May 30, 1995 - From the May, 1995 issue

Amendment of Local General Plan by Initiative Upheld by State Supreme court

The State's Supreme Court's deicision in De Vita v County of Napa upheld "Measure J" and consequently signals to voters that they can legislate aspects of their local General Plan in the future. Clare Bronowski, land use attorney with Christensen, White, Miller, Fink and Jacobs, explains in further detail below. 

The California Supreme Court has removed any doubt that initiative measures which amend a City or County's General Plan, and require subsequent votes of the people to make future changes, are legal. In March, the Court's decision in De Vita v. County of Napa upheld an initiative known as "Measure J" adopted by the voters of Napa County in 1990. The ballot measure adopted certain general plan policies and provisions protecting property designated for agricultural or open space use from future development, and the measure specifically provided that the Board of Supervisors could not amend those general plan sections without voter approval for the next 30 years. 

The DeVita case sends a clear message that voters may legislate the master plan of development for their city or county and may control the process in the future. Similar measures are under consideration elsewhere in the state, and the Supreme Court's decision may spur other communities to do the same. In the city of Ventura, the voters will decide in November whether to permanently prevent all property currently designated for agricultural or park use in the City's general plan or zoning code from a change in designation without a vote of the people. 

In the last 20 years, the practice of enacting land use regulations and growth control measures by initiative has become popular in California. It has always been clear that legislative acts such as zoning ordinances are subject to both initiative and referendum. The courts have upheld a variety of zoning and land use regulations enacted by ballot measure, and have stated that various procedural requirements, such as noticed public hearings and CEQA review otherwise required of such legislation do not apply to measures voted directly by the people. 

California has a long history of protecting the right of the people to legislate by initiative. However, in the land use context there are pitfalls which have invalidated many ballot measures: a zoning initiative cannot be discriminatory; cannot effect a specific adjudicative approval such as a conditional use permit or a tract map; cannot conflict with preemptive statewide law on matters of statewide concern; and must be consistent with the existing general plan. 

While a number of lower court decisions have upheld general plan amendments by initiative, the Supreme Court had never addressed the matter directly and had made conflicting statements about the voters' ability to enact a general plan amendment. In 1990, the Supreme Court found that a land use measure purporting to amend the general plan in Walnut Creek was invalid because it was merely a zoning ordinance which conflicted with the existing general plan and was thus void when enacted. 

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In the DeVita case for the first time a measure properly amending the general plan and ensuring the internal consistency of that plan was reviewed by the Supreme Court. In a lengthy decision the majority of the Court looked at all aspects of the general plan process and determined that there was nothing inherent about that process which prevented an amendment by initiative. The Supreme Court gave great deference to the power of the people to legislate by initiative without unnecessary procedural restrictions. The Court also found the state's planning law is intended to maximize local control over planning and does not indicate an intent to preempt the field by the state. 

The Supreme Court voiced support for the power of the people to control the destiny of their communities through their local general plans. The Court cites with approval the goal of Measure J to protect agricultural land from the encroachment of suburban development, stating "the phenomenon of sprawling development has been identified as a serious land use problem in this state." 

The DeVita case is also notable because of its thoughtful dissenting opinion by Justice Arabian which outlines the history of planning law in California since the adoption of the state's original planning law in 1927. The dissent opines that California planning law defines a particular process for the adoption of general plans (including the involvement of a variety of segments of the community, the planning commission, and professionals from many planning-related fields) and that process, rather than the final result, is what is protected by the law. Therefore, planning by initiative cannot achieve the same goal of preserving the process. The dissent also concludes that the California planning law does deal with a matter of statewide concern rather than a purely local matter in that the state has mandated certain procedures and oversight functions to ensure the adequacy of general plans. 

The debate will still continue between planning professionals and activists over who can best protect the state's resources and plan for the future development of our cities and counties. However, the Supreme Court has now spoken and made it clear that, if properly and carefully written, initiative measures legally can amend and implement the fundamental long-term planning documents which control development.

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© 2022 The Planning Report | David Abel, Publisher, ABL, Inc.