Patterson v. Tehama County

Decision Date29 August 1986
Citation184 Cal.App.3d 1546,229 Cal.Rptr. 696
CourtCalifornia Court of Appeals Court of Appeals
PartiesPreviously published at 184 Cal.App.3d 1546 184 Cal.App.3d 1546 Shan PATTERSON et al., Plaintiffs and Respondents, v. COUNTY OF TEHAMA et al., Defendants and Respondents, Nancy Trent et al., Interveners and Appellants. Civ. 23162.

Ronald A. Zumbrun, Darlene E. Ruiz, Robert K. Best, and Thomas W. Birmingham, Sacramento, for interveners and appellants.

Berliner & Spiller, Harold A. Berliner and Steven T. Spiller, Nevada City, for plaintiffs and respondents.

John K. Van de Kamp, Atty. Gen., Andrea Sheridan Ordin and Theodora Berger, Asst. Attys. Gen., and David W. Hamilton, Deputy Atty. Gen., as amici curiae on behalf of plaintiffs and respondents.

James P. Lang, Dist. Atty., and Nelson D. Buck Asst. Dist. Atty., for defendants and respondents.

SIMS, Associate Justice.

This lawsuit presents a facial challenge to the constitutionality of a county ordinance enacted by initiative. The ordinance purports to limit governmental authority to regulate the use of privately owned real property. For reasons that follow, we determine that certain provisions of the ordinance conflict with general law in violation of Article XI, section 7, of the California Constitution 1 and are therefore invalid. Other provisions of the ordinance do not conflict with general law and remain enforceable.


In June 1982, seven citizens of Tehama County caused to be published a "Notice of Intention to Circulate County Initiative Petition." (Elec.Code, § 3702.) The ordinance proposed by the initiative, entitled "Landowners Bill of Rights," provided as follows:

"(1) No public entity shall impose any restrictions as to the use of privately owned real property, except as set forth herein.

"(2) No public entity shall impose any requirements or specifications as to private roads.

"(3) No public entity shall require the owners of adjacent privately owned real property to repair, build, maintain, broaden or donate land for public roads.

"(4) No public entity shall impose any requirements or specifications as to type or size of housing or other buildings to be constructed on privately owned real property.

"(5) No public entity shall restrict any commercial business as to size or location within the County of Tehama, nor shall any public entity place any requirements as to access on any commercial business.

"(6) No public entity shall impose requirements or specifications as to size, shape or fencing to be required as a condition for development or obtaining any permit.

"(7) No public entity shall impose any restriction upon the use of privately owned real property by declaring said property to be a historical site, an archaeological site, or open space unless the owner or owners of said property are justly compensated for the diminution in the value of said property caused by the restrictions so imposed.

"(8) No public entity may impose any restriction upon any use of privately owned real property which exists at the time of passage of this ordinance.

"(9) A public entity may require a public hearing as to land use related matters only when the location of a subdivision or a commercial manufacturing facility is to be considered. When application is made to a public entity for establishment of a subdivision or placement of a commercial manufacturing facility, said entity shall give notice of said application by publication in a newspaper of general circulation within the proposed location, stating that such application has been made, and stating that if no objection to said application has been made and stating that if no objection to said application be received [sic ] from a resident of the immediate vicinity of said location, within 30 days, said application will be granted. Should objection be received from a resident of the immediate vicinity of said proposed location, a public hearing shall be held within 60 days of filing complaint, as to the location of said subdivision or commercial manufacturing facility.

"(10) No public entity shall consider either soil type or parcel size as a factor in determining whether a subdivision of land shall be accepted.

"(11) No public entity shall impose any restriction upon the rights of the owner of privately owned real property to surface water, percolating water or underground water appurtenant thereto. The metering of private water wells by any public entity is specifically prohibited.

"(12) No part of this ordinance may be amended except by majority vote of the qualified electors of Tehama County.

"(13) If any section, part, clause or phrase hereof is for any reason held to be unconstitutional, the remaining sections shall not be affected, but will remain in full force and effect.

"(14) As used herein, the word 'shall' is mandatory, and the word 'may' is permissive.

"(15) Should any provision of this ordinance be contrary to, or in any way inconsistent with, existing laws, ordinances, regulations or procedures, the provisions of this ordinance shall preempt such laws, ordinances, regulations or procedures."

The proponents of the initiative also caused to be published a statement of reasons in support of the initiative. (See Elec.Code, § 3702, subd. (a).) It provided:

"The reasons for the proposed petition are as follows:

" 'The right to acquire and own property and to deal with it and use it as the owner chooses, so long as the use harms nobody, is a natural right. It does not owe its origin to constitutions. It existed before them. It is a part of the citizen's natural liberty, a right to which the police power is subordinated.

" 'Because these rights and privileges have been violated by the Tehama County governing body through planning, decisions and other official acts, we the undersigned intend to restore the above rights and privileges to all citizens of Tehama County.

" 'Through the passage of the Landowners' Bill of Rights, it is our intention to limit the power of public entities to restrict the use of privately owned real property. Landowners will again be free of unwarranted restrictions on private roads, construction of buildings, fences, commercial development, subdivision of parcels and other uses of private property. Metering of private wells will be prohibited, and public entities will not be able to effectively destroy the value of property through zoning.[']

"Our voices have been raised in the past, but have not been heeded. We feel that the initiative process, which is available to us under California Law, is the remedy which remains to enable us to win back our freedom to enjoy private property rights."

The ordinance was ultimately submitted to the voters on the November 1982 ballot. The ballot argument in support of the initiative provided:


"Re-affirm the citizens inalienable right to acquire, own and protect property.

"This is the basic driving force behind this initiative.

"Allow for accomplishment of individual goals.

"Encourage innovation and advancement in land use methods.

"Permit supply and demand to allocate the distribution of land resources.

"Economics is the most honest regulator of land use.

"Acknowledge where land can sustain the costs of agricultural production, then and only then, will this use perservere.

"Return to property owners their precious rights that have been stripped from them for the sake of easier enforcement of land regulations.

"Expose the fallacy of governmentally dictated land use control. The current County plan has been declared a failure by the very governmental body that created it. Truthfully, land use planning is the sum of all the individual plans of property owners and would be property owners. To think that any public body is wise enough to gather all this thinking and draft it into a set of regulations is not rational. The results can only be regulations that implement what the regulators believe to be best.

"Reduce the burden of the people upon their government and to a greater extent, reduce the burden of government upon ourselves.

"Reduce the chance for favoritism and opportunity for those in political power to take advantage of their positions.

"Recognize that productivity from a parcel of land is not related to its size. Productivity is governed by investment and management.

"Secure stability in land use classification.



On November 2, 1982, the voters of Tehama County adopted the ordinance. Thereafter in the capacity of individual citizens and taxpayers residing within the county, plaintiffs challenged the constitutionality of the ordinance by bringing suit against the county and its official representatives. Plaintiffs sought declaratory and injunctive relief, as well as a writ of mandate compelling county officials to perform duties imposed by state law without regard to the provisions of the ordinance. Apparently concurring with the opinion of its legal counsel that the ordinance is unconstitutional, the county elected not to contest the lawsuit and stipulated to the entry of judgment in favor of plaintiffs.

Responding to notice of the intended judgment served upon them by order of court, several county residents intervened in support of the ordinance before judgment became final. The cause then proceeded to trial after which the court rendered judgment declaring the ordinance unlawful on the ground the term "public entity" in the ordinance applied to the state of California so that the ordinance purported to abrogate state laws. The court issued a peremptory writ of mandate as prayed.

Interveners appeal from the judgment. On appeal, the Attorney General, appearing as amicus curiae, has submitted a brief and argued orally in...

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