Citizens for Planning Responsibly v. County of San Luis Obispo

• Decision Date: 04 August 2009
• Docket Number: No. B206957.,No. B212254.,B206957.,B212254.
• Citation: 176 Cal.App.4th 357,97 Cal. Rptr. 3d 636
• Parties: CITIZENS FOR PLANNING RESPONSIBLY et al., Plaintiffs and Respondents, v. COUNTY OF SAN LUIS OBISPO et al., Defendants and Appellants; SAN LUIS OBISPO MARKETPLACE ASSOCIATES et al., Real Parties in Interest and Appellants. CITIZENS FOR PLANNING RESPONSIBLY et al., Plaintiffs and Respondents, v. COUNTY OF SAN LUIS OBISPO et al., Defendants and Respondents; SAN LUIS OBISPO MARKETPLACE ASSOCIATES et al., Real Parties in Interest and Appellants.
• Court: California Court of Appeals Court of Appeals

176 Cal.App.4th 357

97 Cal. Rptr. 3d 636

CITIZENS FOR PLANNING RESPONSIBLY et al., Plaintiffs and Respondents, v. COUNTY OF SAN LUIS OBISPO et al., Defendants and Appellants;

SAN LUIS OBISPO MARKETPLACE ASSOCIATES et al., Real Parties in Interest and Appellants.

CITIZENS FOR PLANNING RESPONSIBLY et al., Plaintiffs and Respondents, v. COUNTY OF SAN LUIS OBISPO et al., Defendants and Respondents;

SAN LUIS OBISPO MARKETPLACE ASSOCIATES et al., Real Parties in Interest and Appellants.

No. B206957.

No. B212254.

Court of Appeals of California, Second District, Division Six.

August 4, 2009.

Warren R. Jensen, County Counsel, and James B. Orton, Deputy County Counsel, for Defendants and Appellants and for Defendants and Respondents.

Bingham McCutchen, Stephen L. Kostka, Barbara J. Schussman and Marie A. Cooper for Real Parties in Interest and Appellants San Luis Obispo Marketplace Associates LLC, Ernest F. Dalidio, Jr., and Clara B. Dalidio.

Andre, Morris & Buttery, Michael J. Morris and Dennis Law for Real Parties in Interest and Appellants Ernest F. Dalidio, Jr., and Clara B. Dalidio.

Shute, Mihaly & Weinberger, Rachel B. Hooper, Ellison Folk and Kevin P. Bundy for Plaintiffs and Respondents.

OPINION

PERREN, J.

The State Aeronautics Act (SAA) (Pub. Util. Code, § 21001 et seq.)¹ establishes a comprehensive system "to further and protect the public interest in aeronautics and aeronautical progress" and specifies the means to do so. (§ 21002.) Included in the SAA are declarations of purpose which encompass the development, expansion and regulation of public airports and adjacent lands to promote public safety, and to minimize exposure to safety hazards and noise. (§ 21670, subd. (a).) These goals are to be achieved, in part, by use of airport land use commissions (§ 21670, subd. (b)), to "formulate an airport land use compatibility plan that will provide for the orderly growth of each public airport and the area surrounding the airport," to "safeguard the general welfare of the inhabitants within the vicinity of the airport and the public in general." (§ 21675, subd. (a).) Final authority for proposed action, however, lies with the affected city or county which may, by two-thirds vote of its governing body, overrule the commission. Here, inter alia, we are asked to decide if, by use of initiative, the electorate may act as the "governing body" and act in its place. We hold that it can.

The voters of the County of San Luis Obispo adopted an initiative measure amending a county's general plan and zoning regulations to permit a 131-acre mixed use development near a county airport. A citizens group filed a petition for writ of mandate in the superior court contending the SAA establishes a comprehensive system of land use regulation near airports which precludes use of the initiative power. The trial court issued a writ of mandate invalidating the initiative and prohibiting its enforcement. In its ruling, the trial court found that the SAA preempted the field and provided the only means for land use regulation within the area subject to commission authority. Therefore the power of the initiative could not be used. The trial court also found the initiative invalid because its subject matter was "adjudicative" in nature, as opposed to "legislative."

On appeal, the proponents of the initiative, the owner and the developer of the property, contend the initiative is within the power of the electorate, is legislative in its nature, lawfully amends the county's general plan and is not preempted by the SAA. We agree and reverse.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

In November 2006, the residents of the County of San Luis Obispo approved Measure J, an initiative measure amending the county's general plan and zoning ordinance with respect to a 131-acre property known as the Dalidio Ranch (the property). The property is bordered by various commercial uses and Highway 101, is used for agricultural purposes, and is near the San Luis Obispo County airport.

Measure J permits a mixed use development consisting of commercial, office, residential and agricultural uses, including a four-story hotel, a wastewater treatment plant and open space and recreational amenities. The zoning code amendment contains standards for development, including maximum densities, maximum building heights, maximum floor area ratios, parking requirements, minimum and maximum building size and configurations, setback requirement and permitted uses.

The initiative requires the developer to mitigate the effects of the development by making several millions of dollars in traffic and other improvements. The initiative regulates the timing of development, contains engineering standards and standards for issuing grading and building permits. The initiative also contains amendments to other general plan elements seeking to ensure general plan consistency.

The initiative states in pertinent part: "To ensure that development of the Dalidio Ranch Project is subject only to express, objective standards and ministerial actions that cannot be changed by subsequent discretionary actions or interpretations, development on land within this land use category shall be subject solely to State Law, General Plan provisions applicable to the Property and the following: [¶] the provisions of the Dalidio Ranch zoning district, ... [¶] grading and building standards of ... the County Code that are applicable to all development in San Luis Obispo County .... [¶] Building and grading permits shall be issued provided only that the applications for such permits comply with these provisions and regulations. No other existing or later-adopted regulation, guideline, ordinance, or San Luis Obispo County Code provision (including without limitation the chapters of Title 22 [county zoning regulations] other than Article 9.5 [Dalidio Ranch zoning district], and the Growth Management Ordinance) which purports to regulate or guide land use or development, shall be applicable to development on land designated under the Dalidio Ranch land use category."

Citizens for Planning Responsibly and Environmental Center of San Luis Obispo County filed a petition for writ of mandate under Code of Civil Procedure section 1085 challenging the validity of the initiative. They allege that it is preempted by state law because the property is within the airport land use plan adopted by the local airport land use commission pursuant to the SAA. They assert the SAA delegates exclusive authority to the board of supervisors as the final authority for the making of land use decisions regarding the property but that the language of the initiative impermissibly transforms this legislative act into an adjudicative one.

The trial court agreed. It found the initiative is an adjudicative, not a legislative, act because it approves a specific and detailed development project on a specific piece of property. The court also found that the SAA delegates exclusive authority to regulate land uses on the property to the county board of supervisors. The court issued a writ of mandate invalidating Measure J and prohibiting the county from implementing it. The court also granted plaintiffs' request for attorney fees.

DISCUSSION

A. Measure J Is a Legislative Act

1. Standard of Review of Initiative Measures

Whether an initiative measure constitutes a legislative or adjudicative act requires that we construe its language. To that extent our review is de novo. (See, e.g., Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1212-1213 [246 Cal.Rptr. 629, 753 P.2d 585] ["initiative measures are subject to the ordinary rules and canons of statutory construction ..."].) However, "[o]ur review of this appeal is also strictly circumscribed by the long-established rule of according extraordinarily broad deference to the electorate's power to enact laws by initiative. The state constitutional right of initiative or referendum is `one of the most precious rights of our democratic process.' [Citation.] These powers are reserved to the people, not granted to them. Thus, it is our duty to `"`jealously guard'"' these powers and construe the relevant constitutional provisions liberally in favor of the people's right to exercise the powers of initiative and referendum. [Citation.] An initiative measure `"must be upheld unless [its] unconstitutionality clearly, positively, and unmistakably appears."' [Citation.] An initiative measure amending a general plan or zoning ordinance is valid `so long as reasonable minds might differ as to the necessity or propriety of the enactment ....'" (Pala Band of Mission Indians v. Board of Supervisors (1997) 54 Cal.App.4th 565, 573-574 .)

2. Amendment of a General Plan and Zoning Ordinance Are Legislative Acts

(1) Only legislative acts are subject to the initiative process. (DeVita v. County of Napa (1995) 9 Cal.4th 763, 775 [38 Cal.Rptr.2d 699, 889 P.2d 1019].) Legislative acts are those which declare a public purpose whereas administrative, sometimes called adjudicative or quasi-adjudicative, acts implement the steps necessary to carry out that legislative purpose. (City of San Diego v. Dunkl (2001) 86 Cal.App.4th 384, 399-400 .)

(2) In the land use context, legislative acts are distinguished from administrative or adjudicative acts on a categorical basis. In Arnel Development Co. v. City of Costa Mesa (1980) 28 Cal.3d 511, 523-525 [169 Cal.Rptr. 904, 620 P.2d 565], our Supreme Court said: "[P]ast California land-use cases have established generic classifications, viewing zoning ordinances as legislative and other decisions, such as variances and subdivision map approvals, as adjudicative.... [T]he current California rule that rezoning is a legislative act is well settled by precedent .... We therefore adhere to the rule that a zoning ordinance is a legislative act and, as such, may be enacted by initiative."

Subsequent Supreme Court cases have sustained the principle of "generic...