In a much anticipated ruling with statewide impact on land use planning, a sharply divided Supreme Court upheld the validity of Napa County's Measure J in Devita v. County of Napa (March 5, 1995) (95 C.D.O.S. 1736). 

In a 5-2 vote issued on March 6, 1995, the Supreme Court held that State planning law does not prevent local voters from amending the land use element of a general plan through the initiative process. The ruling also specifically upheld the right of Napa's voters to impose a 30-year freeze on further amendments to the general plan absent a voter approval. 

In November 1990, Napa County voters approved Measure J. By its terms, the initiative confirmed and readopted, until the year 2021, existing portions of the land use elements of the general plan for the purpose of preserving agricultural land and open space. Measure J also readopted general plan policies regarding minimum parcel size and maximum building densities. Finally, Measure J locks in place its provisions through the year 2020 absent a vote of the people, subject to limited exceptions.

The Court Majority acknowledged that the Legislature has the power to preempt general plan amendment initiatives. Preemption will be found, however, only (1) if there exists statutory language which confers local control over planning to the "local legislative body" as distinct from the voters, or (2) if there is a finding that the planning process is of statewide concern and, thus, not subject to local initiatives.

In reliance on an obscure elections code provision (Election Code section 9111), the Majority found that it "specifically recognizes that general plans can be amended by initiative." Section 9111 provides that a board of supervisors may refer proposed initiative measures to any county agency for a report on the proposed initiative's "effect on the internal consistency of the county's general and specific plans. . . ." Based on above, the Majority bridges a chasm and concludes that "[i]nitiatives that affect 'internal consistency of the general plan' must be those that amend the general plan."

Based on its historical review of land use planning, the Majority further holds that the amendment of a general plan "is primarily a matter of local concern and therefore not one the Legislature can be supposed to have delegated exclusively to the local governing body." The comprehensive statutory planning law as set out in Government Code sections 65100-65763 does not preempt general plan amendment initiatives. The Government Code which sets minimum requirements of comprehensiveness and consistency among general plan elements, according to the Majority, merely constitute "minimal requirements" which do not otherwise affect "what remains essentially locally determined land use decisions." In addition, the general plan's procedural requirements, such as noticed public hearings and environmental review process, are not applicable to initiatives. In what the Dissent characterized as arranging facts to fit their theory, the Majority reasoned that "[w]hen the people exercise their right of initiative, then public input occurs in the act of proposing and circulating the initiative itself, and at the ballot box" and, further, an "abbreviated environmental review" is still possible during an election campaign. (No doubt resulting in competing environemental reviews funded by the competing campaign committees).

Calling the Majority's opinion "fundamentally misplaced" the Dissent pointed to numerous flaws in reasoning and the practical problems caused by its decision.

Elections Code section 9111 is merely "a notice provision aimed at providing the board of supervisors with information to better deal with proposed initiatives." The Dissent argues that it was designed to enhance the response capabilities of the local legislative body rather than to define the scope of the initiative power.

The Dissent further points out that the initiative process is incapable of ensuring the required public input during the formative stages of general plan development. Contrary to the Majority's quixotic view of the initiative process, the Dissent notes that initiatives may be drafted by as few as one special interest group and "offered to the public on a take-it-or-leave-it basis and cannot be altered, amended or fine-tuned. Initiatives can not achieve, in short, the fundamental legislative goal of a comprehensive blueprint for physical development formulated through widespread community involvement."

The initiative process also injects into the planning process an element of rigidity that, according to the Dissent, "defeats the statutory requirement of periodic review and revision to achieve the Legislature's goal of an integrated, internally consistent general plan."

The Dissent further points out flaws in the Majority's conclusion that the general plan process is merely a local concern. Land use planning is a matter of statewide concern to "ensure orderly growth throughout the state." The local planning process, including the general plan, must proceed "within the framework of officially approved statewide goals and policies." 

In addition, planning law mandates that local planning agencies take into account regional concerns and consult with regional and state agencies. Initiatives such as Measure J significantly hamper the local agencies' ability to comply with these mandates.

Finally, the Dissent notes that "interrelationships and regional interests are instinct in every element of the general plan." Measure J provides a "classic illustration" of the "profound regional ramifications" of amending one element of a general plan. When the land use element is locked in place by initiative, it affects population densities and building intensity, which in turn influence transportation, environmental, safety, housing, and aesthetic interests. The result is a splintering of the planning process.

By placing the land use element under voter control, the Supreme Court invites a fragmented planning process, subject to further court intervention:

1. The Housing Element Is Not Subject To Initiative -- Yet . Buried in a footnote, the Majority notes that the Housing Element must be amended according to a fixed schedule -- every five years -- and submitted to a State agency for review and comment. Since Measure J did not amend or conflict with the Housing Element, the Court chose not to decide the validity of such an initiative. 

2. Initiative Process Is Not Subject To Environmental Review -- Yet

General plan amendments are clearly subject to environmental review. CEQA guidlines, however, specifically exempt initiatives from review. The Majority, nevertheless, suggests that the board of supervisor may conduct a limited environmental review "within the time requirements of the initiative process." The obvious real life questions raised by this result are obvious: What , as a practical matter, can be accomplished within such a short time span? If a proposed initiative is found to violate CEQA, then what? The Court left the answers to these questions to future legistlative action.

3. The Court Retains Jurisdiction To Review Amendments By Initiative. The Court concedes that Napa County's General Plan, as a result of Measure J, may fall so far behind changing conditions that the County will fail to fulfill its statutory duty to keep the plan current. Further, proposed modifications submitted to the electorate as required under Measure J may be defeated. In response, the Court states that when faced with "persistent refusal" by voters to update its general plan, the courts may be asked to "intervene and correct the deficiencies."

The immediate effect of the Court's decision, which is already being seen, is that proposed development in Napa County will be submitted directly to the electorate for approval, thus, replacing the planning process with the political process. Over the longer term, many other questions and practical problems raised by the Court have been left to the Legislature to eventually address -- once it moves beyond fighting about the Speakership and office spaces.

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