Will the pro-parking Prop. H remain on the ballot?

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Livable City executive director Tom Radulovich has asked the city Elections Department to remove the controversial pro-car measure Prop. H from the fall ballot after discovering a fairly significant misstatement of city law in the ballot summary that its downtown advocates circulated to get on the ballot. The measure, funded by Republican Don Fisher and condo developer WebCor, invalidates most city parking policies and drastically expands people's rights to build parking spots.
The summary, prepared by the City Attorney's Office, said current law allows at least one parking spot for every four housing units in the downtown districts and up to one spot for every three units. But as Radulovich's letter (which follows) indicates, city law actually allows up to one parking spot per unit in downtown residential zones and two spots for every three units in the commercial C-3 zone downtown.
Guardian phone calls to the City Attorney Office, Elections Department, and Prop. H advocate Jim Maxwell have not yet been returned.
Political consultant Jim Stearns, who is running the campaign against Prop. H, told us state law requires the city to remove the measure. He cited the precedent of City Attorney Dennis Herrera last year invalidating a successful referendum drive challenging the creation of the Bayview Hunters Point Redevelopment area because those circulating petition didn't carry with them the complete plan, only the ordinance that approved it. If the city doesn't remove the measure, Stearns said opponents will seek a court injunction doing so.

August 23, 2007

Director John Arntz
Department of Elections
1 Dr. Carlton B. Goodlett Place, Room 48
San Francisco, CA 94102
Fax: (415) 554-7344

via facsimile; original to follow via hand delivery

Re: Measure H
Ballot and Title Summary

Dear Mr. Arntz,

I am writing to you in your capacity as the Director of Elections to request that you remove
Measure H from the November 6, 2007 ballot.
It is my belief that printing a voter pamphlet with Measure H included would violate the law,
because the title and summary prepared by the City Attorney and circulated by proponents
contained false and misleading information.
As you are well aware, a ballot title and summary cannot be false or misleading. Voters who sign
a petition must be able to rely on the ballot title and summary to be accurate. Yet even a cursory
examination of the title and summary prepared for Measure H shows clearly that it contained
false information.
There were a number of false and misleading statements in the materials circulated, the clearest
example is a complete misrepresentation of current law regarding the maximum allowable
parking spaces in downtown districts.
The ballot title and summary prepared by the City Attorney, and circulated by proponents of the
measure, states the following:
“in certain downtown zoning districts, current law provides that the City must allow one parking
space for every four dwelling units and that the City may allow up to one space for every three
units.” (Emphasis added.)
This is a crucially important and blatantly false representation. In fact, Planning Code Section
151.1 clearly permits "up to one car for each dwelling unit" in Downtown Residential (DTR)
Districts, and “up to 0.75 cars for each dwelling unit" in Downtown Commercial (C-3)
districts. Voters who signed the petition for Measure H would have relied on the City Attorney's
information and were therefore led to believe that current city law is far different from what it
actually is; because the stated intent of the measure is to increase allowable parking, this
misrepresentation goes to the heart of the issue.
Voters who signed petitions in reliance on the ballot title and summary clearly have been misled.
Since voters cannot be asked to vote on a matter improperly qualified for the ballot, the only
available remedy at this point in time is to remove Measure H from the current ballot, and then
direct the City Attorney to redraft the title and summary to be entirely accurate.
Proponents could then take the amended title and summary, if they desire, and proceed to gather
the requisite signatures to place the measure legally on a future ballot.
As you are well aware, Election Code section 13314 states that “any elector may seek a writ of
mandate alleging that an error or omission has occurred, or is about to occur, in the placing of
any name on, or in the printing of, a ballot, sample ballot, voter pamphlet, or other official
matter, or that any neglect of duty has occurred, or is about to occur.”
And, section 9106 states that “any elector of the county may seek a writ of mandate requiring the
ballot title or summary prepared by the county counsel to be amended. The court shall expedite
hearing on the writ. A peremptory writ of mandate shall be issued only upon clear and
convincing proof that the ballot title or summary is false, misleading, or inconsistent with the
requirements of Section 9105.”
Furthermore, because of the blatant falsity introduced by the erroneous title and summary, it
appears that the petitions for Measure H were circulated in violation of Elections Code section
18600 which provides that it is a misdemeanor to circulate a petition containing false statements
concerning the effect of the measure.
I believe that it is your ministerial duty under the law to remove this improperly "qualified"
measure from the November 6, 2007 Municipal Election ballot. If you are unwilling to remove
this measure, which was placed on the ballot through severely false and misleading information,
I will have no choice but to file a petition for a Writ of Mandate, seeking seek a court order
compelling you to remove Measure H.
Please advise me by the close of business on August 23 how you intend to address this matter.
Thank you.
Sincerely,
Tom Radulovich
415 344-0489
tom@livablecity.org