The Gili for nhi Surveyor - CLSA

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Coming of Age .... CONTINUED FROM PAGE 35 are not in compliance with the law: It is essential that a developer's attorney become involved in the process and that, in the first instance, they do their own evaluation of whether the general plan is in compliance. When it comes to avoiding or defending a legal challenge, the developer's interest and that of the city will probably be the same. The best course of action is to be conservative and resist the normal inclination to gloss over procedural niceties and hurry the process along. The biggest single reason for litigation in this area is a misguided attempt to cut corners procedurally in an effort to meet a too-tight deadline. Developer's counsel should work extensively with city staff and other officials. This would include a willingness to provide needed legal analysis (avoiding, of course, stepping on the toes of the agency legal counsel) and a willingness to fund needed planning and other consulting services. In order to avoid either the appearance of bias or adverse public reaction, the inclination to preordain a particular result must be avoided. Contact with elected officials and members of appointed boards can be very useful. These contacts, however, must avoid any violations of the Brown Act (the California Open Meetings Act (Govt C §§54950-54961)). Additionally, although an attorney is generally prohibited from having contact with a party which he or she knows is represented by another attorney (without consent), this rule does not apply to communications with a public officer, board, committee, or body. Cal Rules of Prof Cond 2-100. Citizen Involvement and the Use Of Initiatives and Referendums Citizen involvement in land use planning has significantly increased in recent years. In addition to city staff, planning commissioners, and city council members, a developer must also deal with neighbors, special interest groups, and other concerned citizens. Developers should be aware that most "ultimate" decision makers are elected officials and that elected officials ignore at their own peril the wishes of their constituents. One of the results of increased citizen involvement in land use decisions has been a concomitant increase in the use of initiatives and referendums. An extensive discussion of those devices is beyond the scope of this article, but some background is essential in order to understand their relationship to general plans. Initiative and referendum are the proceedings which permit a direct popular vote on proposed legislation or recently enacted legislation. The powers of initiative and referendum were adopted in California in 1911 as a state constitutional enactment (Cal Const art II, §§8-11). The constitutional provision which deals most specifically with the application of initiative and referendums are used to repeal ordinances and resolutions. The procedures for initiatives and referendums are found in the Elections Code (e.g. municipal initiative at Elec C §§4000-4021; municipal referendum at Elec C §§4050-4095). They cover such topics as circulation of the petitions, duty of the council to submit, number of signatures required, date of elections, etc. Although the California Constitution places some limitations on the use of initiative and referendum, most limitations are the result of court decisions. They are based on the general principle that the power of the voters to adopt or repeal is governed by the same substantive limitations that restrict the city council's power. These limitations include restrictions against violations of constitutional law, conflict with state general law, impairment of an essential government function, and invasion of a duty imposed solely on the council as an agent of the state or involving an administrative (quasi-judicial) function as opposed to a legislative function. The initiative and referendum powers apply only to legislative acts. Courts have designated certain land use decisions as being administrative (variances, use permits, subdivisions, etc.) and others as being legislative (zoning, etc.). Under California law, the adoption or amendment of a general plan or a specific plan is a legislative act subject to enactment by initiative or repeal by referendum. Midway Orchards v. County of Butte (1990) 220 CA3d 765, 269, CR 796, reported at 13 CEB RPLR 173 (Aug. 1990); Yost v. Thomas (1984) 36 C3d 561, 205 CR 801, reported at 7 CEB RPLR 175 (Nov. 1984). Although it is undoubtedly true that initiatives and referendums must comply with general substantive law, an exception is made in connection with certain procedural requirements such as notice, hearing, and findings. Associated Home Builders, Inc. v. City of Livermore (1976) 18 C3d 582, 596, 135 CR 41,48. Another procedural requirement that does not apply to initiatives and referendums is CEQA. Northwood Homes, Inc. v. Town ofMoraga (1989) 216 CA3d 1197, 1206, 265 CR 363, 369, reported at 13 CEB RPLR 79 (Apr. 1990); Stein v. City of Santa Monica (1980) 110 CA3d 458,168 CR 39, reported at 4 CEB RPLR 13 (Jan. 1981). The case of Building Indus. Ass'n v. City ofCamarillo (1986) 41 C3d 810,226 CR 81, reported at 9 CEB RPLR 125 (Aug. 1986), is perhaps the best illustration of the reasons why certain procedural requirements are inapplicable to the initiative and referendum process. Camarillo involved a growth control ordinance adopted by initiative. At issue was the applicability of Govt C §65863.6 (which requires the city to balance, with appropriate findings, housing needs against public service needs before adopting a growth control ordinance) and Evid C §669.5 (which shifts the burden of proof that a growth control ordinance is necessary to promote public health, safety, and welfare to the city). The court concluded that Evid C §669.5 applies to initiative measures while Govt C §65863.6 does not. According to the court, procedural requirements governing city council action do not apply to initiatives any more than the procedural aspects of initiative law apply to city council enactments of ordinances. The court held that Evid C §669.5 applied, however, because it places no procedural barriers on the ability of the electorate to legislate through the power of initiative. As stated above, the general rule is that the voters have no greater power than does the legislative body to enact legislation. Under this general rule, initiative and referendum legislation may be attacked on the ground that it was an improper exercise of the police power. Arnel Dev. Co. v. City of Costa Mesa (1981) 126 CA3d 330, 337, 178 CR 723, 727, reported at 5 CEB RPLR 35 (Mar. 1982). Perhaps the most interesting substantive requirement applicable to land use initiatives and referendums is that the measure must be consistent with general plan laws. This requirement, as discussed above, involves (1) consistency with state general plan law, (2) internal consistency, and (3) consistency of subordinate land use decisions with the general plan. These issues 36 The California Surveyor Winter/Spring 1992
have been discussed in several court decision. The issue of inconsistency between the general plan and a subordinate land use regulation was before the court of appeal in deBottari v. City Council (1985) 171 CA3d 1204, 217 CR 790, reported at 9 CEB RPLR 14 (Jan. 1986). In that case, the court held that a proposed referendum which would have rejected a zoning ordinance was invalid because, if passed, it would result in zoning scheme that was inconsistent with the city's general plan. One of the most recent cases in this area may become a seminal case in land use planning. In Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 C3d 531, 277 CR 1, the California Supreme Court invalidated a voter-initiated growth control measure that conflicted with the city of Walnut Creek's general plan. The court first determined that the initiative most closely resembled a zoning ordinance and as such was subordinate to the city's general plan. The court went on hold that state planning and zoning law dictated that a zoning ordinance that conflicts with a general plan is invalid when passed (void ab initio), and that a court could not overcome that flaw with a compliance decree. The court expressly disapproved any statement to the contrary in Building Indus. Ass'n v. Superior Court (1989) 211 CA3d 277,297,259 CR 325,338, reported at 12 CEB RPLR 181 (Aug. 1989). Lesher may be as important for what it left unsaid as for what it said. The questions, hinted at by the court but left unresolved, is whether the statutory scheme of general plan preparation can co-exist with the statutory scheme for initiatives and referendums. For example, an initiative can only be amended by a subsequent initiative; therefore, general plan amendments by initiative may interfere with the city council's power to amend all or part of the general plan. 52 C3d at 539,277 CR at 4. Within two weeks of the decision in Lesher, the court of appeal decided Marblehead v. City of San Clemente (1991) 226 CA3d 1504, 277 CR 550, reported at 14 CEB RPLR 127 (Apr. 1991). In this case, the initiative tied future growth to the ability to meet specific service levels for transportation and other public services. Unlike the initiative in Lesher, the San Clemente initiative explicitly called itself a general plan amendment. The initiative contained a provision that "the general plan of the city shall be deemed to be amended to contain these concepts" and directed the city to revise the general plan and zoning ordinance within six months to achieve consistency. The court of appeal held the San Clemente initiative unconstitutional because, instead of actually amending the specific general plan provisions, it merely directed the city council to amend the general plan. In reaching this result the court relied on American Fed'n of Labor v. Eu (1984) 36 C3d 687,714,206 CR 89,107, which held that an initiative which seeks to do something other than enact a statute is not within the initiative power reserved by the people. Due Diligence for Developers' Attorneys At this point, readers should have reached one firm conclusion: Due diligence for a client seeking to purchase and develop property does not end, but only begins, with a legal audit of the jurisdiction's general plan. The general plan audit should be conducted by an experienced land use CONTINUED ON PACE 38 J^WE'RE ON THE MOVE Brunson Instrument Co. Torrance, California 3740 Skypark, 90505 phone: 213-378-2232 fax: 213-378-8175 San Diego, California 8898 Clairemont Mesa Blvd., 92123 phone: 619-278-7762 fax: 619-278-2951 Orange, California 777 S. Main, #61,92668 phone: 714-569-1031 fax: 714-569-0763 San Marcos, California 1045 Linda Vista Dr., #106,92069 phone: 619-727-0153 fax: 619-471-6852 . . . EXPERIENCE OUR NEW STORES Winter/Spring 1992 The California Surveyor 37
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