News
Zoning, Planning and Use
Feb. 15, 2002
Air Strike
Land Use Practitioner Column - By Daniel J. Curtin Jr. - Even though the California courts have carefully guarded the right of the people to initiate laws - a power reserved to the people through the California Constitution - there are times that a court will strike down an initiative if it goes too far and interferes with essential governmental functions. This recently occurred in Orange County in a case involving the conversion of a military air base to civilian use. Citizens for Jobs and the Economy v. County of Orange, 2002 DJDAR 137 (Cal. App. Jan. 4, 2002).
Land Use Practitioner Column
By Daniel J. Curtin Jr.
Even though the California courts have carefully guarded the right of the people to initiate laws - a power reserved to the people through the California Constitution - there are times that a court will strike down an initiative if it goes too far and interferes with essential governmental functions. This recently occurred in Orange County in a case involving the conversion of a military air base to civilian use. Citizens for Jobs and the Economy v. County of Orange, 2002 DJDAR 137 (Cal. App. Jan. 4, 2002).
In 1994, voters in Orange County approved Measure A, which authorized the county to proceed with planning a conversion process to establish civilian airport use at the El Toro Marine Corps Air Station. The same appellate court upheld Measure A as valid in City of Lake Forest v. County of Orange, D025946 (Cal. App. June 30, 1997) (unpublished).
In 2000, the voters then approved Measure F, "The Safe and Healthy Communities Initiative," which significantly restricted the ability of the county's Board of Supervisors to plan the conversion. It stated that because certain land-use projects affect the health and safety of neighborhoods and communities, the voters should make the decision about whether they should be approved by a two-thirds vote at a county general election. The specified projects included in the initiative were new or expanded jail facilities, hazardous-waste landfills and airport projects. Measure F also required that the board undergo certain procedural hurdles before spending money on the project.
Ample evidence in the record showed that the main objective of Measure F was to prevent construction of the proposed commercial airport and that the other land-use facilities covered by the measure were selected for their appeal to voters in different geographical areas of the county.
Various parties who opposed Measure F sought to have it declared invalid. A trial court found that it was unconstitutional and not the proper subject of an initiative.
The appellate court also held that the initiative was invalid. First, the court stated that it was mindful that courts should not strike down initiative measures lightly. DeVita v. County of Napa, 9 Cal.4th 763 (1995).
Article II, Section 11 of the California Constitution, which confers the right of initiative and referendum, states that all power of government ultimately resides in the people. The California Constitution speaks of initiative and referendum, not as a right granted the people, but as a power reserved by them. The DeVita and other courts have held that it is the duty of the courts to jealously guard this right of the people.
The court noted that it had long been its judicial policy to apply a liberal construction to this right wherever it is challenged, so that the court not improperly annul the right to local initiative or referendum.
Nevertheless, in reviewing the record and briefing in this case, the court found Measure F to be clearly beyond the power of the electorate. It was defective in three major respects: It interfered with the essential government functions of fiscal and land-use planning; it impermissibly interfered with administrative or executive acts; and it was unconstitutionally vague in its powers, such that the county and its board could reasonably complain that they would not be able to comply with it because of its alleged vagueness.
The court noted that the California Supreme Court in DeVita and other cases has held that general plans and zoning ordinances are subject to amendment by initiative. However, there are limitations, one of which is that an initiative cannot interfere with essential governmental functions. See Rossi v. Brown, 9 Cal.4th 688 (1995); Geiger v. Board of Supervisors, 48 Cal.2d 832(1957).
The court noted that Measure F stated: "No act by the County of Orange to approve any new or expanded jail, hazardous waste landfill, or civilian airport project shall be valid and effective unless also subsequently ratified by a two-thirds vote of the voters voting at a County General Election."
Measure F defined the term "[a]ct by the County of Orange to approve" in exhaustive detail as including, but not limited to, "any legislative action by the Board of Supervisors, in whatever capacity," with respect to enacting any general plan, airport master or master development plan, airport system master plan, acquisition or conveyance of land, formation of any other governmental or quasi-governmental entity "and any other legislative action to permit or facilitate" development of one of the specified three types of projects.
Measure F implicates and affects two essential government functions that were to take place pursuant to the approval of Measure A, land-use planning and fiscal management. Pursuant to its mandate under the 1994 Measure A, the county, through its board, adopted a community reuse plan for the El Toro property that included the proposed new commercial airport and other commercial, office and related uses.
Further planning activities included the development of an airport system master plan, the base transition plan, an airport layout plan for the Federal Aviation Administration and numerous environmental studies and document preparation, including further environmental impact reports and federal environmental impact statement preparation.
The court stated that the type of restrictions imposed by Measure F were significant constraints upon the ability of the board to plan land-use issues throughout the county. Further, Measure F placed unrealistic impediments upon the planning process by overbroadly defining the term "any act to approve." By doing so, it prevented the board, on its own behalf or as a local redevelopment authority designated by the Department of Defense, from pursuing a policy that was already in place.
Turning to the effect of Measure F upon the county's fiscal-management powers, the court then stated that Measure F impermissibly intruded into board prerogatives, particularly with respect to the functions of the board in managing its financial affairs and carrying out the public policy declared by Measure A.
The terms of Measure F sought to broadly limit through procedural restrictions the power of future legislative bodies to carry out their duties, as prescribed to them by their own inherent policy power. As such, the measure could not be considered to have a proper legislative subject matter.
Moreover, this measure failed the test for an initiative that may properly circumscribe the power of future governing bodies, by requiring voter approval for certain future proposals, if such an initiative simply amounts to a legislative measure that the government body could itself have enacted as set forth in DeVita.
Instead, Measure F is mainly administrative in nature, by dictating how and what spending may take place on a matter in which a controlling, although flexible and open-ended, legislative policy already has been established. It does not make any difference that Measure A contemplated that the planning process had not yet been completed and had to remain responsive to local and regional developments.
The voter approval and spending restrictions contained in Measure F did not set new substantive land-use policies, but instead made it difficult or impossible for the board to carry out already-established policy that the airport project should be fully investigated at least for planning purposes.
Also, the court said that Measure F was unconstitutionally vague because it failed to provide the board with clear instructions regarding certain procedural requirements. The court said that the uncertainty of the type of instructions imposed on the board, in the context of the planning process authorized by Measure A, interacted in this case with the other defects already identified in the measure to demonstrate its invalidity.
In the context of the factual record of this case, the court said that it was clear that the provisions of Measure F would serve to paralyze the functions of planning with respect to an unpopular project and create roadblocks in the form of administrative interference with the legislative policy imposed by a previous initiative measure.
Daniel J. Curtin Jr. is a member in the Walnut Creek office of San Francisco-based McCutchen, Doyle, Brown & Enersen.
By Daniel J. Curtin Jr.
Even though the California courts have carefully guarded the right of the people to initiate laws - a power reserved to the people through the California Constitution - there are times that a court will strike down an initiative if it goes too far and interferes with essential governmental functions. This recently occurred in Orange County in a case involving the conversion of a military air base to civilian use. Citizens for Jobs and the Economy v. County of Orange, 2002 DJDAR 137 (Cal. App. Jan. 4, 2002).
In 1994, voters in Orange County approved Measure A, which authorized the county to proceed with planning a conversion process to establish civilian airport use at the El Toro Marine Corps Air Station. The same appellate court upheld Measure A as valid in City of Lake Forest v. County of Orange, D025946 (Cal. App. June 30, 1997) (unpublished).
In 2000, the voters then approved Measure F, "The Safe and Healthy Communities Initiative," which significantly restricted the ability of the county's Board of Supervisors to plan the conversion. It stated that because certain land-use projects affect the health and safety of neighborhoods and communities, the voters should make the decision about whether they should be approved by a two-thirds vote at a county general election. The specified projects included in the initiative were new or expanded jail facilities, hazardous-waste landfills and airport projects. Measure F also required that the board undergo certain procedural hurdles before spending money on the project.
Ample evidence in the record showed that the main objective of Measure F was to prevent construction of the proposed commercial airport and that the other land-use facilities covered by the measure were selected for their appeal to voters in different geographical areas of the county.
Various parties who opposed Measure F sought to have it declared invalid. A trial court found that it was unconstitutional and not the proper subject of an initiative.
The appellate court also held that the initiative was invalid. First, the court stated that it was mindful that courts should not strike down initiative measures lightly. DeVita v. County of Napa, 9 Cal.4th 763 (1995).
Article II, Section 11 of the California Constitution, which confers the right of initiative and referendum, states that all power of government ultimately resides in the people. The California Constitution speaks of initiative and referendum, not as a right granted the people, but as a power reserved by them. The DeVita and other courts have held that it is the duty of the courts to jealously guard this right of the people.
The court noted that it had long been its judicial policy to apply a liberal construction to this right wherever it is challenged, so that the court not improperly annul the right to local initiative or referendum.
Nevertheless, in reviewing the record and briefing in this case, the court found Measure F to be clearly beyond the power of the electorate. It was defective in three major respects: It interfered with the essential government functions of fiscal and land-use planning; it impermissibly interfered with administrative or executive acts; and it was unconstitutionally vague in its powers, such that the county and its board could reasonably complain that they would not be able to comply with it because of its alleged vagueness.
The court noted that the California Supreme Court in DeVita and other cases has held that general plans and zoning ordinances are subject to amendment by initiative. However, there are limitations, one of which is that an initiative cannot interfere with essential governmental functions. See Rossi v. Brown, 9 Cal.4th 688 (1995); Geiger v. Board of Supervisors, 48 Cal.2d 832(1957).
The court noted that Measure F stated: "No act by the County of Orange to approve any new or expanded jail, hazardous waste landfill, or civilian airport project shall be valid and effective unless also subsequently ratified by a two-thirds vote of the voters voting at a County General Election."
Measure F defined the term "[a]ct by the County of Orange to approve" in exhaustive detail as including, but not limited to, "any legislative action by the Board of Supervisors, in whatever capacity," with respect to enacting any general plan, airport master or master development plan, airport system master plan, acquisition or conveyance of land, formation of any other governmental or quasi-governmental entity "and any other legislative action to permit or facilitate" development of one of the specified three types of projects.
Measure F implicates and affects two essential government functions that were to take place pursuant to the approval of Measure A, land-use planning and fiscal management. Pursuant to its mandate under the 1994 Measure A, the county, through its board, adopted a community reuse plan for the El Toro property that included the proposed new commercial airport and other commercial, office and related uses.
Further planning activities included the development of an airport system master plan, the base transition plan, an airport layout plan for the Federal Aviation Administration and numerous environmental studies and document preparation, including further environmental impact reports and federal environmental impact statement preparation.
The court stated that the type of restrictions imposed by Measure F were significant constraints upon the ability of the board to plan land-use issues throughout the county. Further, Measure F placed unrealistic impediments upon the planning process by overbroadly defining the term "any act to approve." By doing so, it prevented the board, on its own behalf or as a local redevelopment authority designated by the Department of Defense, from pursuing a policy that was already in place.
Turning to the effect of Measure F upon the county's fiscal-management powers, the court then stated that Measure F impermissibly intruded into board prerogatives, particularly with respect to the functions of the board in managing its financial affairs and carrying out the public policy declared by Measure A.
The terms of Measure F sought to broadly limit through procedural restrictions the power of future legislative bodies to carry out their duties, as prescribed to them by their own inherent policy power. As such, the measure could not be considered to have a proper legislative subject matter.
Moreover, this measure failed the test for an initiative that may properly circumscribe the power of future governing bodies, by requiring voter approval for certain future proposals, if such an initiative simply amounts to a legislative measure that the government body could itself have enacted as set forth in DeVita.
Instead, Measure F is mainly administrative in nature, by dictating how and what spending may take place on a matter in which a controlling, although flexible and open-ended, legislative policy already has been established. It does not make any difference that Measure A contemplated that the planning process had not yet been completed and had to remain responsive to local and regional developments.
The voter approval and spending restrictions contained in Measure F did not set new substantive land-use policies, but instead made it difficult or impossible for the board to carry out already-established policy that the airport project should be fully investigated at least for planning purposes.
Also, the court said that Measure F was unconstitutionally vague because it failed to provide the board with clear instructions regarding certain procedural requirements. The court said that the uncertainty of the type of instructions imposed on the board, in the context of the planning process authorized by Measure A, interacted in this case with the other defects already identified in the measure to demonstrate its invalidity.
In the context of the factual record of this case, the court said that it was clear that the provisions of Measure F would serve to paralyze the functions of planning with respect to an unpopular project and create roadblocks in the form of administrative interference with the legislative policy imposed by a previous initiative measure.
Daniel J. Curtin Jr. is a member in the Walnut Creek office of San Francisco-based McCutchen, Doyle, Brown & Enersen.
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