Amendments To A County General Plan And Zoning Ordinance Are Legislative Acts And Subject To The Initiative Process

In Citizens For Planning Responsibly v. County of San Luis Obispo, (— Cal.Rptr.3d —-, Cal. App. 2 Dist., August 4, 2009), a California Court of Appeal upheld a county initiative measure that approved a large mixed-use development in an area near an airport, finding that voters may override the provisions of a land use plan adopted by the local airport land use commission under the State Aeronautics Act (“SAA”).

The court rejected arguments of project opponents that the SAA preempted voter control over airport area land uses, and ruled that the measure was a legislative act subject to initiative rather than an adjudicative act, because it approved general plan and zoning changes which are categorically considered legislative acts.

Facts

In November 2006, the voters of San Luis Obispo County (“County”) approved Measure J, an initiative that amended the County’s general plan and zoning ordinance to allow a mixed use development in an area near the San Luis Obispo County airport. The initiative permitted development that was not allowed under the land use plan adopted by the local airport land commission.

Opponents of Measure J, Citizens for Responsible Development, filed suit seeking to invalidate it because it was an adjudicative rather than a legislative act, and because the SAA delegates authority to override the airport land use commission’s plan exclusively to the County Board of Supervisors. The trial court invalidated Measure J, finding that an initiative which addresses a single development project was adjudicative rather than legislative, and that the voters did not have the authority to override the airport land use commission plan. The County appealed.

Decision

The court found that the initiative was valid and reversed the trial court ruling. The court premised its ruling on the “long-established rule of according extraordinarily broad deference to the electorate’s power to enact laws by initiative,” and the rule that an initiative must be upheld unless its unconstitutionality “clearly, positively, and unmistakably appears.” Relying on a 1980 California Supreme Court case, the court found that existing case law establishes “generic classifications” for which acts are legislative and which are adjudicative. General plan amendments and zoning ordinances are always considered legislative acts subject to the initiative, but other actions regarding individual properties, such as variances and subdivision map approvals, are always considered adjudicative and are not subject to the initiative. The court determined that Measure J, which amended the county’s general plan and zoning ordinance, was a legislative act which was properly subject to the initiative process.

Next, the court turned to the question of whether the SAA preempted the voters’ ability to override a local airport land use plan. The court noted that the SAA does not preempt local land use regulation, but rather expressly permits it by giving county boards of supervisors the power to overrule decisions of local airport land use commissions. The role of the airport land use commission is advisory, and the local governing body retains ultimate control over land use decisions. The electorate may make the same legislative decisions that the board of supervisors is empowered to exercise. Moreover, while the SAA requires a board of supervisors to make findings in support of its decision to overrule a land use plan, the court found that such a rule cannot be extended to the electorate because the voters are incapable of complying with such requirements. The court found that statutory procedural requirements governing land use decisions generally do not apply to initiatives.

Questions

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Jon Goetz | 805.786-4302

Mona Ebrahimi, Karina Terakura or Amara Harrell | 916.321.4500