DeVita v. County of Napa, A059429

• Decision Date: 16 December 1993
• Docket Number: No. A059429,A059429
• Citation: 26 Cal.Rptr.2d 274,20 Cal.App.4th 1716
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 20 Cal.App.4th 1716, 26 Cal.App.4th 645, 31 Cal.App.4th 905 20 Cal.App.4th 1716, 26 Cal.App.4th 645, 31 Cal.App.4th 905 Richard M. DEVITA et al., Plaintiffs and Appellants, v. COUNTY OF NAPA, et al., Defendants and Respondents.

Page 274

26 Cal.Rptr.2d 274

Previously published at 20 Cal.App.4th 1716, 26 Cal.App.4th 645, 31 Cal.App.4th 905

20 Cal.App.4th 1716, 26 Cal.App.4th 645, 31 Cal.App.4th 905

Richard M. DEVITA et al., Plaintiffs and Appellants, v. COUNTY OF NAPA, et al., Defendants and Respondents.

No. A059429.

Court of Appeal, First District, Division 1, California.

Dec. 16, 1993.

Review Granted March 17, 1994.

Mark L. Armstrong, Charles A. Klinge, Gagen, McCoy, McMahon & Armstrong, Danville, for plaintiffs/appellants.

Robert Westmeyer, County Counsel, Margaret Woodbury, Chief Deputy Co. Counsel, Napa County, Napa, Mark I. Weinberger, Rachel B. Hooper, Christy H. Taylor, Shute, Mihaly & Weinberger, San Francisco, for defendants/respondents.

Daniel P. Selmi, Los Angeles, for amicus curiae Napa County Farm Bureau.

Ronald A. Zumbrun, James S. Burling, Edward J. Connor, Jr., Pacific Legal Foundation, Sacramento, for amicus curiae Pacific Legal Foundation.

NEWSOM, Associate Justice.

This appeal concerns a challenge to a local initiative, Measure J, adopted by Napa County voters to preserve agricultural land. On March 6, 1991, a California corporation, Security Owners Corporation, Inc., a California non-profit association, Building Industry Association of Northern California and five residents of Napa County, Richard M. DeVita, Al C. Fournier, Matthew A. Thomson, Lilburn Clark, and Shirley E. McQueeney, (hereafter appellants) filed a complaint against Napa County and Napa County Board of Supervisors (hereafter County) seeking a declaratory judgment that Measure J is invalid and a writ of mandate ordering the board of supervisors to cease enforcing the measure. The matter was tried in Napa County Superior Court on joint exhibits and an extensive "Stipulation to Agreed and Admitted Facts and Admissibility of Evidence." After a hearing on June 12, 1992, the trial court issued a 21-page decision declaring the initiative to be valid and dismissing the petition for writ of mandate.

In general, Measure J confirms existing portions of the general plan relating to agricultural land through use of the initiative power, thus ensuring that these portions of the plan cannot be changed without a vote of the people. (Elec.Code, § 3719.) Specifically, it readopts the portions of the Napa County General Plan Land Use Element classifying land as "Agricultural Resource" and "Agriculture, Watershed, and Open Space" and restates certain policies of the general plan, concerning minimum lot size and residential density, applying to these classifications of land.

In addition, Measure J adds subsection 9 to the Napa County General Plan Land Use Element which explicitly restricts changes in agricultural land use without a vote of the people. Subsection 9 provides that, until December 31, 2020, the portions of the general plan relating to land designated "Agricultural Resources" or "Agriculture, Watershed, and Open Space" can be amended only upon a vote of the people, except under certain specified conditions. These conditions include (1) a redesignation of land use upon annexation to a city, (2) a redesignation upon certain specified findings to the effect that the land is physically unusable for agriculture, (3) a change in land use required for the siting of a solid waste disposal facility, or (4) the necessity of removing restrictions to avoid an unconstitutional taking of property.

We will consider, first, the readoption of the portions of the general plan pertaining to agricultural land use and, secondly, the requirement of voter approval for future amendment of these portions of the plan. With respect to the first issue, appellants do not contend that Measure J suffers from some legal defect not applying to other similar initiatives. Thus, they do not question the trial court's finding that "there is no evidentiary showing that the amendment either facially will result or as applied has resulted in any internal inconsistency between that portion of the amended Land Use Element affecting [agricultural land use] and the other elements of the General Plan including the housing and circulation elements." Instead, challenging a settled assumption in California case law, they raise the fundamental question whether a general plan may be adopted or amended by initiative.

Two Court of Appeal decisions hold squarely that a general plan may be amended through the initiative power (Save Stanislaus Area Farm Economy v. Board of Supervisors (1993) 13 Cal.App.4th 141, 16 Cal.Rptr.2d 408; Duran v. Cassidy (1972) 28 Cal.App.3d 574, 104 Cal.Rptr. 793) and other decisions reflect this assumption in dicta (Committee of Seven Thousand v. Superior Court (1988) 45 Cal.3d 491, 247 Cal.Rptr. 362, 754 P.2d 708; L.I.F.E. Committee v. City of Lodi (1989) 213 Cal.App.3d 1139, 262 Cal.Rptr. 166) or in the disposition of the case. (Garat v. City of Riverside (1991) 2 Cal.App.4th 259, 3 Cal.Rptr.2d 504; Building Industry Assoc. v. Superior Court (1989) 211 Cal.App.3d 277, 259 Cal.Rptr. 325; Lee v. City of Monterey Park (1985) 173 Cal.App.3d 798, 219 Cal.Rptr. 309.) ¹ The attorney general reached the same conclusion in a published opinion. (66 Ops.Cal.Atty.Gen. 258 (1983).)

While the Supreme Court has addressed the precise issue only in dicta, it held in Yost v. Thomas (1984) 36 Cal.3d 561, 205 Cal.Rptr. 801, 685 P.2d 1152, that an amendment to a general plan is subject to referendum. (Accord: O'Loane v. O'Rourke (1965) 231 Cal.App.2d 774, 42 Cal.Rptr. 283; Midway Orchards v. County of Butte (1990) 220 Cal.App.3d 765, 269 Cal.Rptr. 796; cf. Lee v. City of Lompoc (1993) 14 Cal.App.4th 1515, 18 Cal.Rptr.2d 389 [special election].) We see no warrant in constitutional language or precedent for distinguishing this precedent. "There is no textual basis for construing the power of referendum as broader than the initiative power, or vice versa." (Save Stanislaus Area Farm Economy v. Board of Supervisors, supra, 13 Cal.App.4th at p. 152, fn. 3, 16 Cal.Rptr.2d 408.) The courts have always regarded the initiative and referendum powers as being coextensive. An early precedent, Dwyer v. City Council (1927) 200 Cal. 505, 511, 253 P. 932, states, " 'if the right of referendum can be invoked, the corollary right to initiate legislation must be conceded to exist.' " (Quoted in Associated Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, 595, 135 Cal.Rptr. 41, 557 P.2d 473.)

Similarly, the Supreme Court upheld in Associated Home Builders etc., Inc. v. City of Livermore, supra, 18 Cal.3d 582, 135 Cal.Rptr. 41, 557 P.2d 473 the power of local electorate to adopt zoning ordinances by initiative. We see no plausible basis for distinguishing amendments to zoning ordinances and amendments to the general plan. Both are forms of local legislation (Gov.Code § 65301.5), ² subject to similar statutory procedures in general law cities and counties (compare: §§ 65350 through 65361 and §§ 65850 through 65863.9), which may have either a local or regional impact. (See Associated Home Builders etc., Inc. v. City of Livermore, supra 18 Cal.3d at 607, 135 Cal.Rptr. 41, 557 P.2d 473.) Both have the same function as land use controls in general law cities and counties. Amendments to the Planning and Zoning Law in 1971 and 1974 elevated the general plan to the status of " 'the basic land-use charter governing the direction of future land use in the local jurisdiction.' " (Save Stanislaus Area Farm Economy v. Board of Supervisors, supra, 13 Cal.App.4th at p. 145, fn. 2, 16 Cal.Rptr.2d 408.) Zoning ordinances must be consistent with the general plan and serve only to implement prior land use decisions reflected in the general plan. (§ 65860.)

Appellants pursue this appeal in reliance on dicta in Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, 539, 277 Cal.Rptr. 1, 802 P.2d 317 (hereafter Lesher ), noting that the Supreme court "has never considered whether a general plan may be adopted or amended by initiative." In that case, several amici curiae argued that the Planning and Zoning Law preempts the local initiative power with respect to general plans. The Supreme Court did not reach the issue because it concluded that the measure at issue did not constitute a general plan amendment. Appellants view the Lesher dicta as opening for reconsideration the issue raised in this appeal. As a court of appeal, we remain bound to affirm the trial court's decision under authority we have reviewed, but the Lesher dicta does suggest the need for a careful analysis of the issue, going beyond simple application of the principles of stare decisis.

Like the amici curiae in Lesher, appellants rely on the rule that "[m]atters of statewide concern, delegated to local governments by the Legislature, are not subject to the initiative or referendum at the local level." (7 Witkin, Summary of Cal. Law (9th ed. 1988) Constitutional Law, § 124, p. 179; Reagan v. City of Sausalito (1962) 210 Cal.App.2d 618, 624-625, 26 Cal.Rptr. 775.) As explained in Committee of Seven Thousand v. Superior Court, supra, 45 Cal.3d at p. 511, 247 Cal.Rptr. 362, 754 P.2d 708, "[i]n matters of statewide concern, the state may if it chooses preempt the entire field to the exclusion of all local control. If the state chooses instead to grant some measure of local control and autonomy, it has authority to impose procedural restrictions on the exercise of the power granted, including the authority to bar the exercise of the initiative and referendum."

In concept, the existence of a statewide concern is a threshold question which might be analyzed before addressing the issue of statutory delegation. But the present case does not permit any sweeping classification going beyond the precise context of a particular statute; the general plan is a comprehensive document that overlaps the categories of statewide or local concern.

Section 65301, subdivision (c), provides that the general plan shall address seven...