Ballot Box Alternatives To CEQA And Land Use Litigation: Recent Developments In The Law Of Initiatives And Referenda
Land use litigators know that CEQA provides a potent weapon to challenge local government decisions affecting land use and development. It is often easy to plead a CEQA claim challenging such decisions, and CEQA will normally apply to them regardless of whether they are legislative (e.g., general plan, specific plan, zoning, and development agreement enactments and amendments) or quasi-adjudicatory (e.g., conditional use permit, subdivision map approvals) in nature. When an EIR has not been prepared to analyze the potential environmental effects of the local agency’s action, a CEQA plaintiff with standing who files suit within the law’s short limitations periods will also receive a very favorable standard of judicial review – the “fair argument” test – in the quest to invalidate the local land use action and require further environmental review.
But CEQA litigation is far from the only, or even necessarily always the most effective, option in the land use law “tool box” – there may exist even more direct and effective ways of changing local land use laws, and of approving (or thwarting) particular development projects dependent on those laws. When sufficient popular support can be marshalled, the local initiative and referendum powers can provide powerful non-CEQA alternatives for challenging and changing disfavored land use laws and some development decisions. The local initiative power – i.e., the power of the people to bypass or override their elected representatives and to initiate and enact local legislation directly – is reserved in California’s Constitution, expressly subject to exercise under statutory procedures provided by the State Legislature. (Cal. Const., Art. II, § 11; Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, 542.) Submission to a local agency of a qualified citizen-generated initiative petition – i.e., one in proper form and signed by the requisite number of voters as specified by statute – compels the local agency to either adopt the proposed measure exactly as drafted or to place it on the next ballot for a vote of the people, and, significantly, neither of these options requires or allows for CEQA review of the measure’s environmental impacts. (Tuolumne Jobs & Small Business Alliance v. Superior Court (2014) 59 Cal.4th 1029.)
A key contextual limitation on the initiative and referendum powers is that they apply only to legislative acts, and not to acts that are adjudicatory or administrative in nature. Still, given that many significant development projects require legislative changes to proceed, and that all project approvals must be consistent with the applicable general plan, specific plan and zoning, these powers of “direct democracy” are often relevant. And, within their allowed scope, they provide for a kind of “super” law-making: laws adopted through a voter-sponsored initiative process cannot thereafter be changed except by another vote of the people (Elec. Code, §§ 9125, 9217), thus precluding a hostile legislative body from repealing or thwarting the law enacted through the initiative process. (De Vita v. County of Napa (1995) 9 Cal.4th 763, 788.)
The initiative and referendum thus represent powerful legal tools and are recognized as “precious” democratic rights, but to be effective those rights must be exercised in substantial compliance with “the statutory requirements designed to protect registered voters from confusing or misleading information, so as to guarantee the integrity of the process.” (Mervyn’s v. Reyes (1998) 69 Cal.App.4th 93, 100-101.) As illustrated by a recent case in which I represented the County of Napa and its Registrar of Voters, a citizen-generated initiative petition is legally defective on its face – and must therefore be rejected by the reviewing elections official as a matter of ministerial duty – if it fails to comply with the fundamental statutory requirement that it “contain the full text of the measure that the initiative proposes to enact.” (James P. Wilson, et al. v. County of Napa, et al. (1st Dist., Div. 3, 2017) ___ Cal.App.5th ___, Case No. 149153, citing Elec. Code, §§ 9101, 9201.) My partner, Bryan Wenter, summarized this case – which involved a local land use initiative – in his Land Use Developments blog here. I won’t repeat Bryan’s analysis, and I agree with him that the case doesn’t break new legal ground; I will, however, add a few observations about the relevant law and the important “bright line” guidance this new decision provides, not only to elections officials tasked with performing their ministerial duty of reviewing initiative petitions for facial compliance with statutory requirements, but to the initiative proponents drafting such initiative petitions.
First, the “full text” rule for petitions is (and always has been) simple and straightforward: if your measure would adopt it, your petition must contain it. (E.g., We Care—Santa Paula v. Herrera (2006) 139 Cal.App.4th 387, 390 [“petition [must] contain the full and complete text of everything that will be enacted if the voters approve it”].) The rejected petition in Wilson would have enacted into new law (as mandatory, minimum permit requirements for oak tree removal under a new local scheme) certain “best management practices” set forth only in another referenced document outside the petition. (Wilson, ___ Cal.App.5th at ___ [“From the face of the petition in this case, it is apparent that the proposed measure would require permit applicants to comply with requirements specified in a document that is referenced but not attached or otherwise articulated in the petition.”].) In addition to violating the statutory “full text” requirement for exercise of the initiative power, enacting into new law the provisions of outside documents by reference without providing them to the voters in the initiative petition they are asked to sign carries serious potential for abuse and confusing and misleading voters – the very problems the “full text” requirement aims to avoid.
Second, given the proliferation of local and state initiative measures on ballots in recent years, as well as the judicially acknowledged fact that many such measures are poorly drafted and confusing (Brown v. Superior Court (2016) 63 Cal.4th 335, 357 [dis. opn. of Chin, J., quoting Gov. Brown press release quoting former Chief Justice Ronald George]), the need for reaffirming the clear, bright-line “full text” rule – a rule that is simple and capable of consistent ministerial application and enforcement – is probably greater than it has ever been. An elections official performing his or her ministerial duty cannot be expected, required or allowed to go beyond the face of the petition to determine its completeness and compliance with the law, nor to exercise discretion by delving into the substance or relative importance of enacted provisions that are omitted from its text.
Third, like the “full text” rule itself, the problem with careless initiative drafters neglecting to comply with it by not including their proposed measure’s full text in the petition presented to the voters is by no means a new one; as the Supreme Court has observed, “the type of defect that most often has been found fatal is the failure of an initiative or referendum petition to comply with the statutory requirement of setting forth in sufficient detail the text of the proposed initiative measure or the legislative act against which the referendum is brought ‘so that registered voters can intelligently evaluate whether to sign the initiative petition and to avoid confusion.’” (Costa v. Superior Court (2006) 37 Cal.4th 986, 1016, fn. 22.) And as the Wilson court observed in applying the well-established “full text” rule to affirm a judgment upholding rejection of an initiative petition that failed to contain the measure’s “full text”: “The interpretation of the full text requirement adopted by the trial court which we affirm is neither new nor would it [as appellants had argued] invalidate all other initiatives containing a cross reference.”
In sum, when properly exercised, the initiative power can be a powerful tool for enacting or challenging local land use laws. But proponents’ substantial compliance with statutory requirements for the exercise of this power is essential, and part of such compliance includes carefully drafting the proposed measure to ensure the “full text” of the new laws being enacted is either contained within or attached to the circulated and submitted initiative petition. It could aptly be said of compliance with the full text rule, as a series of popular AT&T commercials once intoned, “It’s not complicated.” But, as Wilson reminds, it is important. It can mean the difference between an initiative measure qualifying for direct local agency adoption or the ballot, or being rejected because the petition fails to comply with formal statutory requirements. Initiative proponents who do not scrupulously draft their petitions to include or attach the full text of everything they seek to enact into law do so at their peril, and should not be surprised to find them rejected.