters Office is $20,485.00. The estimated election costs to add the initiative to the
consolidated general election is $10,000.00.
If adopted, the City would save monies on projects no longer authorized under the
initiative. Additionally, grants authorized prior to the adoption of the initiative would have
to be rescinded and/or returned to the granting authority. Finally, Election Code Section
9212 report and/or an alternative measure requires approximately 60 hours of staff, City
Attorney, and special counsel's time.
At present the estimated costs of implementing the ordinance is indeterminate.
LEGAL REVIEW:
The City Attorney's office has reviewed this report and has approved it as to form and legal
content.
YO DA S MMERHILL BRENDA GREE
y City AttgIney City Clerk
RICHARD L-FF�ANCIS
Assistant CEO
ATTACHMENTS: 1. June 21. 2016 Staff Report lexcludina attachments
2. Proposed Ordinance & Ballot Title and Summary
3. Resolution 16-41
4. Resolution 16-42
5. Resolution 16-43
5
ATTACHMENT 1
CITY COUNCIL AGENDA REPORT
MEETING DATE: June 21, 2016 ITEM NUMBER: NB -3
SUBJECT: INITIATIVE PETITION ENTITLED, "AN INITIATIVE REQUIRING CHANGES
IN USE AT FAIRVIEW PARK BE SUBJECT TO VOTER APPROVAL"
QUALIFYING FOR THE BALLOT; CONSIDERATION OF ADOPTING NEW
ORDINANCE, OR ORDERING REPORT
DATE: JUNE 10, 2016
FROM: CITY CLERK'S OFFICE; CITY ATTORNEY'S OFFICE;
PRESENTATION BRENDA GREEN, CITY CLERK
BY: BART MEJIA, CITY ENGINEER
YOLANDA SUMMERHILL, DEPUTY CITY ATTORNEY
FOR FURTHER INFORMATION CONTACT: BRENDA GREEN, CITY CLERK, 714-754-5225
RECOMMENDATION:
A. Staff recommends that the City Council:
1. Accept the Certificate of Sufficiency issued by the County of Orange Registrar of
Voters regarding, "An Initiative Requiring Changes in use at Fairview Park be
Subject to Voter Approval" (Attachment 1).
B. Further, it is recommended that the City Council approve one of the following
options:
1. Adopt the ordinance immediately, without alteration, or within 10 days after it is
presented (Attachment 2); or
2. Order placement of the measure on the November 8, 2016 consolidated municipal
election by adopting the following resolutions:
a. Resolution 2016-40: Calling and giving notice for the holding of a General
Municipal election to be held on November 8, 2016 for the submission to the
voters of a proposed ordinance entitled, "An Initiative Requiring Changes in use
at Fairview Park Be Subject to Voter Approval" (Attachment 3); and
b. Adopt Resolution 2016-41: Requesting the Orange County Board of
Supervisors to Consolidate a General Municipal election to be held on
November 8, 2016, for the purpose of submitting to the voters of the City of
Costa Mesa a question relating to the adoption of a proposed ordinance
H
entitled, An Initiative Requiring Changes in use at Fairview Park Be Subject to
Voter Approval" (Attachment 4); and
c. Adopt Resolution 2016-42: Authorizing written arguments for or against the
proposed ordinance "An Initiative Requiring Changes in use at Fairview Park Be
Subject to Voter Approval", setting priorities for filing written arguments,
determining the authors of the written arguments, and directing the City Attorney
to prepare an impartial analysis (Attachment 5); or
3. Order a report pursuant to Election Code § 9212 at the regular meeting at which
the certification of the petition is presented; or
4. Consider providing Staff with direction as to the preparation of an alternative
measure.
BACKGROUND:
The procedures for placing an initiative to enact an ordinance on the ballot are set forth
in California Election Code §§ 9200-9226.
On November 9, 2015, the City Clerk's office received an initiative measure entitled "An
Ordinance To Give The People Of Costa Mesa A Vote To Determine What Significant
Changes To Fairview Park May Be Made." In accordance with Elections Code Section
9203 the City Attorney prepared a ballot title and summary of the Initiative. The
Proponents of the initiative published the Notice of Intent to Circulate and were legally
permitted to circulate the petition November 29, 2015 to May 21, 2016. The petition
required 4,995 valid signatures to qualify for the 2016 General Election ballot. At the time
the Notice of Intention was filed, the voter registration report on file with the California
Secretary of State revealed 49,959 registered voters within Costa Mesa. California
Election Code § 9215 required that an initiative petition be signed by at least 10% of the
total number of eligible registered voters to qualify for the next General Municipal Election.
On May 2, 2016, the Proponents of the initiative petition filed the signed petitions. The
City Clerk conducted a prima facie review and determined there was a sufficient number
of signatures to proceed: 7135 total tally. On May 2, 2016, the petition was delivered to
the County of Orange Registrar of Voters Office for signature verification. The Orange
County Registrar of Voters has examined the records of voter registration for the City of
Costa Mesa and has determined that the initiative petition has been signed by no less
than 10% of City of Costa Mesa registered voters. Therefore the initiative petition is
sufficient to be certified to the City Council. The Election Code requires the City Clerk to
certify to the City Council any initiative petition, which qualifies for an election. (Elections
Code §§ 9211 & 9114). Refer to Attachment No. 1 for Certification.
The City Council has the option to either adopt the Initiative or place the measure on the
ballot for the November 8, 2016 statewide general election. Alternatively, the City Council
may abstain from any decision-making on the ballot measure at this time and, instead,
direct staff to prepare a report to determine the impacts of the measure before deciding
whether to adopt the initiative and/or place it on the ballot. Finally, the City Council may,
in addition to placing this measure on the ballot, elect to place an alternate measure on
the ballot.
ANALYSIS:
In sum, the initiative makes certain changes in land use at Fairview Park subject to voter
approval including expansion or intensification of uses, new or expanded amenities, new
or expanded parking lots, grading, new foundations or permanent structures, installation
of lighting or utility delivery systems and/or extension of park hours.
The Initiative provides exceptions to the voter approval requirement for (1) restoration, (2)
preservation, (3) maintenance, (4) public safety, (5) expanding Fairview Park's size, (6)
improvements pursuant to the Fairview Park Master Plan which do not require installing
permanent structures, and (7) certain changes approved and completed before the
initiative's effective date.
In reviewing the Fairview Park Master Plan, Public Services Department determined the
following provisions of the Fairview Park Master Plan could not be implemented without
voter approval:
Fairview Park, east of Placentia Avenue:
• Platforms/retaining walls for vista overlook area
• Museum/multipurpose building
• Constructing two paved parking lots to accommodate a total of 131 cars
• Playground
Fairview Park, west of Placentia Avenue:
• Covered picnic areas
• Bus turnaround
• Stairs to allow bluff access
• Grading bluffs to prevent erosion
• New restrooms
• Playground
• Boardwalk and pedestrian bridge
Other examples of activities that would be prohibited unless voter approval is obtained
include:
• Completing structures that were under construction when the initiative became
effective
• Installing concrete curbs
• Expanding existing buildings
• Installing additional lighting
• Expanding park hours
• Installing new trails not listed in the Fairview Park Master Plan
3
• Installing water, electric, gas or sewer lines
• Expanding parking lots
• Constructing retaining walls
• Increasing the number of community events such as concerts -in -the -park,
seasonal festivals or races
• Increasing staffing to facilitate a greater number of park visitors
• Installing pergolas and gazebos
• Providing rest areas along trails that are larger than the minimum required by law,
or are within 100 feet of one another
FUNDING IMPACTED BY INITIATIVE
The following grant awarded to the City of Costa Mesa would have to be returned if the
Initiative is adopted.
Granting Auth rity
Amount
Project Description
OCTA, Bicycle Corridor
Improvement Pro ram
$835,959
Fairview Park Multipurpose
Trail
The City received $200,000 from California State Parks for Habitat Conservation Fund to
restore the north bluff trail and habitat restoration. At this time, staff believes that this grant
may still be utilized if the Initiative is adopted. However, Public Services will confirm with
California State Parks that no permanent structures potentially prohibited under the Initiative
would require the City to return those funds.
Election Code Requirements
Pursuant to Elections Code § 9214 if an initiative petition is signed by not less than 10
percent of the registered voters of a city, the legislative body shall do one of the following:
a) Adopt the ordinance, without alteration, at the regular meeting at which the
certification of the petition is presented, or within 10 days after it is presented;
or
b) Submit the ordinance, without alteration, to the voters pursuant to subdivision
(b) of Section 1405; or
c) Order a report pursuant to Section 9212 at the regular meeting at which the
certification of the petition is presented. When the report is presented to the
legislative body, the legislative body shall either adopt the ordinance within 10
days or order an election pursuant to subdivision (b).
Elections Code § 9212 ["Referral of proposed initiative measure to city agency for report"]
("EC 9212 Report") provides that the City Council may refer the proposed initiative
measure to any city agency or agencies for a report on any matter the City Council
requests to be in the report, including but not limited to:
1. Its fiscal impact; and/or
Its effect on the internal consistency of the city's general and specific plans,
including the housing element, the consistency between planning and zoning, and
the limitations on city actions under Section 65008 of the Government Code and
Chapters 4.2 (commencing with Section 65913) and 4.3 (commencing with Section
65915) of Division 1 of Title 7 of the Government Code; and/or
3. Its effect on the use of land, the impact on the availability and location of housing,
and the ability of the city to meet its regional housing needs; and/or
4. Its impact on funding for infrastructure of all types, including, but not limited to,
transportation, schools, parks, and open space. The report may also discuss
whether the measure would be likely to result in increased infrastructure costs or
savings, including the costs of infrastructure maintenance, to current residents and
businesses; and/or
5. Its impact on the community's ability to attract and retain business and employment;
and/or
6. Its impact on the uses of vacant parcels of land; and/or
Its impact on agricultural lands, open space, traffic congestion, existing business
districts, and developed areas designated for revitalization; and or
8. Any other matters that the legislative body wishes to be considered in the report.
Elections Code Section 9212 requires the report to be presented to the City Council no
later than 30 days after the elections official certifies to the legislative body the sufficiency
of the initiative petitions.
This staff report covers many of the areas that the EC 9212 Report would address. For
example, the projects listed at the beginning of the Analysis that would require voter
approval essentially cover 3, 4 and 7 above. Additionally, the "Grants Impacted by the
Initiative" addresses fiscal impacts as well as costs listed in the Fiscal Review. However,
if there are additional areas that City Council would like to consider, staff can provide that
information.
61
IIR191111111111VAT114'ITF
The cost for the signature verification of the initiative by the Orange County Registrar of
Voters Office is $20,485.00. The estimated election costs to add the initiative to the
consolidated general election is $10,000.00.
If adopted, the City would save monies on projects no longer authorized under the
initiative. Additionally, grants authorized prior to the adoption of the initiative would have
to be rescinded and/or returned to the granting authority. Finally, Election Code Section
9212 report and/or an alternative measure would require approximately 80 hours of staff
time and 40 hours of City Attorney time.
At present the estimated costs of implementing the ordinance is indeterminate
LEGAL REVIEW:
The City Attorney's office has reviewed this report and has approved it as to form and legal
content.
YOLANDA SUMMERHILL BRENDA GREEN
Deputy City Attorney City Clerk
RICHARD L. FRANCIS
Assistant CEO
ATTACHMENTS: 1. Certificate of Sufficiency
2. Proposed Ordinance & Ballot Title and Summary
3. Resolution 16-40
4. Resolution 16-41
5. Resolution 16-42
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INITIATIVE MEASURE TO BE SUBMITTED DIRECTLY TO THE VOTERS,
AN ORDINANCE TO GIVE THE PEOPLE OF COSTA MESA A VOTE TO
DETERMINE WHAT SIGNIFICANT CIIANGF,S TO FAIRVIEW PARICri AY B
MADE.
The proposed ordinance reads as follows: 4 <
The people of Costa Mesa declare the following: T
1
taI
cn �.
1. Parks, wildlife habitat, and open -space lands are vital to maintaining the quality (M
life in Costa Mesa. As the City's population increases, it is of growing importance
to provide parks and recreational opportunities to the residents of Costa Mesa.
2. Preservation of Costa Mesa's unique natural heritage is in the interest of all Costa
Mesa residents and visitors.
3. Fairview Park is a unique recreational resource and should be preserved and
restored as such, in perpetuity, for the public to enjoy.
4. The intent of the City of Costa Mesa in its purchase of Fairview Parkas
documented in the 1986 purchase agreement and grant deed, and demonstrated by
the development and implementation of the Fairview Park Master Plan was to
preserve and protect the last of Costa Mesas natural open space.
>. There is a need to protect Fairview Park from alterations that reduce the tangible
and intangible benefits to the public while visiting and exploring this natural,
open space.
6. Fairview Park is a passive use park, developed to promote activities such as
walking, hiking,jogging, running, bicycling, glider flying, kite flying, dog
walking, picnicking, small group physical activities and similar uses.
7. Fairview Park, historically, has not been a site for organized sports activities that
require amenities to be developed or built to meet the general need of those sports
activities.
8. Currently, Fairview Park provides essential habitat for species of special
significance, some of which are federally protected species which are in danger of
extinction. The Park contains plants and animals, archeologically sensitive sites,
and extremely rare vernal pools which need to be protected for future generations.
9. Once a change is instituted, and the natural land is unnaturally altered, it will be
lost for future generations.
Page I of 6
10, The registered voters of Costa Mesa should have the right to decide whether a
change in Fairview Park as previously or currently proposed, but not constructed,
should be allowed.
NOW, THEREFORE, THE PEOPLE OF THE CITY OF COSTA MESA DO
ORDAIN AS FOLLOWS:
See. -1. Code Amendment. This Ordinance is added to and amends the Costa Mesa
Municipal Code as follows and supersedes any provisions that are
inconsistent with this ordinance.
Sec. -2. Purpose. The purpose of this ordinance is to:
A. Keep Fairview Park as a natural and open space as documented in the
Fairview Park Master Plan as defined below.
B. Give the citizens of Costa Mesa a voice in determining whether the
development of a project beyond the As Built condition of Fairview
Park shall be allowed or not.
C. Ensure that the Costa Mesa officials provide timely, accurate and
unbiased review of any such proposed development or change to
Fairview Park.
D. Ensure that the Citizens of Costa Mesa receive all necessary and
accurate environmental and relevant information needed to cast an
informed vote on any such proposed development or change.
Sec. -3. Definitions. The definitions set forth in this section apply to the provisions
of this ordinance only and do not affect any other provisions of law.
A. "Significant Change" means:
1. any of the following activities within Fairview Park:
i. expansion or intensification of uses, or
ii. expansion of current amenities, or
iii. addition of new amenities, or
iv. expansion of park hours, or
v, grading, or
vi. expansion of any parking lot's footprint, or
vii, laying of foundations, or
viii. building of permanent Structures, or,
ix. installation of water, electric, gas, or sewer lines or delivery
systems, or
x. installation of additional lighting, or,
xi. alterations that use geotechnical or structural analyses.
2. The following shall not be considered a "Significant Change"
under this ordinance:
i. installation of trash cans, park benches, picnic tables, or,
ii. installation of a concrete pad applied to any such trash
cans, park benches, or picnic tables, used to provide
Page 2 of 6
stability and/ or theft deterrence, so long as the upper
surface area of such pad does not substantially exceed the
outer footprint dimensions of said trash can, park bench or
picnic table, or
iii. installation of ADA compliant rest areas along existing
trails and any level concrete pads needed for those rest
area as long as the coverage area of those concrete pads
are not in excess of the minimum required dimensions for
ADA compliance and are spaced from other such pads a
minimum of one hundred (100) linear feet or per ADA
required spacing intervals.
B. "As -Built Condition" means the amenities and alterations that have
been built in Fairview Park as of the effective date of this ordinance.
o. "Fairview Park" means that area as defined by the City of Costa
Mesa in the November 2008 Fairview Park Master Plan, encompassing
all parts of the park area designated as "Fairview Parlc" and any lands
currently included in Talbert Park (also known as Talbert Regional
Park and Talbert Nature Preserve) if ever acquired by the City of Costa
Mesa.
D. "Fairview Park Master PIan" means the document and its
amendments approved by the City of Costa Mesa to guide the
continuing and future alterations to Fairview Park that have been in
effect since November 2008.
E. "Preservation" or "Preservation efforts" means any activity whose
purpose is to protect the natural state of Fairview Park. Those activities
could include, but are not limited to, improved signage of an
educational or warning nature, educational activities, and activities
intended to protect vernal pools, archaeological sites, habitat or
biological resources, including installation of protective fencing.
F. "Restoration" means any act or activity whose propose is to restore
any part of Fairview Park to its natural non-developed state. Those
activities could include: the removal of non-native or invasive plants,
replanting of native habitat areas utilizing the on site collection of
seeds and native plant materials, and improvement of the watersheds
to enhance the proper clow of water in support of endangered species
of plants or animals and the habitat that supports their survival.
G. "Maintenance" means any activity whose purpose is to keep the park
amenities in a neat, clean, serviceable and safe condition for the
public's use. Those activities would include, but are not limited to:
mowing of turf areas, painting, replacement of broken lights and bulbs,
repair of restroom facilities, rehabilitation and restriping of existing
Page 3 of 6
roads and parking lots, repair of any existing Structures, and
maintenance of existing paths or trails to allow safe access and use by
emergency response vehicles.
H. "Natural Lands" means an area of relatively undeveloped land
which:
1. has substantially retained its characteristics as provided by nature
or has been substantially restored, or which can be restored, to a
near -natural condition, and which has valuable wildlife, scenic,
open -space, or park resources, or a combination thereof, or
2. meets the definition of open -space land in Section 65560 of the
California State Government Code.
t. "Park" means a tract of land with outstanding scenic, natural, open -
space, or recreational aspects, set apart to conserve natural, scenic,
cultural, or ecological resources for present and future generations, and
to be used by the public as a place for rest, recreation, education,
exercise, inspiration, or enjoyment.
a. "Structure" means something constructed for occupancy or use,
whether installed on, above or below ground and any connected
fixtures. Examples of structures include, but are not limited to:
1. buildings and any above ground or below ground electrical,
water, gas, or sewage facilities or delivery systems needed or
used by those buildings, or
2. roads paved with concrete or asphalt, or
3. curbs constructed of concrete or asphalt, or
4. lamp stands or poles, or
5. pergolas, or gazebos, or
e. parking lots,
7, retaining walls, or
B. microwave or communication towers.
Sec. -4. Effective Date, Applicability.
A. This ordinance shall be binding and effective as of the earliest date
allowed by law (the "Effective Date"). At its first public meeting
following completion of the canvass of votes, the Costa Nlesa City
Council shall pass the resolution required by Elections Code Section
9266. The following day, the elections official of Costa Mesa shall
cause a copy of the complete text of the adopted measure to be filed
with the Secretary of State pursuant to Government Code Sections
34459 and 34460.
B. Pursuant to Elections Code Section 9205, all alterations to Fairview
Park after notice of intention to circulate the initiative petition adding
this ordinance to the City Municipal Code shall be subject to the
Page 4 of 6
provisions of this ordinance.
Sec. -5. Vote of the Costa Mesa 1riectorate on any alteration to i+alrviciv Farb.
A Any Significant Change, except those listed in Sec. 6 below, to
Fairview Park shall be put to a vote of the Costa, Mesa Electorate,
provided, however, that no such Significant Change shall be submitted
to the Costa Mesa electorate unless it has first been approved by the
appropriate governing body. A Significant Change to Fairview Park
shall become effective only after approval by the appropriate
governing body and a majority of the Costa Mesa electorate who are
participating in an election, proposing such Significant Change, An
advisory election does not satisfy the voter approval requirement.
B. The sample ballot materials mailed to the registered voters of Costa
Mesa prior to an election shall describe any Significant Change to
Fairview Park in a manner that clearly discloses both the scope and
main features of the entire proposal (Including any development or
construction phases) that the Significant Change to Fairview Park
includes, consists of or depends on; and the location and the acreage
that will be affected by the Significant Change. The description shall
clearly compare the proposal to the As -Built condition. Easily readable
maps shall be provided to assist the voters in understanding the
description of the proposed Significant Change. All of theinformation
called for by this subdivision shall be posted on Costa Mesa's website
no later than thirty (30) days prior to alt electorate election to approve
or deny said change.
c The popular vote required by this ordinance shall be in addition to all other
applicable review and approval requirements for such Significant Change,
including enviromnental review in compliance with the California Enviromnentai
Quality Act ("CEQA").
See, 6. Exceptions,
A. This ordinance shall not apply to any Significant Changes to Fairview
Paric that are made for:
M. restoration purposes, or;
2. preservation purposes, or;
3. maintenance purposes, or;
4. public safety, or;
a. to exTand the size of Fairview Parlc, such as by City acquisition
of lands currently contained in Talbert Panic, or
6. Significant Changes as directed in the Fairview Park Master
Plan, that is in effect as of January 1, 2015, as long as that
direction does not require the construction of any permanent
structure.
Page 5 of 6
B. This ordinance shall not apply to any Significant Change to Fairview
Park that is legally approved and completed prior to the effective date
of this ordinance.
Sec. -7. Relationship to Municipal Code. If any provision of this ordinance conflicts
with other provisions contained in the Costa Mesa Municipal Code, the
provisions of this ordinance shall supersede any other conflicting provision.
Sec. -8. Amendments. No provision of this ordinance may be amended or repealed
except by a vote of the People of Costa Mesa.
Sec. -9. Judicial Enforcement. Any aggrieved person shall have the right to bring
an action to enjoin any violation of this ordinance or to enforce the duties
imposed on Costa Mesa by this ordinance.
See.____10. Construction. This ordinance shall be liberally construed to accomplish its
purposes. Nothing herein shall be construed to make illegal any lawful use
being made of any land in accordance with the Fairview Park Master Plan
and City land use and zoning regulations in force before the effective date of
this ordinance, or to prohibit any activities required by State or Federal Law.
See. -11. Consistency with Other Ballot Measures. If another ballot measure is
placed on the same ballot as this measure and deals with the same subject
matter, and if both measures pass, the voters intend that both measures shall
be put into effect, except to the extent that specific provisions of the measures
are in direct conflict. In the event of a direct conflict, the measure which
obtained more votes will control as to the directly conflicting provisions only.
The voters expressly declare this to be their intent, regardless of any contrary
language in any other ballot measure.
Sec. -12. Severability. If any section, subdivision, clause, sentence, phrase or portion
of this ordinance is declared invalid by a court of competent jurisdiction, the
remaining sections, subdivisions clauses, sentences, phrases and portions
shall remain valid and enforceable. The voters declare that they would have
passed all sections, subdivisions, clauses, sentences, phrases and portions of
this ordinance without the section, subdivision, clause, sentence, phrase or
portion declared invalid by a court of competent jurisdiction.
Sec. -13. Acts Beyond Control. Nothing in this ordinance shall be construed to bring
action against the City for any injury to or change resulting from any natural
cause beyond the control of the City, including without limitation, fire, flood,
storm and earth movement.
Sec. -14. Prohibited Uses: Any activity or use of Fairview Park inconsistent with
the purpose of this ordinance is prohibited.
Page 6 of 6
AN INITIATIVE REQUIRING CHANGES IN USE AT FAIRVIEW PARK BE SUBJECT
TO VOTER APPROVAL
The initiative prohibits certain changes in land use at Fairview Park unless the City of
Costa Mesa pays for and conducts a citywide election, and the electorate votes in favor
of the proposal.
In general, the initiative requires voter approval each time Costa Mesa authorizes any
expansion or intensification of uses, new or expanded amenities, expansion of park
hours, grading, expanding parking lots, new foundations or permanent structures,
installation of fighting or utility delivery systems, and alterations using geotechnical or
structural analysis.
Exceptions apply to (1) restoration, (2) preservation, (3) maintenance, (4) public safety,
(5) expanding Fairview Park's size, (6) improvements pursuant to the Fairview Park
Master Plan which do not require Installing permanent structures, and (7) certain
changes approved and completed before the initiative's effective date.
The following are examples of projects currently authorized under the Fairview Park
Master Plan that could not be implemented without voter approval:
Fairview Park, east of Placentia Avenue:
• Playground
Platforms/retaining walls for vista overlook area
• MuseumJmultipurpose building
• Constructing two paved parking lots to accommodate a total of 131 cars
Fairview Park, west of Placentia Avenue:
• Playground
• Covered picnic areas
• Bus turnaround
• Stairs to allow bluff access
• Grading bluffs to prevent erosion
• New restrooms
• Boardwalk and pedestrian bridge on new trail
Other examples of activities that would be prohibited unless voter approval is obtained
include:
• Completing structures that were under construction when the initiative became
effective
® Concrete curbs
® Expanding existing buildings
Installing additional lighting
® Expanding park hours
New trails not listed in the Fairview Park Master Plan
Installing water, electric, gas or sewer lines
• Expanding parking lots
• Constructing retaining walls
• Increasing the number of community events such as concerts -in -the -park,
seasonal festivals or races
• Pergolas and gazebos
• Rest areas along trails that are larger than the minimum required by law, or are
within 100 feet of one another
The following are examples of activities that would be allowed without an election:
• Activities authorized in the Fairview Park Master Plan not requiring the
construction of any permanent structure
• Restoring Fairview Park to its natural non-developed state
• Replacing non-native trees with native trees
• Activities intended to protect habitat, vernal pools, burial grounds and artifacts
• Removing paths, parking lots or existing man-made improvements
• improving educational signage
• Repairing existing structures
• Maintaining existing roads, trails and parking lots
• Adding landto Fairview Park
• Mowing
• Replacing broken lights
• Installing trash cans, park benches and picnic tables without coverings
The initiative requires specific information be included in any sample ballot mailed to
registered voters regarding a proposed change to Fairview Park. The initiative also
requires compliance with the California Environmental Quality Act. The initiative could
not be amended without voter approval.
ATTACHMENT 3
RESOLUTION NO. 16-41
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF COSTA MESA, CALIFORNIA,
CALLING AND GIVING NOTICE FOR THE HOLDING OF A GENERAL MUNICIPAL
ELECTION TO BE HELD ON NOVEMBER 8, 2016, FOR THE SUBMISSION TO THE VOTERS
OF A PROPOSED ORDINANCE
THE CITY COUNCIL OF THE CITY OF COSTA MESA HEREBY RESOLVES AS
FOLLOWS:
WHEREAS, pursuant to authority provided by statute a petition has been filed with the
legislative body of the City of Costa Mesa, California, signed by more than ten percent (10%)
of the number of registered voters of the city to submit a proposed ordinance entitled: An
Initiative Requiring Changes in Use at Fairview Park be Subject to Voter Approval; and
WHEREAS, the City Clerk has caused to be examined, through the office of the Orange
County Registrar, the records of registration and is in receipt of that certain "Certificate as to
Verification of Signatures on Petition," from the Orange County Registrar, has examined such
certificate and has accepted as true and correct the findings contained therein and, thereby,
ascertained that the petition is signed by the requisite number of voters; and
WHEREAS, the City Council has not voted in favor of the adoption of the ordinance; and
WHEREAS, the City Council is authorized and directed by statute to submit the proposed
ordinance to the voters;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF COSTA MESA,
CALIFORNIA, DOES HEREBY RESOLVE, DECLARE, DETERMINE, AND ORDER AS
FOLLOWS:
SECTION 1. The foregoing recitals are true, correct, and adopted by the City Council as if
set forth in full.
SECTION 2. That pursuant to the requirements of the laws of the State of California relating
to general law cities there is called and ordered to be held in the City of Costa Mesa, California
on November 8, 2016 a General Municipal Election for the purpose of submitting the following
proposed ordinance:
Measure _: An Initiative Requiring Changes in Use at
Fairview Park be Subject to Voter Approval
Response
Vote
Shall an ordinance requiring voter approval for
1) construction of playgrounds, athletic fields,
Yes
platforms/retaining walls for vista overlook, stairways to
provide access to bluffs, new restrooms, parking lots,
No
museum/multipurpose building, boardwalk and pedestrian
bridges; 2) extended park hours for community events; 3)
installation of parking lot lighting; or 4) other permanent
structures at Fairview Park be adopted?
Resolution No. 16-41 Page 1
SECTION 3. That the proposed complete text of the ordinance submitted to the voters is
attached as Exhibit A.
SECTION 4. That the vote requirement for the measure to pass is a majority (50% +1) of
the votes cast.
SECTION 5. That the ballots to be used at the election shall be in the form and content as
required by law.
SECTION 6. That the City Clerk is authorized, instructed, and directed to coordinate with
the County of Orange Registrar of Voters to procure and furnish any and all official ballots,
notices, printed matter, and all supplies, equipment, and paraphernalia that may be necessary in
order to properly and lawfully conduct the election.
SECTION 7. That the polls for the election shall be open at 7 a.m. of the day of the election
and shall remain open continuously from that time until 8 p.m. of the same day when said polls
shall be closed, pursuant to Election Code Section 10242, except as provided in Section 14401
of the Elections Code of the State of California.
SECTION 8. That the Orange County Registrar of Voters is authorized to canvass the
returns of the General Municipal Election.
SECTION 9. That in all particulars not recited in this resolution, said election shall be held
and conducted in accordance with the provisions of law regulating the statewide election.
SECTION 10. That notice of the time and place of holding the election is given and the City
Clerk is authorized, instructed, and directed to give such further or additional notice of the
election, in the time, form, and manner required by law.
SECTION 11. The Costa Mesa City Council hereby requests that the Orange County
Registrar of Voters conduct all necessary services related to the Costa Mesa General Municipal
Election. Pursuant to Elections Code Section 10002, the Finance Director, or his/her designee,
is hereby authorized to reimburse the County for the actual cost incurred in conducting the
election upon receipt of a bill stating the amount due as determined by the elections official.
SECTION 12. That the City Clerk shall certify to the passage and adoption of this
resolution.
PASSED, APPROVED, AND ADOPTED at a regular meeting of the City Council of the
City of Costa Mesa on this 5th day of July, 2016.
Stephen M. Mensinger, Mayor
Resolution No. 16-41 Page 2
ATTEST:
Brenda Green, City Clerk
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss
CITY OF COSTA MESA )
APPROVED AS TO FORM:
Thomas Duarte, City Attorney
I, BRENDA GREEN, City Clerk of the City of Costa Mesa, DO HEREBY CERTIFY that
foregoing Resolution No. 16-41 was duly passed and adopted by the City Council of the City of
Costa Mesa at a regular meeting held on the 5t" day of July, 2016, by the following roll call
vote, to wit:
AYES: COUNCIL MEMBERS:
NOES: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
IN WITNESS WHEREOF, I have hereby set my hand and affixed the seal of the City of Costa
Mesa this 5t" day of July, 2016.
BRENDA GREEN, CITY CLERK
Attachment: Exhibit A — Proposed Ordinance
Resolution No. 16-41 Page 3
1Nf['IA.TIVI- ML ASURE TO BE SUHMff TED DIRECTLY TO THE VO`T'ERS,
AN ORDINANCE'lTO GIVETHE PEOPLE OF COSTA MESA A VOTE TO
DETFRMINE WIlAT SIGNIFICANT CHANGES TO FAIRY EW PARKrMAY BF®
MADE,
r ffi
The proposed ordinance reads as follows:
cr. red
c�
The people of Costa Mesa declare the following:
CD
t.J7
1. Parks, wildlife habitat, and open -space lands are vital to maintaining the quality c
life in Costa Mesa. As the City's population increases, it is of growing importance
to provide parks and recreational opportunities to the residents of Costa Mesa.
3. Preservation of Costa Mesa's unique natural heritage is in the interest of all Costa
Mesa residents and visitors.
3. Fairview Park is a unique recreational resource and should be preserved and
restored as such, in perpetuity, for the public to enjoy.
4. The intent of the City of Costa Mesa in its purchase of Fairview Park as
documented in the 1986 purchase agreement and grant deed, and demonstrated by
the development and implementation of the Fairview Park Master Platt was to
preserve and protect the last of Costa Mesa's natural open space.
5. There is a need to protect Fairview Park from alterations that reduce the tangible
and intangible benefits to the public while visiting and exploring this natural,
open space.
6. Fairview Park is a passive use park, developed to prornote activities such as
walking, hiking,jogging, running, bicycling, glider flying, kite flying, clog
walking, picnicking, small group physical activities and similar uses.
7, Fairview Park, historically, has not been a site for organized sports activities that
require amenities to be developed or built to meet the general need of those sports
activities.
S. Currently, Fairview Park,provides essential habitat for species of special
significance, sonre of which are federally protected species which are in dagger of
extinction.The Park contains plants and animals, archeologically sensitive sites,
and extremely rare vernal pools which need to be protected for future generations.
9. Once a change is instituted, and the natural Land is Unnaturally altered, it will be
lost for future generations.
Page I of 6
10. The registered voters of Costa Mesa should have the right to decide whether a
change in Fairview hark as previously or currently proposed, but not constructed,
should be allowed.
NOW, THEIt,FORE, THE PEOPLE OF THE CITY OF COSTA MESA DO
012DAIN AS FOLLOWS,
Sec.—I. Code Amendment. This Ordinance is added to and amends the Costa Mesa
Municipal Code as follows and supersedes any provisions that are
inconsistent with this: ordinance.
Sec._ 2. Purpose. The purpose of this ordinance is to:
A, Keep Fairview Park as a natural and open space as documented in the
Fairview Park Master Plan as defined below.
B. Give the citizens of Costa Mesa a voice in determining whether the
development of project beyond the As Built condition of Fairview
Park shall be allowed or not,
C. Ensure that the Costa Mesa officials provide timely, accurate and
unbiased review of any such proposed development or change to
Fairview Park.
D. Ensure that the Citizens of Costa Mesa receive all necessary and
accurate environmental and relevant information needed to cast an
informed vote on any such proposed development or change.
Sec.___ 3. Definitions. The definitions set forth in this section apply to the provisions
of this ordinance only and do not affect any other provisions of law.
A. "Significant Change"'means:
1. any of the following activities within Fairview Park:
is expansion or intensification of uses, or
ii. expansion of current amenities, or
iii. addition of new amenities, or
iv; expansion of park hours, or
v. grading, or
vi, expansion of any parking lot's footprint, or
vii, laying of foundations, or
viii. building of permanent Structures, or,
ix, installation of water, electric, gas,, or sewer lilies or delivery
systems, or
x, installation of additional lighting, or,
xi. alterations that use geotechnical or structural analyses.
2. The following shall .not be considered a "Significant Change"
tinder this ordinance:
i, installation of trash cans, park benches, picnic tables, or,
ii; installation of a concrete pad applied to any such trash
cams, park benches, or picnic tables, used to provide
Page 2 of 6
stability and/ or theft deterrence, so long as the upper
surface area of such pad does not substantially exceed the
outer footprint dimensions of said trash can, park bench or
picnic table, or
iii. installation of ADA compliant rest areas along existing
trails and any level concrete pads needed for those test
tineaas long as the coverage area of those concrete pads
are not in excess of the minimum required dimensions for
ADA compliance and are spaced from other such pads a
minimum of one hundred (100) linear feet or per ADF1,
required spacing intervals:
B. "As -Built Condition" means the amenities and alterations that have
been built in Fairview Park as of the effective date of this ordinance,
C. "lwair-view Parlc" means that area as defined by the City of Costa
Mesa in the November 2008 Fairview Park Master Plan, encompassing
all parts of the park area designated as "Fairview Park" and any lands
currently included in Talbert Park (also known as Talbert Regional
Paris and Talbert Nature Preserve) if ever acquired by the City of Costa
Mesa,
D. "Fairview Park Master Plan" means the document and its
amendments approved by the City of Costa Mesa to guide the
continuing and future alterations to Fairview Park that have been in
effect: since' November 2008.
E. "Preservation" or "Preservation efforts" rneans any activity whose
purpose is to protectthestate of Fairview Park, Those activities
could include, but are not limited to, improved signage of an
educational or warning nature, educational activities, and activities
intended to protect vernal pools, archaeological sites, habitat or
biological resources, including installation of protective fencing.
"Restoration" means any act or activity whose propose is to restore
any part of Fairview Park to its natural non-developed state. Those
activities could include, the removal of non-native or invasive plants,
replanting of native habitat areas utilizing the on site collection of
seeds and native plant materials, and improvement of the watersheds
to enhance the proper [low of water in support of endangered species
of plants or animals and the habitat that supports their survival.
G. "Maintenance" incans any activity whose pin -pose is to keel) the park
amenities in a neat, clean, serviceable and safe condition for the
public's use. Those activities would include, but are not limited to:
mowing of turf areas, painting, replacement of broken lights and bulbs,
repair ofrestroorn facilities, rehabilitation and restriping of existing
Page 3 of
roads and parking lots, repair of any existing Structures, and
maintenance of existing paths or trails to allow safe access and use by
emergency response vehicles.
H. "Natural Lauds" means an area of relatively undeveloped land
which:
1. has substantially retained its characteristics as provided by nature
or has been substantially restored, or which can be restored, to a
near -natural condition, and which has valuable wildlife, scenic,
open -space, or park resources, or a combination thereof, or
2, meets the definition of open -space land in Section 65560 of the
California State Government Code.
.t. "Park" means a. tract: of land with outstanding scenic, natural, open -
space, or recreational aspects, set apart to conserve natural, scenic,
cultural, or ecological resources for present and future generations, and
to be used by the public as a. place for rest, recreation, education,
exercise; inspiration, or enjoyment.
J. "Structure" means something constructed for occupancy or use,
whether, installed on, above or below groundandanyconnected
fixtures. Examples of structures include, but are not limited to:
1. buildingsandany above ground or below ground electrical,
water, gas, or sewage facilities or delivery systems needed or
used by those buildings, or
2, roads. paved with concrete or asphalt, or
3. curbs constructed of concrete or asphalt, or
4, lamp stands or poles,or
s; pergolas, or gazebos, or
6. parking lots,
Z, retaining walls, or
8, microwave or communication towers.
Sec. -4. Effective Date, Applicability.
A. This ordinance shall be binding and effective as of the earliest date
allowed by law (the "Effective Date"). At its first public meeting
following completion of the canvass of votes; the Costa Mesa City
Council shall pass the resolution required by Elections Code Section
9266. The following day, the elections official of Costa Mesa shall
cause a copy ofthe complete text of the adopted measure to be filed
with the Sceretary of State pursuant to Government Code Sections
34459 and 34460.
B, Pursuant to Elections Code Section 9205, all alterations to Fairview
Park aftor notice of intention to circulate the initiative petition adding
this ordinance to the City Municipal Code shall be subjeot to the
Page 4 of 6
provisions of this ordinance.
Sec. -5. Vote of the Costa Mesa Electorate on any alteration to Fairview Park.
A. Any Significant Change, except those listed in See. 6 below, to
Fairview Park shall be put to a vote of the Costa Mesa Electorate,
provided, however, that no such Significant Change shall be submitted
to the Costa Mesa electorate unless it has first been approved by the
appropriate governing body. A Significant Change to Fairview Park
shall become effective only after approval by the appropriate
governing body and a majority of the Costa Mesa electorate who are
participating inanelection proposing such Significant Change, An
advisory election does not satisfy the voter approval requirement.
B. The sample ballot materials mailed to the registered voters of Costa
Mesa prior to an election shall describe any Significant Change to
Fairview Park in a manner that clearly discloses both the scope and
main features of the entire proposal (including any development or
construction phases) that the Significant Change to Fairview Park
includes, consists of or depends on, and the location and the acreage
that will be affected by the Significant Change, The description shall
clearly compare the proposal to the As -Built condition. Easily readable
maps shall be provided to assist the voters in understanding the
description of the proposed Significant Change. All of the information.
called for by this subdivision shall be posted on Costa Mesa's website
no later than thirty (30) days prior to an electorate election to approve
or deny said change.
C, The popular vote required by this ordinance shall be in addition to all other
applicable review and approval requirements for such Significant Change,
including environmental review in compliance with the California Environmental
Quality Act ("CEQA")
See.6. Exceptions.
A. This ordinance shall not apply to any Significant Changes to Fairview
Park that are made for:
1. restoration purposes, or;
2. preservation, purposes, or;
3. maintenance purposes, or;
4. public safety, or;
5, to expand the size of Fairview Park, such as by City acquisition
of lands currently contained in Talbert Park, or
6. Significant Changes as directed in the Fairview Park Master
Plan, that is in effect as of January 1„2015, as long as that
direction does not require the construction of any permanent
structure.
Page 5 of 6
B, This ordinance shall not apply to any Significant Change to:Vairview
Park that is legally approved and completed prior to the effective elate
of this ordinance,
Sec, -7. Relationship to Municipal Code. If any provision of this ordinance conflicts
with other provisions contained in the Costa Mesa Municipal Code, the
provisions: of this ordinance shall supersede any other conflicting provision.
Sec, -8, Amendments: No provision ofthis ordinance may be amended or repealed
except by avote of the People of Costa Mesa.
Sec. -9. Judicial Enforcement. Any aggrieved person shall have the right to bring
an action to enjoin any violation of this ordinance or to enforce the duties
imposed on Costa Mesa by this ordinance.
Sec. -10. Construction. This ordinance shall be liberally construed to accomplish its
purposes. Nothing herein shall be construed to make illegal any lawfW use
being made of any land in accordance with the Fairview Park Master Plan
and City laud use and zoning regulations in force before the effective date of
this ordinance, or to prohibit any activities required by State or Federal Law.
Sec.,_.il. Consistency with Other Ballot Measures. If another ballot measure is
placed on the same ballot as this measure and deals with the same subject
matter, and if both measures pass, the voters intend that both measures shall
be put into effect, except to the extent that specific provisions of the measures
are in direct conflict. In the event of a direct conflict, the measure which
obtained more votes will control as to the directly conflicting provisions only.
The voters expressly declare this to be their intent, regardless of any contrary
language in any other ballot measure,
Sec.—_12. Severability, If any section, subdivision, clause; sentence, phrase or portion
of this ordinance is declared invalid by a court of competent j urisdiction, the
remaining sections, subdivisions clauses; sentences, phrases and portions
shall remain valid and enforceable. The voters declare that they would have
passed all sections, subdivisions, clauses, sentences, phrases and portions of
this ordinance without the section, subdivision, clause, sentence, phrase or
portion declared invalid by a court of conipeteut jurisdiction.
Sec. 13. Acts Beyond Control. Nothing in this ordinance shall be construed to bring
action against the City for any injury to or change resulting from any natural
cause beyond the control of the City, including without limitation, fire, flood,
storm and earth movement.
Sec. -14. Prohibited Uses: Any activity or use of Fairview Park inconsistent with
the purpose of this ordinance is prohibited.
Page 6 of 6
ATTACHMENT 4
RESOLUTION NO. 16-42
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF COSTA MESA,
CALIFORNIA, REQUESTING THE ORANGE COUNTY BOARD OF SUPERVISORS TO
CONSOLIDATE A GENERAL MUNICIPAL ELECTION TO BE HELD NOVEMBER 8,
2016, WITH THE STATEWIDE GENERAL ELECTION TO BE HELD ON THE DATE
PURSUANT TO SECTION 10403 OF THE ELECTIONS CODE
WHEREAS, the City Council of the City of Costa Mesa called a General Municipal
Election to be held on November 8, 2016 for the purpose of submitting a proposed
ordinance to the voters of the City of Costa Mesa for their consideration; and
WHEREAS, the City Council of the City of Costa Mesa is submitting to the voters
of the City of Costa Mesa a question relating to the adoption of proposed ordinance; and
WHEREAS, it is desirable that the general municipal election be consolidated with
the Statewide General election to be held on the same date and that within the city, the
precincts, polling places, and election officers of the two elections be the same, and that
the Registrar of Voters of the County of Orange canvass the returns of the General
Municipal Election and that the election be held in all respects as if there were only one
election;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF COSTA MESA,
CALIFORNIA, DOES HEREBY RESOLVE, DETERMINE, AND ORDER AS FOLLOWS:
SECTION 1. That pursuant to the requirements of Section 10403 of the Elections
Code, the Board of Supervisors of the County of Orange is hereby requested to consent
and agree to the consolidation of a General Municipal Election with the Statewide
General Election on Tuesday, November 8, 2016, for the purpose of submitting to the
voters of the City of Costa Mesa a question relating to the adoption of a proposed
ordinance.
Resolution No. 16-42 Page 1
SECTION 2. That the following measure is to appear on the ballot as follows:
Measure _: An Initiative Requiring Changes in Use at
Fairview Park be Subject to Voter Approval
Response
Vote
Shall an ordinance requiring voter approval for
1) construction of playgrounds, athletic fields,
Yes
platforms/retaining walls for vista overlook, stairways to
provide access to bluffs, new restrooms, parking lots,
No
museum/multipurpose building, boardwalk and pedestrian
bridges; 2) extended park hours for community events; 3)
installation of parking lot lighting; or 4) other permanent
structures at Fairview Park be adopted?
SECTION 3. That the proposed complete text of the ordinance submitted to the
voters is attached as Exhibit A.
SECTION 4. That the vote requirement for the measure to pass is a majority (50%
+1) of the votes cast.
SECTION 5. That the County of Orange Registrar of Voters is authorized to
canvass the returns of the General Municipal Election. The election shall be held in all
respects as if there were only one election, and only one form of ballot shall be used.
The election will be held and conducted in accordance with the provisions of law
regulating the statewide or special election.
SECTION 6. That the Board of Supervisors is requested to issue instructions to
the county election department to take any and all steps necessary to hold the
consolidated election.
SECTION 7. That the City of Costa Mesa recognizes that additional costs will be
incurred by the County by reason of this consolidation and agrees to reimburse the
County for any costs.
SECTION 8. That the City Clerk is directed to file a certified copy of this
Resolution with the Board of Supervisors and the county election department of the
County of Orange.
SECTION 9.
resolution.
That the City Clerk shall certify to the passage and adoption of this
Resolution No. 16-42 Page 2
PASSED AND ADOPTED this 5th day of July, 2016.
Stephen M. Mensinger
ATTEST:
Brenda Green, City Clerk
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss
CITY OF COSTA MESA )
APPROVED AS TO FORM:
Thomas Duarte, City Attorney
I, BRENDA GREEN, City Clerk of the City of Costa Mesa, DO HEREBY
CERTIFY that foregoing Resolution No. 16-42 was duly passed and adopted by the City
Council of the City of Costa Mesa at a regular meeting held on the 5th day of July, 2016,
by the following roll call vote, to wit:
AYES:
COUNCIL MEMBERS:
NOES:
COUNCIL MEMBERS:
ABSENT:
COUNCIL MEMBERS:
IN WITNESS WHEREOF, I have hereby set my hand and affixed the seal of the
City of Costa Mesa this 6th day of July, 2016.
BRENDA GREEN, CITY CLERK
Attachments:
1. Exhibit A — Proposed Ordinance: An Initiative Requiring Changes In Use At Fairview
Park Be Subject To Voter Approval.
Resolution No. 16-42 Page 3
INITIATIVE MEASURE TO BE SUBMITTED DIRECTLY TO TLE VOTERS.
AN ORDINANCE; TO GIVE THE PEOPLE OF COSTA MESA A VOTI TO
DETERMINE WHAT SIGNIFICANT CHANGES TO FAIRVIEW PARKM,AY Bt;
MADE.
r_ -s c`S
The proposed ordinance reads as follows: + ,'
The people of Costa Mesa declare the following: { `.
1. Parks, wildlife habitat, and opon•space lands are vital to maintaining the quality &)
life in Costa Mesa. As the City's population increases, it is of growing importance
to provide parks and recreational opportunities to the residents of Costa Mesa,
2. Preservation of Costa Mesa's unique natural heritage is in the interest of all Costa
Mesa residents and visitors.
a. Fairview Park is a unique recreational resource and should be preserved and
restored as such, in perpetuity, For the public to enjoy.
4. 'f lie intent of the City of Costa Mesa in its purchase of Fairview Park as
documented in the 1986 purchase agreement and grant deed, and demonstrated by
the development and implementation of the Fairview Park Master Plan was to
preserve and protect the last of Costa Mesa's natural open space:
7. There is a need to protect Fairview Park from alterations that reduce the tangible
and intangible benefits to the public while visiting and exploring this natural,
open space.
6. Fairview Park is a passive use park, developed to promoteactivities such as
walking, Biking, jogging, running, bicycling, glider flying, kite flying, dog
walking, picnicking, small group physical activities and similar uses.
7. Fairview Park, historically, has not been a site for organized sports activities that
require amenities to be developed or built to meet the general need of those sports
activities.
8, Currently, Fairview Park provides essential habitat for species of special
significance, some of which are federally protected species which are in danger of
extinction. The Park contains plants and animals, archeologically sensitive sites,
and extremely mare veinal pools which need to be protected for future generations.
9. Once a change is instituted, Fuad the natural land is unnaturally altered, it will be
lost for future generations.
Page 1 of
10. The registered voters of Costa Mesa should have the right to decide whether a
change in Fairview Park as previously or currently proposed, but riot constricted,
should be allowed,
NOW, THE REF ORF, THE PEOPLE OF TI3E CITY OF COSTA MESA DO
OIWAIN AS FOLLOWS:
See.—I. Code,Amendment. This Ordinance is added to and amends the Costa Mesa
Municipal Code as follows and supersedes any provisions that are
inconsistent with this ordinance.
Sec. -2. Purpose. The purpose of this ordinance is to:
A, Keep Fairview Park as a natural and open space as documented in the
Fairview Park Master Plan as def Tied below.
D. Give the citizens of Costa Mesa ai voice in determining whether the
development of a project beyond the As Built condition of Fairview
Park shall he allowed or not.
c. Ensure that the Costa Mesa officials provide timely, accurate and
unbiased review of ally such proposed development or change to
Fairview Park.
D. Ensure that the Citizens of Costa Mesa receive al l necessary and.
accurate environmental and relevant information needed to cast an
informed vote on any such proposed development or change.
Sec. -3. Definitions. The definitions set forth in this section apply to the provisions
of this ordinance only and do not affect any other provisions of law.
A "Significant Change" means:
1, any of the following activities within Fairview Park:
i. expansion or intensification of uses, or
ii, expansion of current amenities, or
iii. addition of new amenities, or
iv. expansion of park hours, or
v, grading, or
vi. expansion of any parking lot's footprint, or
vii: laying of foundations, or
viii. building of permanent Structures; or,
ix. installation of water, electric, gas, or sewer lines or delivery
systems, or
X. installation of additional lighting, or,
xi. alterations that use geotechnical or structural analyses.
2. The following shall not be considered a "Significant Change"
tinder Us ordinance:
i, installation of trash cans, park benches, picnic tables, or,
ii. installation of a concrete pad applied to any such trash
cams, park benches, or picnic tables, used to provide
Page 2 of 6
stability arid/ or theft deterrence, so long as the upper
surface area of such pad does not substantially exceed the
outer footprint dimensions of said trash can, park bench or
picnic table, or
iii. installation of ADA compliant rest areas along existing
trails and any level concrete pads needed for those rest
area as long as the coverage area of those concrete pads
are not in excess of the minimum required dimensions for
ADA compliance and are spaced from other such pads a
minimum of one hundred (100) linear feet or per ADA
required spacing intervals.
B. "As -Built Condition" means the amenities and alterations that have
been built in Fairview Park as of the effective date of this ordinance.
C. "Fairview Park" means that area as defined by the City of Costa
Mesa in the November 2008 Fairview Park Master Plan; encompassing
all parts of the park area designated as "Fairview Parlc" and any lands
currently included in Talbert Park (also known as Talbert Regional
ParkandTalbert Nature Preserve) if ever acquired by the City of Costa
Mesa.
D. "Fairview Park Master Pla»:" means the document and its
atnendrnents approved by the City of Costa Mesa to guide the
continuing aid future alterations to Fairview Park that have been in
effect since November 2008.
E. "Preservation" or "Preservation efforts" means any activity whose
purpose is to protect the natural state of Fairview Park. Thoseactivities
could include, but are not limited to; improved signage of an
educational or warning nature, educational activities, and activities
intended to protect vernal pools; archaeological sites, habitat or
biological resources, including installation ofprotective fencing.
F. "Restoration" means any act or activity whose purpose is to restore
any part of Fairview Park to its natural non-developed state, Those
activities could include: the removal of non-native or invasive plants,
replanting of native habitat areas utilizing the on site collection of
seeds and native plant materials, and improvement of the watersheds
to enhance the proper flow of Water in support of endangered species
of plants or animals and the habitat that supports their survival
G. "Maintenance" means any activity whose purpose is to keep the park
amenities in a neat, clean, serviceable and safe condition for the
public's use. Those activities would include, but are not limited to:
mowing of turf areas, painting, replacement of broken lights and bulbs,
repair of restroom facilities, rehabilitation aril rastriping of existing
Page 3 of6
roads and parking lots, repair of any existing Structures, and
maintenance of existing paths or trails to allow safe access and use by
emergency response vehicles.
H. "Natural Lands" means an area of relatively undeveloped land
which;
1. has substantially retained its characteristics as provided by nature
or has been substantially restored, or which can be restored, to
,near natural condition, and which has valuable wildlife, scenic,
open -space, or park resources, ora combination thereof, or
2. meets the definition of open -space land in Section 65560 of the
California State Government Code,
.i, "Park" means a tract of land with outstanding scenics natural, open -
space, or recreational aspects, set apart to conserve natural, scenic,
cultural, or ecological resources for present and future generations, and
to be used by the public as a place for rest, recreation, education,
exercise, inspiration, or enjoyment.
J, "Structure" means something constructed for occupancy or rise,
whether installed on, above or below ground and any connected
fixtures. Examples of structures include, but are not limited to:
i, buildings and any above ground or below ground electrical,
water, gas, or sewage facilities or delivery systems needed or
used by those buildings, or
2. roads paved with concrete or asphalt, or
3. clubs constructed of concrete or asphalt, or
4, lamp.. stands orpoles, or
5. pergolas, or gazebos, or
B. parkinglots,
7. retaining walls, or
a. microwave or communication towers.
Sec. -4. Effective Date, Applicability,
A. This ordinance shall be binding and effective as of the earliest date
al towed by law (the "Effective Date"); At its first public meeting
following completion of the canvass of votes, the Costa Mesa City
Council shall pass the resolution required by Elections Code Section
9266. The following day, the elections official of Costa Mesa shall
cause a copy of the complete text of the adopted measure to be filed
with the Secretary of State pursuant to Government Code Sections
:34459 and :)4460.
B. Pursuant to Elections Code Section 9205, all alterations to Fairview
Park after -notice of intention to circulate the initiative petition adding
this ordinance to the City Municipal Code shall be subject to the
Page 4 of 6
provisions of this ordinance.
Sec. -5. Vote of the Costa Mesa Electorate on any alteration to Fairview Park,
A. Any Significant Change, except those listed in See. 6 below, to
Fairview Paris shall be put to a vote of the Costa Mesa Electorate,
provided, however, that no such Signific€utt Change shall be submitted
to the Costa Mesa electorate unless it has first been approved by the
appropriate governing body. A Significant Change to Fairview Park
shall become effective only after approval by the appropriate
governing body and a majority of the Costa Mesa electorate who are
participating in an election proposing such Significant Change, An
advisory election does not satisfy the voter approval requirement.
D. The sample ballot materials mailed to the registered voters of Costa
Mesa prior to an election shall describe any Significant Change to
Fairview Park in a mariner that clearly discloses both the scope and
main,features of the entire proposal (including any development or
construction phases) that the Significant Change to Fairview Park
includes, consists of or depends on, and the location and the acreage
that will be affected by the Significant Change. The description shall
clearly compare the proposal to the As -Built condition. Easily readable
maps shall be provided to assist the voters in understanding the
description of the proposed Significant Change.. All of the information
called for by this subdivision shall be posted on Costa Mesa's website
no later than thirty (3 0) days prior to an electorate election to approve
or deny said change.
c The popular vote required by this ordinance shall be in addition to all other
applicable review and approval requirements for such Significant Change,
including environmental review in compliance with the California Enviromxrental
Quality Act ("CEQA").
Sec. -6. Exceptions.
A. This ordinance shall not apply to any Significant Changes to Fairview
Pails thataremade for:
1. restoration purposes, or;
2. preservation purposes, or;
3 maintenance purposes; or;
4, public safety, or;
5. to expand the size of Fairview Park, such as by City acquisition
of lands currently contained in Talbert Paris; or
6. Significant Changes as directed in the Fairview Park 114aster
Plan, that is in effect as of January 1, 2015, as long as that
direction does not require the construction of any permanent
structure.
Page 5 of 6
13. This ordinance shall riot apply to any Significant Change to Fair" ew
Park that is legally approved and completed prior to the effective date
of this ordinance.
Sec. -7. Relationship to Municipal Code. If any provision of this ordinance conflicts
with other provisions contained in the Costa Mesa Municipal Code, the
provisions o this ordinance shall supersede any other conflicting provision,
Sea_ll. Amendments. No provision of this ordinance may amended or repealed
except by a vote of the People of Costa Mesa.
Sec. -9. Judicial Enforcement. Any aggrieved person shall have the right to bring
an action to enjoin any violation of this ordinance or to enforce the duties
imposed on Costa Mesa by this ordinance.
Sec. -10. Construction. This ordinance shall be liberally construed to accomplish its
pin -poses. Nothing herein shad be construed to make illegal any lawflil use
being made of any land in accordance with the Fairview Park Master Plan
and City land use and zoning regulations in force before the effective date of
this ordinance, or to prohibit any activities required by State or Federal Law.
Sec.—II. Consistency with Other Ballot Measures. If another ballot measure is
placed on the same ballot as this measure and deals with the same subject
matter, and if both measures pass, the voters intend that both measures shall
be put into effect, except to the extent that specific provisions of the measures
are in direct eonfliot. In the event of a direct conflict, the measure which
obtained more votes will control as to the directly conflicting provisions only,
The voters expressly declare this to be their intent, regardless of any contrary
language in any other ballot measure:.
Sec.—,12. Severability: If any section, subdivision, clause, sentence, phrase or portion
of this ordinance is declared invalid by a court of competent jurisdiction;, the
remaining sections, subdivisions clauses; sentences; phrases and portions
shall remain valid and enforceable. The voters declare that they would have
passed all sections, subdivisions; clauses; sentences, phrases and portions of
this ordinance without the section, subdivision, clause, sentence, phase or
portion declared invalid by a court of competent jurisdiction.
See. -13. Acts BeyondControl. Nothing in this ordinance shall be construed to bring
action against the City for any injury to or change resulting from any natural
cause beyond the control of the City; including without limitation, fire, flood;
storm and earth movement.
See, -14, Prohibited Uses: Any activity or use of Fairview Parlc inconsistent with
the purpose of this ordinance is prohibited.
Page 6 of 6
RESOLUTION NO. 16-43 ATTACHMENT 5
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF COSTA MESA,
CALIFORNIA AUTHORIZING WRITTEN ARGUMENTS FOR OR AGAINST THE
PROPOSED MEASURE REQUIRING CHANGES IN USE AT FAIRVIEW PARK BE
SUBJECT TO VOTER APPROVAL
WHEREAS, a General Municipal Election is to be held in the City of Costa Mesa,
California, on Tuesday, November 8, 2016, at which there will be submitted to the voters
the following measure:
Measure _: An Initiative Requiring Changes in Use at
Fairview Park be Subject to Voter Approval
Response
Vote
Shall an ordinance requiring voter approval for
1) construction of playgrounds, athletic fields,
Yes
platforms/retaining walls for vista overlook, stairways to
provide access to bluffs, new restrooms, parking lots,
No
museum/multipurpose building, boardwalk and pedestrian
bridges; 2) extended park hours for community events; 3)
installation of parking lot lighting; or 4) other permanent
structures at Fairview Park be adopted?
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF COSTA MESA,
CALIFORNIA DOES RESOLVE, DECLARE, DETERMINE AND ORDER AS FOLLOWS:
SECTION 1. That the City Council affirms for measures placed on the ballot by
petition, the persons filing an initiative petition, pursuant to Elections Code Section
9282(a) may file a written argument in favor of the ordinance, not exceeding 300 words,
and the legislative body may submit an argument against the ordinance.
SECTION 2. That the City Council authorizes the following member(s) of it's body
ayor Against)
ayor Pro Tem Member Against)
cuncil Member Against)
Duncil Member Against)
Duncil Member Against)
to file a written argument Against Measure as specified above not exceeding 300
words, accompanied by the printed names(s) and signature(s) of the author(s) submitting
it, in accordance with Article 4, Chapter 3, Division 9 of the Elections Code of the State of
California. The arguments may be changed or withdrawn until and including the date
fixed by the City Clerk after which no arguments for or against the City measure may be
submitted to the City Clerk.
Resolution No. 16-43 Page 1 of 3
The arguments shall be filed with the City Clerk, signed, with the printed name(s)
and signature(s) of the author(s) submitting it, or if submitted on behalf of an organization,
the name of the organization, and the printed name and signature of at least one of its
principal officers who is the author of the argument. The arguments shall be accompanied
by the Form of Statement To Be Filed By Author(s) of Argument.
SECTION 3. That the City Council directs the City Clerk to transmit a copy of the
measure to the City Attorney, unless the organization or salaries of the office of the City
Attorney is affected.
a. The City Attorney shall prepare an impartial analysis of the measure not
exceeding 500 words showing the effect of the measure on existing law and
the operation of the measure. If a measure affects the organization or salaries
of the office of the City Attorney, the City Clerk shall prepare the impartial
analysis.
b. The analysis shall include a statement indicating whether the measure was
placed on the ballot by a petition signed by the requisite number of voters or by
the governing body of the city.
c. In the event the entire text of the measure is not printed on the ballot, nor in the
voter information portion of the sample ballot, there shall be printed immediately
below the impartial analysis, in no less than 10 -point type, the following: "The
above statement is an impartial analysis of Ordinance or Measure _. If you
desire a copy of the ordinance or measure, please call the election official's
office at 714-754-5225 and a copy will be mailed at no cost to you.
d. The impartial analysis shall be filed by the date set by the City Clerk for the
filing of primary arguments.
SECTION 4. That the City Clerk shall certify to the passage and adoption of this
resolution and enter it into the book of original resolutions.
PASSED, APPROVED AND ADOPTED ON JULY 5, 2016.
Stephen M. Mensinger, Mayor
ATTEST:
Brenda Green, City Clerk
APPROVED AS TO FORM:
Thomas Duarte, City Attorney
Resolution No. 16-43 Page 2 of 3
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss
CITY OF COSTA MESA )
I, BRENDA GREEN, City Clerk of the City of Costa Mesa, DO HEREBY CERTIFY that
foregoing Resolution No. 16-43 was duly passed and adopted by the City Council of
the City of Costa Mesa at a regular meeting held on the 5th day of July, 2016, by the
following roll call vote, to wit:
AYES: COUNCIL MEMBERS:
NOES: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
IN WITNESS WHEREOF, I have hereby set my hand and affixed the seal of the City
of Costa Mesa this 6th day of July, 2016.
BRENDA GREEN, CITY CLERK
Resolution No. 16-43 Page 3 of 3