California land use nerds know well the origin of the right of initiative and referendum. A function of the national reform movement at the beginning of the twentieth century, California voters took matters into their own hands and inserted the right of initiative and referendum into the California Constitution. It has been used for good and bad depending upon one’s perspective. When the Legislature proved inept at addressing Coastal zone planning, the voters stepped in and adopted coastal regulations. When the Legislature failed to deal with property tax reform, Howard Jarvis and Paul Gann upended property tax law. Sacramento utility voters closed the local nuclear reactor. Development project approvals have been set aside by the voters or on rare occasion, streamlined. The courts have stayed on the sideline, accepting the responsibility to protect the exercise of these constitutional rights.
Not every governmental action earns a spot before the voters: only legislative decisions. In the land use world, that means general plans, area plans, specific plans and the like are fair game. Quasi-adjudicatory decisions such as tentative maps and use permits are off limits. Because agency action takes many forms, there is room to debate the extent to which these constitutional powers apply to other government actions. As a recent case on point, the City of San Bruno sold property to a developer to develop a hotel project. The city had previously approved a specific plan for the site for the purpose of encouraging redevelopment. Following City Council approval of a resolution approving the sale of the land, local voters with the support of a labor union (the latter perhaps seeking a labor agreement), qualified a referendum measure. Given the particular history of the project and the prior planning efforts, the trial and appellate court concluded that the property sale was not a legislative act, but was an administrative act in furtherance of the prior legislative actions. The court’s holding is not to suggest that every property sale is immune from a referendum, but when the transaction is in furtherance of documented planning efforts, it may be protected.
Which brings me to the 2017 legislative session. Apparently offended that the initiative process may be used to facilitate a land use decision, AB 890 forecloses attempts by voters to approve certain general plan amendments and zoning changes (for example, converting discretionary approvals into ministerial approvals or intensifying development intensity) by initiative. Development agreements could similarly only be approved by the city council or board of supervisors. There are a number of exceptions but those require the Court to determine what the “primary purpose” is of the initiative effort, which as many attorneys know, is a challenge for a reviewing court to ascertain given the lack of formal legislative history. Given that the legislature is touting its efforts this year to break the housing backlog, this bill which recognizes that ability of voters to turn projects down or make development more difficult but creates barriers for voters to take the initiative (so to speak) is backwards, plain and simple. To paraphrase Animal Farm, this legislation embraces the idea that some voter ideas are more equal than others. If this becomes law, the courts will have to go back to the origins of initiative law in California and ask itself: is this what the voters had mind in 1911? That the legislature has the power to selectively dictate when the voters can act on their own? Personally, my money is on the voter’s side.
Either way, let the Governor know what you think.