Ballot measure rejection results in lawsuit against San Bruno over hotel

Opponents of a planned hotel in San Bruno are suing the city after a ballot measure seeking to block the hotel was rejected from the November ballot.

Late last month, city officials told the hotel’s opponents that approval by the City Council to sell the 1.5-acre parcel to the hotel developer was not a legislative action, and therefore not subject to the referendum process.

But backers of the referendum, which would reverse the City Council’s decision to sell a parcel of city-owned land to hotel builder OTO Development, believe San Bruno doesn’t have the authority to decide whether a referendum is valid and have filed a lawsuit against the city in San Mateo County Superior Court.

The hotel is opposed in part because the developer reportedly refuses to offer any guarantee the future hotel workers would be allowed to unionize. Opponents also claim city officials aren’t getting a good deal for San Bruno residents, because the 1.5-acre parcel’s $3.97 million selling price is too low.

The City Council voted March 29 to approve the land sale. That prompted the hotel project’s opponents to launch a petition drive to gather signatures in support of their referendum to reverse the council’s decision.

On April 27, opponents submitted about 3,200 signatures at San Bruno City Hall, well in excess of the roughly 2,000 signatures needed to place their measure on the ballot.

The referendum is backed by Unite Here Local 2, a union representing hotel and restaurant workers, and by the San Bruno Committee for Economic Justice, a recently formed coalition of residents.

If the city had then certified the referendum, the land sale and hotel construction would have been halted until voters cast their ballots in November.

But May 17, San Bruno City Clerk Carol Bonner emailed the referendum’s backers that based on advice from City Attorney Marc Zafferano, she would not process the referendum.

Zafferano claimed the City Council’s resolution to sell the land to the hotel developer was not a legislative action, and therefore not subject to the referendum process.

Zafferano also claimed the petition supporting the referendum was “defective” because potential signers were shown a tentative copy of the Purchase and Sale Agreement (PSA) between the city and OTO Development, as opposed to the final version of the document.

The referendum’s backers responded by filing a lawsuit asking the court to direct San Bruno officials to process the petition and place it on the November ballot.

The lawsuit alleges Bonner, as city clerk, did not have legal authority to rule on whether the referendum might be valid, but did have a ministerial duty to process it.

San Bruno resident Mary Dowden, a plaintiff in the case, claimed it was disingenuous to fault signature gatherers for showing voters the version of the PSA that was included with the petition, because the city had failed to make the final version of that document available.

“We contacted the city attorney and said, ‘Where is it?’” Dowden said. “We still haven’t received a copy.”

Dowden said she is also skeptical that a resolution by the City Council does not constitute a legislative action, and believes San Bruno’s voters are being “silenced.”

“This project is going to affect families, workers and businesses in the community, and we should have a say, especially because it’s on public property,” Dowden said.

Zafferano explained not all actions taken by city councils are legislative, and only legislative actions can be overturned by voter referendums.

Examples of legislative actions include adopting a general plan or a zoning ordinance, the city attorney noted.

Conversely, approving a use permit for an individual business or entering into a contract with a consultant would be examples of non-legislative actions, Zafferano said.

Zafferano noted there were several legislative acts by the City Council in previous years that set the stage for the current agreement with OTO Development, but no referendums were filed in opposition to those acts.

The most recent such legislative act occurred last year, Zafferano said, when the City Council conducted an environmental impact report and approved a Specific Plan authorizing the project.

“If somebody wanted to challenge the use of the property for a hotel site, that was the time to do it,” Zafferano said.

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