This article examines El Dorado County’s Measure G as a case study in adopting a general plan by initiative. The article evaluates the pros and cons of this process and suggests modifications to the California initiative process.

The History of El Dorado County’s Measure G

On March 2, 2004, the El Dorado County electorate overwhelmingly rejected the “El Dorado County General Plan Implementation Act” or “Measure G” by 70 percent of the voters: Essentially, Measure G provided the electorate the opportunity to approve, by initiative, a county general plan. This section of this article summarizes the history of land use planning in El Dorado County that led up to the placement of Measure G on the ballot and summarizes the terms of the general plan that is the subject of Measure G.

On February 5, 1999, the Sacramento County Superior Court issued a 142-page “Ruling on Submitted Matter: Petition of Writ of Mandate,” (1999 writ) concluding that the El Dorado County Board of Supervisors had failed to comply with the California Environmental Quality Act (CEQA) prior to adopting a general plan in January of 1996 (1996 general plan). Pursuant to the 1999 writ, in September 1999, the county set aside its approval of the 1996 general plan and the certification of the environmental impact report (EIR) that the county had relied upon to approve the 1996 general plan.

The 1999 writ provided the county with a detailed explanation of the basis for the court’s conclusion that the county had failed to comply with CEQA and the corrective measures the county could take. The 1999 writ ultimately concluded that the county must correct elements of its CEQA compliance, but left open the possibility that proper CEQA compliance would be primarily procedural and would not affect the terms of the 1996 general plan: “only through full compliance with CEQA will the county be able to certify the Environmental Impact Report and approve the General Plan.”

During the same time period, and in parallel with the above activities by the county and the court, the county’s electorate has been taking its own actions to obtain an approved general plan. On November 3, 1998, while the litigation of the county’s approval of the 1996 general plan was pending, the county’s electorate approved “Measure Y,” which added five transportation related policies to the 1996 general plan. A lawsuit was filed challenging Measure Y, in part on grounds that Measure Y rendered the general plan internally inconsistent. However, after the county set aside the 1996 general plan in response to the 1999 writ, the litigation over Measure Y was dismissed as moot and not ripe. As a result, the merits of the challenges to Measure Y have not been decided by a court.

Since the issuance of the 1999 writ, the county has been in the process of drafting a revised Environmental Impact Report for the general plan and issued a draft EIR (DEIR) on May of 2003. The DEIR analyzes the impacts of the 1996 general plan, as amended by Measure Y, along with three other alternatives, in equal detail. In January of 2004, the county issued a final environmental impact report (FEIR) responding to the 3000 comments that were submitted on the May 2003 DEIR. The county Planning Commission is currently in the process of holding a series of six full-day hearings on the FEIR.

On October 21, 2003, the registrar of voters certified to the board of supervisors an initiative petition seeking the adoption of a general plan for the county and the board of supervisors directed that the El Dorado County General Plan Implementation Act or Measure G be placed on the March 2, 2004 ballot. Measure G consisted of the 1996 general plan with one substantive change: Measure G removed some of the 1996 general plan’s policies and implementation measures pertaining to affordable housing. Perhaps most significantly, Measure G removed the 1996 general plan’s Implementation Measure HO-C, which obligated the county to adopt a mandatory inclusionary housing ordinance that would require a percentage of units in market-rate developments be affordable to very low, lower, and moderate income households. As described above, on March 2, 2004, the county’s electorate disapproved Measure G.

The Challenges Associated with Measure G and General Plans via Initiative

Although we will never know why the electorate overwhelmingly rejected Measure G, the approval of general plans by initiative, and the electorate’s consideration of Measure G in particular, present several challenges that may have led to the measure’s rejection. This section identifies those challenges, some of which were identified by Mark August Nitikman, in his Note, “Instant Planning—Land Use Regulation by Initiative in California,” published in the Southern California Law Review in January 1988 and by the El Dorado County Counsel’s December 12, 2003 Report on Initiative Measure G.

This article does not focus upon the legality of approving a general plan via initiative, which remains an open question. Although the California Supreme Court, in DeVita v. County of Napa, 9 Cal.4th 763 (1995), held that a general plan could be amended by initiative, no appellate court has addressed whether a city or county can approve a general plan in its entirety. Accordingly, this article addresses the legal bases for approving a general plan via initiative only as they assist in describing the policy challenges of such a process.

The Absence of Interactive Public Involvement

Despite the fact that one purpose of the initiative process is to increase the electorate’s involvement in decision-making, Measure G exemplifies the initiative process potential to reduce the interactive involvement by the electorate. As compared to the process required of a board of supervisors in approving a general plan, a general plan approved by initiative provides little opportunity for the public to affect the terms of the general plan. Once an initiative has been placed on the ballot, the only practical opportunities to modify the general plan are: (1) place an alternative initiative on the same ballot; (2) reject the general plan; or (3) approve the general plan but modify its terms through a subsequent initiative.

In comparison, the process by which a board of supervisors approves a general plan acknowledges the significant impacts, both beneficial and adverse, that land use decisions can have on individuals by providing more opportunities for individuals to modify the general plan. Under the Planning and Zoning Law, a local government, except a charter city, must comply with various statutory procedures before making administrative or legislative land use decisions. First, the jurisdiction must designate a planning agency, which must provide notice and a hearing before taking any action on the proposed general plan. CEQA compliance, which arguably is not required in conjunction with the electorate’s vote on a general plan, requires that the jurisdiction provide opportunities for public comment and, if an environmental impact report (EIR) is completed, requires that the jurisdiction respond individually to each public comment. After consideration of the CEQA analysis of the general plan’s impact, the agency must then present a recommendation to the jurisdiction’s legislative body. The legislative body must hold a noticed public hearing. The body may not modify the ordinance in a manner not considered by the planning agency without referring the matter back to the agency.

The absence of interactive public involvement by the electorate when considering approval of a general plan by initiative reflects the courts’ interpretation of the initiative authority generally. Generally, the voters’ initiative authority is coterminous with that of the legislative body. However, while the legislative body must comply with “procedural” legal requirements, such as holding public hearings and responding to comments, the courts have determined that in the initiative process the electorate need only comply with “substantive” legal requirements. Thus, even where procedural requirements are designed in part to develop measures to mitigate land use decision’s substantive impacts upon individual property owners, an initiative proposing approval of a general plan need nor comply with the procedural requirement.

Looking Beyond the Jurisdiction's Interests

A second challenge presented by the initiative process, as it applies to approving general plans, is that the electorate has more discretion than does the jurisdiction’s legislative body to approve a general plan without consideration of regional interests such as adequate housing and water. With the exception of, California Government Code § 65583, which requires that a general plan’s housing element consider the jurisdiction’s share of the regional housing, many of the laws that require a legislative body to consider regional interests do not apply where a general plan is approved by initiative.

For instance, CEQA compliance, which requires the legislative body to analyze the impacts of approving the general plan, and mitigate those impacts where feasible, regardless of whether those impacts are within the jurisdiction’s boundaries, arguably is not required where the electorate approves a general plan through initiative. In Friends of Sierra Madre v. City of Sierra Madre et al., Cal.4th___, Case No. 8085088 (March 29, 2001), the Supreme Court of California affirmed that unless the ballot measure is submitted to the voters by a discretionary act of the legislative body, CEQA’s definition of “project” generally excludes, the submittal of initiative to a vote of the people of a particular community. Without CEQA compliance, the general plan is also not subject to other statutory requirements, such as Water Code §10910 (requiring the land use agency to obtain a water supply assessment from the applicable. public water system) that use CEQA as a trigger for compliance.

Similarly, Government Code §§ 65863.6 and 65302.8, would not apply when the general plan is approved through initiative. Government Code §§ 65863.6 and 65302.8 require. that cities and counties consider the effect of their general plans on regional housing and make findings where a mandatory general plan element restricts housing supply. It is likely that the inapplicability of Govt. Code §§ 65863.6 and 65302.8 facilitated Measure G's proposed removal of some of the 1996 general plan’s more stringent affordable housing restrictions.

The Length and Complexity of a General Plan

One of the primary practical difficulties associated with approving a general plan through initiative is the length and complexity of such plans. For instance, the general plan that is the subject of Measure G is 328 pages and includes approximately 90 policies in the land use element and over 70 policies in the circulation element, alone. In addition, as mentioned above, where the general plan is considered for approval through by the board of supervisors, there is a legally required process that requires the jurisdiction to present the general plan, and the general plan’s impacts, to interested members of the electorate, and that requires the county to respond to the public’s comments. Where the general plan is proposed via initiative, the legally required vetting process is limited to the county counsel’s impartial 500-word analysis of the initiative and the ballot arguments for and against the measure. Although the El Dorado County Board of Supervisors directed county counsel to draft a report to supplement the 500-word analysis, such a report is not required. Thus, the length and complexity of a general plan, along with the absence of any required procedure for breaking down the general plan for presentation to the electorate and responding to comments from the electorate, significantly reduces the number of informed voters.

Flexibility

Approval of a general plan via initiative is cumbersome. As discussed above, once an initiative is on a ballot, the practical options for modifying that initiative are limited. In comparison, when a general plan is approved by a jurisdiction’s legislative body, the process of staff, planning commission, board of supervisors/city council review, as well as the CEQA compliance process, provide opportunities to modify the general plan prior to approval.

To a limited extent, the El Dorado County General Plan Implementation Act anticipated the problems associated with this inflexibility by including a provision that allows the board of supervisors to amend the housing element of the general plan “as required through consultation with the Department of Housing and Community Development (HCD) or in accordance with the periodic review of the Housing Element in [sic] as provided in Article 10.6” of the Government Code.

The inflexibility of approving a general plan by initiative would have likely hampered the county’s compliance with the Planning and Zoning Code. The Planning and Zoning Code provides the requirement that jurisdictions adopt general plans, and describes the necessary elements of a general plan. Planning and zoning law requires that a general plan be internally consistent. Despite the fact that the 1999 writ denied petitioners’ arguments that the 1996 general plan was invalid under planning and zoning law, there is a risk that the Measure G general plan could be found to internally inconsistent due to inconsistencies between the 1996 general plan and the transportation policies approved by the county’s electorate in Measure Y.

In its December 12, 2003 letter, El Dorado County Counsel offered two potential strategies to address internal inconsistencies that might exist within the 1996 general plan as modified by Measure Y. First, counsel suggested that the board of supervisors “place a package of mitigation and implementation measures on the ballot for consideration by the voters in November, 2004.” Second, counsel suggested that inconsistencies could be mitigated through measures placed in the zoning ordinances that implement the general plan.

While both strategies were admirable attempts to respond to Measure G, the two strategies highlight, rather than mitigate, the cumbersome nature of app roving a general plan via initiative. For example, there is no guarantee that the electorate would approve the “package of mitigation and implementation measures” placed on the ballot by the board of supervisors. Moreover, as discussed above, the California Supreme Court has held that where a legislative proposes a measure to the voters, the decision becomes subject to CEQA. Thus, the board of supervisors’ package of mitigation and implementation measures would be subject to the delay, costs, and uncertainties associated with CEQA compliance. Finally, even if the inconsistencies could be remedied through changes to the zoning ordinance, such a strategy would allow a period of time to pass in which any internal inconsistencies stood uncorrected.

Inability to Tier Off the CEQA Document

Where a general plan is approved by the electorate, future project proponents within the jurisdiction lose the opportunity to tier off the general plan’s EIR. As discussed above, CEQA compliance is not required in conjunction with the electorate’s approval of a general plan via initiative. As a result, future project proponents will not have the opportunity to tier off of, or otherwise rely upon, a general plan EIR. Thus, the cost of development will increase as individual project proponents will be required to perform their own analyses of cumulative impacts instead of relying upon a recent general plan EIR.

To alleviate this burden on future development, county counsel suggested in its December 12, 2003 letter that, if the electorate had approved Measure G, the county could complete an EIR analyzing the impacts of the 1996 general plan as amended by Measure Y, subsequent to the Measure G's approval. Essentially, the CEQA analysis could be completed in conjunction with the board of supervisors’ submission of a mitigation measure package to the voters, or in connection with a zoning ordinance resolving internal inconsistencies, and would provide a broad CEQA analysis of Measure G’s impacts that could then be relied upon by subsequent project proponents. However, the legal defensibility of such a document is questionable, given that the analysis of Measure G’s impacts would be completed subsequent to its adoption, thereby minimizing opportunities to mitigate for Measure G’s impacts.

Complying with the Court’s Order

Had Measure G been approved, one practical difficulty specific to El Dorado County’s circumstance would have been demonstrating to the Sacramento County Superior Court that El Dorado County had complied with the 1999 writ. The 1999 writ specifically directed El Dorado County to: correct the violations of CEQA that occurred during the environmental review process, either by making proper findings or by performing a proper environmental review of certain aspects of the Plan as set forth above.

Had Measure G been approved, no such corrections to the findings or “proper environmental review” would likely have been completed. The county could argue to the court that because the initiative did not require CEQA compliance, the county’s obligation to demonstrate such compliance was moot. The court, in turn, could argue that the 1999 writ imposed specific obligations upon the county in addition to those obligations that the county must satisfy independent of the writ. For practical purposes, the success of these arguments would likely depend upon the degree of the judge’s interest in maintaining control over the county’s general plan process.

The History and Future of the Initiative Process

Given the challenges presented by the initiative process in general; and as applied to the adoption of general plans in particular, it is important to recall the impetus for providing the electorate the right-to-initiative. Article II, § 11 of the California Constitution provides that the electorate of any general law city or county may exercise the right of initiative. The philosophical underpinnings of the right-to initiative or “direct democracy” were the theories of Rousseau, who insisted that people were entitled to “absolute” control of the state. In the United States, the right-to-initiative was supported by the Progressive movement of the 1800s to curb the perceived power of corrupt corporations over the legislature. Essentially, the Progressive movement believed that the potential for the electorate to vote out an elected official no longer effectively influenced the elected officials’ implementation of their authority.

However the philosophical underpinnings of the right-to-initiative conflicts with the underpinnings of the republican form of government promised to the states by the United States Constitution. As described by Mark August Nitikman: A major function and goal of [a republican form of government] is to balance the interests of the majority against those of the minority. As Madison noted in Federalist No. 10, the challenge is to ‘secure the public good. against the danger of [an uncontrolled majority], and at the same time to preserve the spirit and the form of popular government….’

Despite the values of republican government and the challenges of the initiative process, some of which are set forth above, the impulse supporting the right-to-initiative/direct democracy retains strong appeal. Measure G presented itself as a vehicle to “take our planning process out of the back rooms, codify limits on building and protect our natural resources.” The March 2, 2004 successful gubernatorial recall and election of Governor Schwarzenegger provided even stronger evidence of the appeal of the right-to-initiative/direct democracy. On a national stage, and with a different political bent, the appeal of direct democracy has been expressed by dismay that the presidential candidate who had the majority of the electorate’s votes lost to the presidential candidate with the majority of the electoral college’s votes.

Conclusion and Implications

Given its continued appeal, any reform of California’s initiative process must balance, rather than reject, the right-to-initiative/direct democracy with the challenges described above and evidenced by Measure G. This article provides two alternative modifications to the initiative process in California.

The first modification to the initiative process would significantly modify the California electorate’s right-to-initiative to narrowly reflect the constructive sources of support for that right. This modification would limit the electorate’s right-to-initiative to the right to prioritize the applicable legislative body’s agenda. As proposed by policy analyst Phoebe Varinia Demund, to prioritize the legislative agenda would give the electorate the authority to mandate that the legislative body consider a specific issue of concern; however, the electorate would not have the. authority to mandate the legislative body’s conclusion with respect to any issue. Rather, the electorate would merely have the authority to require that the legislative body complete a thorough investigation of the issue. This modification to the initiative process would allow the electorate to expedite, and to better. control, the legislators’ responsiveness to the electorate’s priorities. At the same time, this modified initiative process would allow the legislative and administrative bodies to apply their expertise to the prioritized issue, and to balance majority and minority interests. Moreover, this initiative process would provide elected officials with a degree of political cover to investigate the complex and controversial of issues, without mandating that the elected officials necessarily agree on any particular solution.

The second proposed modification to the initiative process requires modifying the judicial standard of review for initiatives proposing land use modifications. Although no court has specifically provided a standard of review of general plans approved via initiative, the California Supreme Court’s decision in Associated Home Builders of the Greater Eastbay, Inc. v. City of Livermore, indicates that a reviewing court should use the same standard for reviewing land use ordinances regardless of whether that ordinance is approved by initiative or by the legislative body. Despite some evolution of this precedent, the judicial standard of review still fails to adequately consider that land use measures approved by initiative do not have the benefit of the procedural protections provided when the same measures are approved by a legislative body. Accordingly, land use measures, such as a general plan, that are approved by initiative should be the subject of heightened judicial scrutiny to determine whether the measure adequately protects individual property rights.
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Wendy Lee Bogdan is an Associate Attorney, at Downey Brand LLP, at the firm’s Sacramento, California offices. Ms. Bogdan’s practice emphasizes natural resources and land use law, including mining law, and advises clients on the federal Endangered Species Act, California Endangered Species Act, National Environmental Policy Act, California Environmental Quality Act, Clean Water Act, Clean Air Act, and on local government land use law.