SAN DIEGO—While there is no single magic bullet developers can use to shield a project from referendum, there are a number of things they can do to mitigate the risk or fight a referendum that is already underway against development, attorney Neil Hyytinen tells GlobeSt.com. Hyytinen, a partner at Hecht Solberg Robinson Goldberg & Bagley LLP, specializes in land use, planning and entitlements, including environmental and municipal law. In the wake of projects like Caruso Affiliated's 85/15 plan and Kilroy Realty's One Paseo being delayed or derailed by voters, we spoke exclusively with him about how much power voters have against development and what developers can do to mitigate this effect on their projects.

GlobeSt.com: How much power do voters have to stop a development that has been approved by the city and is on private land?

Hyytinen: The power to reject or overturn certain actions taken by the local jurisdiction via referendum is codified in the State Constitution. Sometimes referred to as a "citizens' veto," the power of referendum has been around for more than 100 years, but its use as a weapon to kill or control development has gained in popularity since the early 1990s.

The referendum power extends to "legislative acts" taken by the local jurisdiction, which in the development context, are limited to adopting or amending a general plan or specific plan, rezoning actions or the adoption of a development agreement. As such, if the project approvals include one of these legislative acts, the project (at least as it relates to the plan amendment or rezone) is subject to possible referendum.

The good news is that it is difficult and very costly to pursue a successful referendum. Proponents of a referendum must obtain valid signatures from a minimum of 10% of the vote cast in the last jurisdiction-wide election within 30 days from the date the project is approved to qualify a referendum. The short timeframe for gathering signatures and qualifying a referendum and significant costs associated with the referendum process are substantial barriers to all but the most well-heeled and organized project opponents.

GlobeSt.com: How far does voter power extend on this issue (e.g., could a homeowner be prevented from remodeling their kitchen or adding on a deck?)?

Hyytinen:Fortunately, as discussed above, the referendum power only extends to "legislative acts." "Quasi-adjudicative" actions such as the approval of a development permit or subdivision or "ministerial" actions such building permits for a deck or kitchen remodel are not subject to referendum. So homeowners need not fear any NIMBYs coming out of the woodwork to oppose their new kitchen.

GlobeSt.com: What can and should developers do to prevent these problems?

Hyytinen: While there is no single, magic bullet that developers can use to shield a project from referendum, there are a number of things a developer can do to mitigate the risk of referendum or fight a referendum that is already underway. It is critical that a developer undertake due diligence and community outreach early in the process to identify and gauge the strength and resources of potential opposition. Referendums are costly and require substantial organization and financial resources to be successful. If a developer encounters such opposition, it is generally better to negotiate a mutually agreeable solution to address the opposition's concerns prior to going to hearing for project approval if at all feasible.

Of course, some opponents are not reasonable and there may not be a middle ground, in which case a developer will have no choice but to fight the referendum. Anti-referendum tactics may include initiating a public-relations campaign to educate voters on the merits of the project or the "bad motives" of the opposition; pursuing a counter initiative as a platform to educate voters and, perhaps more importantly, to tie-up the available pool of paid signature gatherers so the referendum proponent can't use them; and, if all else fails, challenging the validity of the referendum on substantive or procedural grounds if viable.

GlobeSt.com: What else should our readers know about voters' power against development?

Hyytinen: It goes both ways. The power of referendum and the initiative process can also be used proactively by a developer. For very large and potentially controversial projects, some developers are pursuing ballot initiatives for project approval. Although costly and time consuming, the initiative approach has the ancillary benefit of not being subject to the environmental review under the California Environmental Quality Act.