Having the Last Say: Use of Parkland for Road and Bridge Requires Local Voter Approval

By William W. Abbott

The right of California voters to control their own legislative fate derives from the national political reform movements at the beginning of the 20th Century, and in fact, Hiram Johnson was elected governor in 1910 in part due to his support for initiatives and political reform. In the following 100 years, this populist element of democracy has become part of local land use planning and development legal framework as local voters have used California’s constitutional initiative and referendum powers to shape growth. A recent case from the City of Santa Barbara illustrates a variation on the intersection of planning and voter control. Citizens Planning Association v. City of Santa Barbara (2011) ____ Cal.App.4th ____.

In 1982, the voters in the City of Santa Barbara amended the City Charter by restricting the ability of the City to transfer or encumber land “dedicated to public park or recreation purposes” without voter approval. This charter amendment allowed the City Council by contract to grant concessions, permits or leases compatible and accessory to “the purposes for which the property is devoted.” In 2006, the City approved a 25 lot development. Of the 50+ acre site, 35.7 acres were devoted to open space. Project access necessitated a bridge across Arroyo Burro Creek. The 2006 approval generated a successful CEQA legal challenge. In 2008, the City approved a supplemental EIR, providing that access to 22 of the 25 residential units would be via the new bridge spanning Arroyo Burro Creek. One anchor of the bridge apparently was to be located on a City owned open space parcel. At the time of the 2008 project approval, the City Council adopted findings establishing the City’s basis for not submitting the matter to the voters. These findings pertained to compatibility of the bridge and the underlying park land, that the bridge would be dedicated for public use, that there would be improved public access to area parks, that the bridge and road use would be accessory and minor in terms of the underlying open space parcel. Based upon the City Council approved findings, the use of the open space land for the bridge was not submitted to the voters. A community group filed suit, alleging both CEQA and City Charter violations. The trial court rejected the CEQA arguments, but granted relief on the basis that city voter approval was required.

The court of appeal agreed with the trial court. Noting that the findings were simply those of staff as submitted to the City Council, and that there had been no evidentiary hearing on those issues, the appellate court had little difficultly rejecting the findings of the City Council. The appellate court’s view of the evidence was that the land had been dedicated for open space and/or creek restoration purposes and not for the purpose of developing a roadway. Accordingly, the construction of a road and bridge on that property was not compatible with and could not be viewed as “accessory.” Bottom line: voter approval required.

The developer’s final argument was that 2006 litigation operated as res judicata and as the issue of voter approval had not been raised, the issue could not be litigated in the second legal proceeding. The appellate court rejected this argument as well, noting that as the City Council had made no findings in 2006 regarding the compatibility of the road and bridge with the open space lands, the issue could not have been litigated in the first lawsuit. Accordingly, the issue was properly raised in the second lawsuit.

William Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

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