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INTRODUCTION:
Since
the early 1970s, many California citizens have expressed
outrage at the ill effects of unbridled real estate development.
They have become fed up with the deteriorating quality of
life, characterized by unprecedented traffic congestion,
poor air quality, loss of open space, and a host of other
maladies.
According
to a tally by the California Association of Realtors, approximately
564 land use measures were placed on local ballots in California
cities and counties between 1971 and 1992, 415 of them since
January 1986. Approximately 46 percent of all land use ballot
measures from the early 1970s to the early 1990s were citizen-sponsored
initiatives, with the remainder placed before the voters
by a city council or board of supervisors, often as countermeasures
to those proposed by citizen groups.
There
is no indication that the interest in placing these measures
before voters has abated. In the November 1998 election,
more than 50 land use measures appeared on local ballots,
the highest figure since the peak in 1988. As growth-related
problems continue to escalate, local initiative campaigns
seem unlikely to fade from the political scene. In November
1998, for example, Ventura County received national publicity
because the ballot drives there represented an unprecedented
attempt to use the ballot box to shape a regional land use
policy affecting not only the entire county but virtually
all its cities. A countywide initiative requiring voter
approval for changing the zoning on agricultural and open-space
lands passed, and city urban-growth boundaries were adopted
in virtually all of the county's largest cities, including
Camarillo, Simi Valley, and Thousand Oaks.
Although
slow-growth initiatives continue to appear on local ballots
throughout the state, the success of such initiatives ebbed
in the March 2000 elections, where pro-growth forces won
11 of 15 land use contests in California. William Fulton,
Local Slow-Growth Measures Fare Poorly in March Balloting,
California Planning & Development Report (April 2000). Even
traditional slow-growth bastions such as Ventura County,
Monterey and Palo Alto registered pro?growth victories.
Id.
In November
2000, communities across the state voted on over 50 growth
control measures - the most since 1990. See Paul Shigley,
Land-Use Initiatives Fill Ballots, California Planning &
Development Report (Oct. 2000). Of those measures, 35 were
victorious. Lisa Vorderbrueggen, 35 measures Ok'd, Contra
Costa Times, Nov. 9, 2000, at A4. Several of the November
2000 measures were competing measures that addressed the
same subject matter. Because competing measures would be
legally inconsistent if both were approved, the measure
earning the highest number of votes in excess of 50% becomes
law. In Alameda County, voters considered two measures related
to the urban growth boundary in the eastern part of the
county. Voters approved a measure designed to curb development
by revising the boundary to follow more closely existing
city limits, and rejected a measure that would have affirmed
the current boundary. In San Francisco, voters were presented
with two measures limiting office space development in certain
urban neighborhoods. These particular competing measures
demonstrated the power of splitting the vote - neither of
them passed.
OVERVIEW
There
is no provision for initiative or referendum in the United
States Constitution. Consequently, many states have chosen
to adopt one or both of these powers in their state constitution.
California authorized the initiative, referendum, and recall
mechanisms in 1911. In California, the initiative and referendum
powers with respect to local ordinances are based upon Article
II, Sections 8-11 of the California Constitution, which
provides at Section 11 as follows:
Initiative
and referendum powers may be exercised by the electors of
each city or county under procedures that the legislature
shall provide. This section does not affect a city having
a charter. Initiative and referendum proceedings provide
a means for obtaining a direct popular vote on proposed
legislation or recently enacted legislation. The California
Supreme Court held that an initiative can be used only to
enact a statute-a legislative act-and cannot be used to
declare policy, or guide lawmakers in future decisions.
American Fed'n of Labor v. Eu, 36 Cal. 3d 687, 708 (1984);
see also Marblehead v. City of San Clemente, 226 Cal. App.
3d 1504 (1991). In short, the initiative process is used
to adopt ordinances or resolutions, and the referendum process
is used to reject them.
Since
the people reserved to themselves the powers of initiative
and referendum through the Constitution, the courts have
guarded these rights carefully. For example, when the California
Supreme Court upheld Proposition 140 (term limitations on
state legislators) in Legislature v. Eu, the court noted:
Accordingly,
the initiative power must be liberally construed to promote
the democratic process. [Citation omitted.] Indeed, it is
our solemn duty to jealously guard the precious initiative
power, and to resolve any reasonable doubts in favor of
its exercise. [Citation omitted.] As with statutes adopted
by the Legislature, all presumptions favor the validity
of initiative measures and mere doubts as to validity are
insufficient; such measures must be upheld unless their
unconstitutionality clearly, positively, and unmistakably
appears.
Legislature
v. Eu, 54 Cal. 3d 492, 501 (1991) (emphasis in original),
citing Calfarm Ins. Co. v. Deukmejian, 48 Cal. 3d 805, 814
(1989); see also Associated Home Builders, Inc. v. City
of Livermore, 18 Cal. 3d 582, 591 (1976) ("If doubts can
reasonably be resolved in favor of the use of this reserve
power, courts will pursue it."); DeVita v. County of Napa,
9 Cal. 4th 763 (1995) (upholding a county land use element
initiative amending the county's general plan); Rossi v.
Brown, 9 Cal. 4th 688 (1995) (upholding initiative prospectively
repealing local tax ordinance and barring future adoption
of a tax).
In 1978,
the California Supreme Court in upholding the general validity
of Proposition 13 (the Jarvis-Gann Tax Initiative) stated:
[T]he
initiative is in essence a legislative battering ram which
may be used to tear through the exasperating tangle of
the traditional legislative procedure and strike directly
toward the desired end. Virtually every type of interest
group has on occasion used this instrument. It is deficient
as a means of legislation in that it permits very little
balancing of interests or compromise, but it was designed
primarily for use in situations where the ordinary machinery
of legislation had utterly failed in this respect.
Amador
Valley Joint Union High Sch. Dist. v. State Bd. of Equalization,
22 Cal. 3d 208, 228 (1978) (emphasis in original).
Wielding
this "legislative battering ram," voters in cities across
the state have taken matters into their own hands and adopted
planning and zoning laws. Most often, they have done so
when the city council failed to heed their demands for specific
legislation.
For
the complete article, see the PDF VERSION.
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