Plaintiffs and Appellants,
Plaintiffs and Appellants,
Michal D. McCracken, Foster City, for plaintiff and appellant San Mateo Coastal Landowners.
Michael P. Murphy, Redwood City, for defendant and respondent County of San Mateo.
William Curtiss, San Francisco, for intervener and respondent Sierra Club.
Joseph Rusconi, Oakland, for defendant and respondent California
KLINE, Presiding Justice.
In November 1986, San Mateo County voters enacted Measure A, "The Coastal Protection Initiative," amending the county's Local Coastal Program, making further amendments to the Local Coastal Program essentially conditional upon voter approval (with limited exceptions) and providing that the County Board of Supervisors, by a fifths majority, may submit proposed amendments to the voters.
Appellant coastal landowners and nonprofit organizations representing coastal landowners, farmers, and others allege Measure A is subject to numerous constitutional and statutory defects. However, at the core of their challenge are the dual contentions that Measure A(1) deals with a matter of statewide concern and therefore may not properly be the subject of a local initiative, and (2) conflicts with the Coastal Act in that it frustrates a legislatively designed regulatory scheme of public hearings, public participation, and consultation between local agencies and the California Coastal Commission. The recent California Supreme Court opinion in DeVita v. County of Napa (1995) 9 Cal.4th 763, 38 Cal.Rptr.2d 699, 889 P.2d 1019 and Yost v. Thomas (1984) 36 Cal.3d 561, 205 Cal.Rptr. 801, 685 P.2d 1152 undermine both contentions. We shall reject these and the other challenges to Measure A raised by appellants and shall affirm the judgment of the trial court, denying appellants' petition for writ of mandate. (Code Civ.Proc., s 1085.)
San Mateo County voters adopted Measure A on November 4, 1986.
The initiative amended the San Mateo County Local Coastal Program
(LCP), which had originally been adopted in 1980 under authority
of the California Coastal Act. (Pub.Resources Code, s 30000 et
seq.) With limited exceptions, Measure A did not alter the substance
of the 1980 LCP. Rather, Measure A identified thirty-seven existing
LCP land use policies and provided they could not be weakened
(that is no increase in non-agricultural development, density
or use would be permitted) by amendment, absent a vote of the
people. Section 10 of Measure A provides that it "may be
repealed or amended only by a majority of the voters of San Mateo
County voting in a valid election. The Board of Supervisors may,
by four-fifths vote, after consideration by the County Planning
Commission, submit proposed amendments to the voters." (Measure
A, s 10, subd. (a).) [FN1] On December 10, 1987, the Commission
approved, subject to modifications, four of the amendments submitted
as part of the Measure A package and approved the remaining 49
amendments as submitted. The board of supervisors accepted two
of the modifications and resubmitted the remaining two. The Commission
certified these two Measure A amendments as being consistent with
the Coastal Act on March 22, 1988.
FN1. Section 10, subdivision (b) of Measure A excepts
from the voter approval requirement amendments of the LCP with
respect to Farm Labor Housing Areas.
On March 20, 1987 San Mateo County Coastal Landowners' Association (SAMCOLA), a Californian nonprofit mutual benefit corporation, San Mateo County Farm Bureau, a California nonprofit corporation, and Citizens for Responsible Planning, a California nonprofit mutual benefit corporation (hereafter collectively "appellants"), filed a petition for writ of ordinary mandamus (Code Civ.Proc., s 1085) and complaint for declaratory relief against respondent County of San Mateo seeking a declaratory judgment that Measure A was invalid and a writ of mandate and prohibition commanding the County to cease enforcing it. (Superior Court No. 316851.)
The County answered and Sierra Club, Natural Resources Defense Council, Inc., Save Our Coast Committee, Committee for Green Foothills, League for Coastal Protection and Robert Cevasco (hereafter collectively "Intervenors") intervened to join with the County in opposing appellants' claims.
Subsequently, appellants, joined by plaintiff John L. De Benedetti, Jr., a coastal zone landowner, filed a second action seeking a writ of mandamus and declaratory relief against the County and the Commission. (Superior Court No. 329349.) On January 9, 1990, appellants filed an amended petition and complaint in that action.
On March 23, 1990, both actions (Nos. 316851 and 329349) were consolidated for trial. Intervenors intervened in the consolidated action. The County, the Coastal Commission, and Intervenors filed answers.
In May 1991, the County and the Coastal Commission filed motions for summary adjudication and Intervenors moved for judgment on the pleadings.
On July 26, 1991, the trial court granted in part and denied in part the motions of the County and Commission for summary adjudication of issues.
The remaining causes of action were tried to the court and its judgment was entered on July 16, 1992.
This timely appeal followed.
A. The Coastal Act.
In Yost v. Thomas, supra, 36 Cal.3d 561, 565-567, 205 Cal.Rptr. 801, 685 P.2d 1152 (Yost ), our Supreme Court described in some detail the Coastal Act and the respective roles of local government and the Coastal Commission in the preparation and certification of the LCP:
"The Coastal Act of 1976 (Pub.Resources Code, s 30000 et
seq.) [ [FN2]] was enacted by the Legislature as a comprehensive
scheme to govern land use planning for the entire coastal zone
of California. The Legislature found that 'the California coastal
zone is a distinct and valuable natural resource of vital and
enduring interest to all the people'; that 'the permanent protection
of the state's natural and scenic resources is a paramount concern';
that 'it is necessary to protect the ecological balance of the
coastal zone' and that 'existing developed uses, and future developments
that are carefully planned and developed consistent with the policies
of this division, are essential to the economic and social well-being
of the people of this state....' (s 30001, subds. (a) and (d)).
'[T]he basic goals of the state for the coastal zone' are to:
'(a) Protect, maintain, and, where feasible, enhance and restore
the overall quality of the coastal zone environment and its natural
and manmade resources. [P] (b) Assure orderly, balanced utilization
and conservation of coastal zone resources taking into account
the social and economic needs of the people of the state. [P]
(c) Maximize public access to and along the coast and maximize
public recreational opportunities in the coastal zone consistent
with sound resources conservation principles and constitutionally
protected rights of property owners. [P] (d) Assure priority
for coastal-dependent and coastal-related development over other
development on the coast. [P] [and] (e) Encourage state and local
initiatives and cooperation in preparing procedures to implement
coordinated planning and development for mutually beneficial uses,
including educational uses, in the coastal zone.' (s 30001.5.)
FN2. "All statutory references, unless otherwise
indicated, are to the Public Resources Code. All statutory language
is from those statutes in effect at the time of the trial court
decision." (Yost, supra, at p. 565, fn. 3, 205 Cal.Rptr.
801, 685 P.2d 1152.)
"A combination of local land use planning procedures and enforcement to achieve maximum responsiveness to local conditions, accountability, and public accessibility, as well as continued state coastal planning and management through a state coastal commission are relied upon to insure conformity with the provisions of the act (s 30004, subds. (a) and (b)). Therefore, all local governments lying in whole or in part within the coastal zone had to prepare and submit to the Commission a local coastal program (LCP) (s 30500, subd. (a)). The LCP consists of a local government's '(a) land use plans, (b) zoning ordinances, (c) zoning district maps, and (d) within sensitive coastal resources areas, other implementing actions,...' (s 30108.6.) The precise content of each LCP is determined by the local government in full consultation with the Commission (s 30500, subd. (c)) and must meet the requirements of, and implement the provisions and policies of [the act] at the local level (s 30108.6).
"Sections 30200 et seq. set forth the specific policies which constitute the standards by which the adequacy of local coastal programs are to be determined (s 30200)....
"The LCP may be submitted to the Commission all at once
or in two phases--a land use plan (LUP) and zoning ordinances,
etc. (s 30511).[ [FN3]] The Commission will certify a LUP 'if
it finds that a land use plan meets the requirements of, and is
in conformity with, the policies of Chapter 3 (commencing with
Section 30200)....' (s 30512, subd. (c).) 'The commission shall
require conformance with the policies and requirements of Chapter
3 ... only to the extent necessary to achieve the basic goals
[of the act].' (s 30512.2.) The Commission may only reject zoning
ordinances on the grounds that they do not conform, or are inadequate
to carry out the provisions of the certified land use plan (s
30513). A certified LCP and all local implementing ordinances
may be amended by a local government, but no such amendment shall
take effect until it has been certified by the Commission (s 30514)."
FN3. The land use plan portion of the LCP is part of the
San Mateo County General Plan. Implementing ordinances are part
of the County's zoning regulations. (Trial testimony of Mark
Duino, Principal Planner of the San Mateo County Planning Department).
B. DeVita validates adoption of Measure A through the initiative process.
Yost, supra, 36 Cal.3d 561, 205 Cal.Rptr. 801, 685 P.2d 1152 upheld the use of a referendum to overturn a general plan amendment implementing a local coastal plan under the Coastal Act. Yost held that general plan amendments were legislative acts subject to referendum. (36 Cal.3d at p. 570, 205 Cal.Rptr. 801, 685 P.2d 1152; see DeVita v. County of Napa, supra, 9 Cal.4th 763, 775, 38 Cal.Rptr.2d 699, 889 P.2d 1019.) Yost "further found that the Coastal Act, although setting 'minimum standards and policies' for localities to follow in developing land-use plans, left 'wide discretion to a local government ... to determine the contents' of such plans, and therefore did not preclude general plan amendments implementing a local coastal plan from being subject to referendum. ([Yost, supra, 36 Cal.3d] at pp. 572-573, 205 Cal.Rptr. 801, 685 P.2d 1152.)" (DeVita v. County of Napa, supra, 9 Cal.4th 763, 775, 38 Cal.Rptr.2d 699, 889 P.2d 1019.)
Although holding a general plan amendment implementing an LCP could be subject to referendum, Yost did not determine whether such amendment could be enacted by initiative. (Id. at p. 573-574, 205 Cal.Rptr. 801, 685 P.2d 1152.) Thereafter, Committee of Seven Thousand v. Superior Court (1988) 45 Cal.3d 491, 504, 247 Cal.Rptr. 362, 754 P.2d 708 "endorsed the position that general plans can be amended by initiative" (DeVita v. County of Napa, supra, 9 Cal.4th 763, 775, 38 Cal.Rptr.2d 699, 889 P.2d 1019); however in Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, 540, 277 Cal.Rptr. 1, 802 P.2d 317 the court noted several arguments against general plan amendment initiatives and implicitly invited reconsideration of the issue.
Recently, this question was resolved by DeVita v. County of Napa,
supra, 9 Cal.4th 763, 38 Cal.Rptr.2d 699, 889 P.2d 1019 (DeVita
), which held the land use element of a county's general plan
can be amended by initiative and upheld provisions of an initiative
measure making redesignation of existing agricultural land and
open space essentially conditional on voter approval for thirty
years. (Id. at pp. 770-771, 38 Cal.Rptr.2d 699, 889 P.2d 1019.)
FN4. DeVita reasoned: "Those courts that have examined
the planning law have concluded that '[t]he adoption and amendment
of a general plan is a local legislative matter and not of statewide
concern,' and therefore the proper subject of initiative. [Citations.]
This generally accepted principle was set forth in an opinion
of the Attorney General in 1983: 'A ... general plan may be amended
by the initiative process, but such amendment must comply with
the substantive requirements for a general plan.' (66 Ops.Cal.Atty.Gen.
258, 259 (1983).) [P] The correctness of the Attorney General's
view seemed confirmed by our own opinion the following year in
Yost, supra, 36 Cal.3d 561, 205 Cal.Rptr. 801, 685 P.2d 1152,
upholding the use of referendum to overturn a general plan amendment
implementing a local coastal plan under the Coastal Act of 1976
(Coastal Act) (Pub.Resources Code, s 30000 et seq.). We held
that general plan amendments were legislative acts subject to
referendum. (36 Cal.3d at p. 570, 205 Cal.Rptr. 801, 685 P.2d
1152.) We further found that the Coastal Act, although setting
'minimum standards and policies' for localities to follow in developing
land-use plans, left 'wide discretion to a local government ...
to determine the contents' of such plans, and therefore did not
preclude general plan amendments implementing a local coastal
plan from being subject to referendum. (Id. at pp. 572- 573,
205 Cal.Rptr. 801, 685 P.2d 1152.)" (DeVita supra, 9 Cal.4th
at pp. 774-775, 38 Cal.Rptr.2d 699, 889 P.2d 1019.)
Although appellants maintain DeVita does not resolve their central claims--that an LCP may not be amended by initiative and that Measure A itself and the procedures it establishes for future amendment of the LCP conflict with Coastal Act provisions mandating "full consultation" and "public participation" in the LCP amendment process--we believe DeVita is dispositive, as it undermines the foundation of appellants' argument.
The land-use-plan portion of a county's local coastal program
is part of its general plan. (See, ss 30108.5, 30108.6.) [FN5]
By definition, the local coastal program amendments at issue
here fall squarely within the holding of DeVita. Further, DeVita's
extensive reliance upon Yost, without limiting language, demonstrates
that LCP amendments are analogous to general plan amendments as
local legislative acts subject to initiative and that local governments
have broad discretion to determine the content of their land use
FN5. As earlier noted, the Coastal Act provides that a
"local coastal program" is comprised of the "local
government's (a) land use plans, (b) zoning ordinances, (c) zoning
district maps, and (d) within sensitive coastal resources areas,
other implementing actions which, when taken together, meet the
requirements of, and implement the provisions and policies of,
this division at the local level." (s 30108.6.) A "land
use plan" is defined as "the relevant portions of a
local government's general plan ... which are sufficiently detailed
to include the kind, location, and intensity of land uses, the
applicable resource protection and development policies and, where
necessary, a listing of implementing actions." (s 30108.5,
DeVita recognized "that the local electorate's right to
initiative and referendum is guaranteed by the California Constitution,
article II, section 11, [ [FN6]] and is generally coextensive
with the legislative power of the local governing body. [Citation.]"
[FN7] (DeVita, supra, at p. 775, 38 Cal.Rptr.2d 699, 889 P.2d
1019.) Absent a clear showing of contrary legislative intent,
it is presumed that legislative decisions of a city council or
board of supervisors are subject to initiative and referendum.
FN6. "California Constitution, article II, section
11 provides: 'Initiative and referendum powers may be exercised
by the electors of each city and county under procedures that
the Legislature shall provide. This section does not affect a
city having a charter.' "
FN7. " '[W]e will presume, absent a clear showing
of the Legislature's intent to the contrary, that legislative
decisions of a city council or board of supervisors ... are subject
to initiative and referendum.' This presumption rests on the
fact that the 1911 amendment to the California Constitution conferring
the right of initiative and referendum was '[d]rafted in light
of the theory that all power of government ultimately resides
in the people' and that 'the amendment speaks of initiative and
referendum, not as a right granted the people, but as a power
reserved by them.' (Associated Home Builders, supra, 18 Cal.3d
582, 591 [135 Cal.Rptr. 41, 557 P.2d 473] fn. omitted.) It is
"the duty of the courts to jealously guard this right of
the people" [citation].... "[I]t has long been our
judicial policy to apply a liberal construction to this power
wherever it is challenged in order that the right [to local initiative
or referendum] be not improperly annulled." (Ibid.)"
(DeVita, supra, at pp. 775-776, 38 Cal.Rptr.2d 699, 889 P.2d
Pointing to Yost as an example, DeVita reaffirmed that a statutory scheme does not restrict the power of initiative or referendum merely because some elements of statewide concern are present. (Id. at pp. 780-781, 38 Cal.Rptr.2d 699, 889 P.2d 1019.) Acknowledging that the Coastal Act addressed in Yost established "a regime of state regulation more intrusive than the planning law" (id., at p. 781, 38 Cal.Rptr.2d 699, 889 P.2d 1019), DeVita relied upon the holding and analysis of Yost: "In affirming the validity of the referendum, we stated: 'There is no doubt that the Coastal Act is an attempt to deal with coastal land use on a statewide basis. Nor is it disputed that in matters of general statewide concern the state may preempt local regulation [citation]. However, state regulation of a matter does not necessarily preempt the power of local voters to act through initiative and/or referendum [citations].' (36 Cal.3d at p. 571, 205 Cal.Rptr. 801, 685 P.2d 1152; [citations].) As our decision in Yost illustrates, it is erroneous to assume that a statute or statutory scheme that both asserts certain state interests and defers in other respects to local decisionmaking implies a legislative intent to bar the right of initiative. Rather, courts must inquire concretely into the nature of the state's regulatory interests to determine if they are fundamentally incompatible with the exercise of the right of initiative or referendum, or otherwise reveal a legislative intent to exclusively delegate authority to the local governing body." (Id. at p. 781, 38 Cal.Rptr.2d 699, 889 P.2d 1019.)
As explained in Yost, the Coastal Act "does not explicitly claim to preempt local planning authority...." (36 Cal.3d at p. 571, 205 Cal.Rptr. 801, 685 P.2d 1152.) Examination of the general provisions of the Coastal Act led Yost to conclude that the local government retained wide discretion to determine both the contents of its land use plans and how to implement them. (Id. at pp. 571-573, 205 Cal.Rptr. 801, 685 P.2d 1152.)
"The wording of these and other sections do not suggest
preemption of local planning by the state, rather they point to
local discretion and autonomy in planning subject to review for
conformity to statewide standards. As was noted in City of Chula
Vista v. Superior Court (1982) 133 Cal.App.3d 472, 488 [183 Cal.Rptr.
909], ..., 'the Commission in approving or disapproving an LCP
does not create or originate any land use rules and regulations.
It can approve or disapprove but it cannot itself draft any part
of the coastal plan.' [ [FN8]] ... Under the act, local governments,
therefore, have discretion to zone one piece of land to fit any
of the acceptable uses under the policies of the act, but they
also have the discretion to be more restrictive than the act.
The Coastal Act sets minimum standards and policies with which
local governments within the coastal zone must comply; it does
not mandate the action to be taken by a local government in implementing
local land use controls. The Commission performs a judicial function
when it reviews a local government's LCP--it determines whether
the LCP meets the minimum standards of the act (City of Chula
Vista v. Superior Court, supra, 133 Cal.App.3d 472, 488 [183 Cal.Rptr.
909] ), but once an LCP has been approved by the Commission, a
local government has discretion to choose what action to take
to implement its LCP: it can decide to be more restrictive with
respect to any parcel of land, provided such restrictions do not
conflict with the act." (Yost, at pp. 572-573, 205 Cal.Rptr.
801, 685 P.2d 1152. fn. omitted.)
FN8. "The discretion accorded local governments in
establishing, creating and implementing land use plans is most
clearly reflected in the language of section 30005. 'No provision
of this division is a limitation on any of the following: [P]
(a) Except as otherwise limited by state law, on the power of
a city or county or city and county to adopt and enforce additional
regulations, not in conflict with this act, imposing further conditions,
restrictions, or limitations with respect to any land or water
use or other activity which might adversely affect the resources
of the coastal zone.' (s 30005, subd. (a).)" (Yost, at
p. 572, 205 Cal.Rptr. 801, 685 P.2d 1152.)
"The act, therefore, leaves wide discretion to a local government not only to determine the contents of its land use plans, but to choose how to implement these plans. Under such circumstances a city is acting legislatively and its actions are subject to the normal referendum procedure." (Yost, at p. 573, 205 Cal.Rptr. 801, 685 P.2d 1152.)
Taken together, Yost and DeVita leave no doubt that amendments to the LCP, such as measure A, may be adopted by initiative and are not preempted by the Coastal Act.
C. Measure A does not conflict with the Coastal Act. [FN9]
FN9. The Commission determined that Measure A amendments
to the LCP were consistent with the Coastal Act. We agree with
the Commission that insofar as appellants claim Measure A's adoption
or its provisions conflict with the Coastal Act, such challenge
should have been brought in an action for a writ of administrative
mandamus pursuant to Code of Civil Procedure section 1094.5. The
Commission is the sole agency with statutory authority to review
LCP submittals for consistency with the Coastal Act. (s 30500,
et seq.) In so doing, the Commission acts in a quasi-judicial
capacity. (Eg., City of Chula Vista v. Superior Court (1982)
133 Cal.App.3d 472, 488, 183 Cal.Rptr. 909; State of California
v. Superior Court (Veta) 1974) 12 Cal.3d 237, 249, 115 Cal.Rptr.
497, 524 P.2d 1281; see Sierra Club v. California Coastal Com.
(1993) 12 Cal.App.4th 602, 609, 15 Cal.Rptr.2d 779.) Consequently,
challenge to the Commission's actions in LCP certification decisions
is through administrative mandate. Appellants did not pursue a
petition for writ of administrative mandamus. Nor do they contend
that the voluminous administrative record of the Measure A certification
process does not support the Commission's certification of Measure
A as consistent with the Coastal Act. Appellants' claim that
Measure A conflicts with the consultation and participation requirements
of the Coastal Act is, however, intertwined with their contentions
that an LCP amendment is not properly the subject of initiative
and that Measure A was preempted by the Coastal Act. Because
it is difficult to separate these issues, we shall review this
claim despite appellant's failure to advance it by way of an appropriate
Appellants further contend that Measure A conflicts with provisions
of the Coastal Act which require the local agency to establish
"the precise content" of the LCP amendment in
"full consultation" with the Commission and with "full
public participation." (s 30500, subd. (c); see s 30503)
FN10. Section 30500, subdivision (c) provides: "The
precise content of each local coastal program shall be determined
by the local government, consistent with Section 30501, in full
consultation with the commission and with full public participation."
Section 30503 provides: "During the preparation, approval,
certification, and amendment of any local coastal program, the
public, as well as all affected governmental agencies, including
special districts, shall be provided maximum opportunities to
participate. Prior to submission of a local coastal program for
approval, local governments shall hold a public hearing or hearings
on that portion of the program which has not been subjected to
public hearings within four years of such submission."
These sections require that LCPs be prepared by local governments in "full consultation with the commission and with full public participation" (s 35000, subd. (c)) and that "the public, as well as all affected governmental agencies ... shall be provided maximum opportunities to participate." (s 30503.) The Commission, sustained by the trial court, found that LCP amendments generated by initiative and submitted after enactment to the Commission for certification did not conflict with Coastal Act requirements for "public participation" and "full consultation." We agree.
Appellants contrast the "normal" method for adoption of LCP amendments by local entities with the initiative process by which Measure A was enacted and the procedures Measure A adopts for future amendments to the LCP. Specifically, appellants argue that the informal consultation occurring in the "normal process" between the Commission, county planning department staff, and interested local agencies does not occur under Measure A. Further, in the "normal" method for adoption of LCP amendments the city council or board of supervisors is the body making the ultimate decision. The typical LCP amendment is subject to debate at small citizen planning sessions, is discussed in the local media, and is ultimately voted on by the council or board after public hearings.
However, as both the Commission and the trial court found, Measure
A and the LCP amendment procedure adopted by Measure A fully comply
with all relevant sections of the Coastal Act. Although informal
consultations between the local entity's planning staff and the
Commission are encouraged, it is the local entity that is charged
with preparation of an LCP amendment. As stated before, the Commission's
role in reviewing a local government's LCP is quasi-judicial--
it determines whether the LCP meets the minimum standards of the
act. (Yost, supra, at p. 572, 205 Cal.Rptr. 801, 685 P.2d 1152;
City of Chula Vista v. Superior Court, supra, 133 Cal.App.3d
472, 183 Cal.Rptr. 909.) [FN11]
FN11. "A local government can amend a certified LCP
or LUP [Land Use Plan]. (s 30514). An amendment which authorizes
a use designated as a permitted use in the LCP does not require
certification by the Commission; an amendment which authorizes
a use other than that designated in the LCP as a permitted use
does require certification by the Commission (s 30514, subd. (d))."
(Yost, supra, p. 573, fn. 9, 205 Cal.Rptr. 801, 685 P.2d 1152.)
Although the Commission can suggest modifications to the proposed
LCP amendment to bring it into conformity with the Coastal Act,
and may disapprove the proposed amendment if it does not comply
with the Act, County chief planner Mark Dueno testified that he
could not recall any modification suggested by the Commission
on an amendment operative in the rural area of the coastal zone
which operated to loosen the restrictions on nonagricultural development.
As evidence before the Commission as part of the process of certification of Measure A and at trial established, much of the same citizen participation occurred in the formulation and campaign on the Measure A initiative as in the "normal" LCP amendment process. The matter was discussed and debated at public hearings before the board of supervisors, at citizens meetings and in the press. Instead of representatives voting on the LCP amendments, however, the people voted directly. As Peter Douglas, executive director of the Commission testified, in the Commission's view, the initiative process not only met the Coastal Act's public participation standards, but was "the ultimate of public participation."
Mark Duino, principal planner with the San Mateo County Planning Department, testified at trial that the process for initiating and analyzing an LCP amendment under Measure A by staff input from various departments would be the same as it is for an amendment not subject to Measure A.
Further, as Douglas testified, the requisite consultation between the local entity's staff and the Commission's staff takes place at the time of submittal of the LCP amendment to the Commission. That consultation occurred here for Measure A and would occur for future amendments under Measure A.
Finally, appellants' arguments regarding full participation and consultation parallel those rejected by the California Supreme Court in DeVita. In DeVita the appellants argued that voter initiatives violated the Government Code section 65351 prescription of "public participation" during the formulation of a general plan amendment and also violated the Government Code section 65352 direction "regarding consultation with public agencies prior to enactment of general plan amendments." (Id. at pp. 786-787, 38 Cal.Rptr.2d 699, 889 P.2d 1019.) The court held "none of the procedural requirements imposed on the legislative body by the planning law can be presumed to limit the right to amend the general plan by initiative." (Id. at p. 787, 38 Cal.Rptr.2d 699, 889 P.2d 1019.) As with general plans, the procedural requirements of sections 30500, subdivision (c) and 30503 regarding the amendment of LCPs can not be presumed to limit the right of the citizens of San Mateo County to amend their LCP by initiative.
A. Measure A does not prevent updating of the County's housing element.
A local agency's general plan must contain a housing element. (Gov.Code, s 65302, subd. (c).) The general plan and all of its elements and parts comprise an "integrated, internally consistent and compatible statement of policies for the adopting agency." (Gov.Code, s 65300.5.) State housing law requires periodic review and assessment of the current housing needs of the community. (Gov.Code, ss 65580, et seq.) This review and assessment must take into account any low- or moderate-income housing approved for construction within the coastal zone. (Gov.Code, s 65588, subd. (d).) Appellants contend that by requiring a supermajority vote of the Board of Supervisors and a vote of the electorate to amend the LCP, Measure A will make future periodic review and updating of County's housing element "virtually impossible." Consequently, they contend Measure A violates state housing law requiring mandatory review, revision and updating of general plan housing elements "as appropriate and necessary" and at least every five years. (Gov.Code, s 65588.) Appellants also contend the LCP relies upon a housing policy which "fails to incorporate a current assessment of the need for affordable housing within the coastal zone." The trial court concluded that appellants failed to prove that Measure A effected any change in the existing housing policy so as to render Policy 3.27 (the local coastal program housing policy in existence at the time of Measure A's adoption) not in current compliance with Government Code section 65588. We agree with the trial court's assessment.
Appellants have the burden of proving a land use regulation arbitrary or irrational. (Goldblatt v. Town of Hempstead (1962) 369 U.S. 590, 596, 82 S.Ct. 987, 991, 8 L.Ed.2d 130.)
Measure A did not amend any provision of County's housing element. It simply referred to a single existing housing policy (Policy 3.27) of the existing LCP. Appellants presented no evidence whatsoever to establish that Measure A effected a change in Policy 3.27 so as to render it in violation of Government Code section 65588. Indeed, on its face that policy promotes affordable housing by granting a density bonus for such units in rural areas of the coastal zone. References in Measure A to Policy 3.27 exempt affordable housing to the extent authorized in that LCP policy as of March 25, 1986. (Measure A, Policies 1.8 c., 5.14 c.)
Appellants' challenge boils down to a claim that Measure A "freezes" affordable housing policies in effect as of March 25, 1986, and consequently does not provide the flexibility needed to conduct the review and updating of the housing element mandated by state law. At trial, the County demonstrated that its ability to amend its housing element had not been unduly burdened by measure A. The County had completed a housing element review and update in 1987, after adoption of Measure A and, at the time of trial in 1991, was in the process of completing another update (including consideration of an amendment to Policy 3.27) in accordance with the requirements of Government Code section 65588, to review and revise the housing element at five-year intervals. (Testimony of County planner Lisa Aozasa) In contrast, as found by the trial court, appellants presented no evidence establishing a breach of the County's obligation or indicating that Measure A impaired that obligation.
DeVita explicitly declined to consider whether the housing element of the general plan may be amended by initiative. (Id. at p. 793, fn. 11, 38 Cal.Rptr.2d 699, 889 P.2d 1019.) The Supreme Court recognized that "the housing element, unlike the other mandatory elements, must be amended according to a fixed schedule--at least once every five years. (Gov.Code, s 65588, subd. (b).) Moreover, any draft amendment to the housing element must be submitted to the State Department of Housing and Community Development for review and comments. (Gov.Code, s 65585.)" (Ibid.) Because the initiative amendment to the general plan neither purported to amend the housing element nor was found inconsistent with it, DeVita did not decide the status of an initiative that either amends or conflicts with the housing element of a general plan. (Ibid.) In this case, too, we see no present inconsistency between Measure A and the relevant part of the housing element of the general plan.
Further, although DeVita did not determine whether amendment of a housing element may be accomplished by initiative, it nevertheless rejected a contention similar to that raised here concerning the alleged inflexibility of an initiative measure: "Our ruling today does not imply that localities may allow their general plans to become obsolete. Indeed, since the passage of Measure J, the Napa County General Plan has continued to be amended and updated, as the trial court found. It is of course conceivable that the Napa County General Plan will, as the result of Measure J, fall so far behind changing local conditions that the County will fail to fulfill an implied statutory duty to keep its general plan current. [Citation.] But as we said in Yost, supra, 36 Cal.3d at page 574, 205 Cal.Rptr. 801, 685 P.2d 1152, in considering whether the exercise of the referendum would frustrate the implementation of the land-use plan (LUP) of a local coastal plan: 'True, if down the road the people exercise their referendum power in such a way as to frustrate any feasible implementation of the LUP, some way out of the impasse will have to be found. At this point, however, the system is not being put to so severe a test.' ... We should not presume--nor, given the rule that doubts should be resolved in favor of the initiative and referendum power, should we assume the Legislature presumed--that the electorate will fail to do the legally proper thing." (Id., at pp. 792-793, 38 Cal.Rptr.2d 699, 889 P.2d 1019.)
Appellants have failed to show that Measure A frustrates implementation of the County's LCP or its housing element.
B. Government Code section 65588, subdivision (b)(2).
Appellants' third cause of action alleged Measure A was invalid
because it was part of the general plan, which itself was defective
because the County had failed to review the housing element of
its general plan in accordance with the timetable set forth in
Government Code section 65588, subdivision (b)(2). [FN12] The
trial court granted summary adjudication of this issue, ruling
"the schedule established by that section for review and
adoption of the revision to the County's Housing Element is directory,
not mandatory, and mere noncompliance with the schedule would
not operate to automatically invalidate the County's Housing Element
or, by extension, the General Plan or Measure A." (Order
granting summary adjudication p. 2.) On appeal, appellants reiterate
their contention, without citation of authority and with no development
of the argument.
FN12. "(b) The housing element shall be revised as
appropriate, but not less than every five years, to reflect the
results of this periodic review. [P] ... [P] (2) Local governments
within the regional jurisdiction of the Association of Bay Area
Governments: January 1, 1985, for the first revision, and July
1, 1990, for the second revision." (Gov.Code, s 65588, subd.
We agree with the trial court that the time table set by section 65588 was directory, rather than mandatory. "Requirements relating to the time within which an act must be done are directory rather than mandatory unless a contrary intent is clearly expressed. (Edwards v. Steele (1979) 25 Cal.3d 406, 410 [158 Cal.Rptr. 662, 599 P.2d 1365] ... and cases cited therein.) Failure to provide for a consequence or penalty for noncompliance strongly suggests that the provision is merely directory. [Citation.]" (Meridian Ocean Systems, Inc. v. State Lands Com. (1990) 222 Cal.App.3d 153, 168, 271 Cal.Rptr. 445; see, Morris v. County of Marin (1977) 18 Cal.3d 901, 908, 18 Cal.3d 901, 136 Cal.Rptr. 251, 559 P.2d 606.) Further, appellants' attack must fail as they have "failed to establish a 'nexus' between the claimed deficiency in the plan and the subject ordinance." (Flavell v. City of Albany (1993) 19 Cal.App.4th 1846, 1853, 25 Cal.Rptr.2d 21.) "As can be seen, appellant[s'] attack concerns certain time-related inadequacies rather than actual substantive inadequacies. In order to invalidate [the ordinance] on this basis, however, appellant[s] must do more than simply point out these inadequacies. [They] must, in addition to this, establish (1) that these omissions have resulted in certain consequences and (2) how the ordinance is affected by these consequences. In our case, appellant[s] have made no showing as to how the inadequacy of failing to timely revise the element would have any bearing or effect on the ordinance." (Ibid.)
The trial court granted summary adjudication on appellants' challenges
to Measure A policies 1.9a and 5.16 requiring an applicant for
land division to grant the County conservation/open space or agricultural
easements as a condition of approval. These easements limit the
use of the land covered thereby to specified uses consistent with
open space (1.9a) or agricultural (5.16) use. [FN13] Appellants
had challenged these policies on the grounds that they violated
due process and constituted a "taking" without compensation
[FN14] (Fourth Cause of Action) and that they violated Civil Code
section 815.3 subdivision (b) (Fifth Cause of Action, No. 329349).
The trial court concluded the due process and taking claims were
not ripe for review and that the policies in any event were "facially
valid police power regulations." (Summary Adjudication Order
p. 3.) The court further concluded that the easements required
by the policies were not prohibited by Civil Code section 815.3
subdivision (b). (Summary Adjudication Order, p. 4.)
FN13. Policies 1.9a and 5.16 are reenactments of virtually
identical provisions in the County's LCP in effect since 1980.
The only change to each policy consist of the parenthetical phrase
"(and the County to accept)" following the requirement
that the applicant grant the easement. Appellants did not challenge
the policies at the time they were originally adopted by the County.
As Mark Duino explained: "An agriculture or open space easement
would be imposed only after an applicant for a land division submits
a proposed Master Land Division Plan or tentative subdivision
map. This plan or subdivision map would show a proposed division
of land, taking into account the development potential of each
parcel. The residual parcel would then be identified, and an
agricultural or open space easement possibly imposed on that residual
parcel. In some cases, the requirement could be waived by the
County. For example, under Policy 1.9(b) of the LCP, if a subdivision
application was submitted in conjunction with an affordable housing
project, the easement requirement would be waived." "Among
the uses allowed in the open space land designation are single-
family residences, multi-family residences, motels, and restaurants,
public and private clubs, temporary trailer parks, farm labor
housing, commercial recreation, nurseries and greenhouses, churches,
schools, fire stations, oil and gas exploration, production and
storage." "The uses allowable on land covered by an
agricultural easement include agricultural uses, non- residential
development customarily considered accessory to agriculture and
farm labor housing." Neither the agricultural easement nor
the conservation/open space easement authorize any public use
or entry. Exclusive use and possession of the land remains in
FN14. Plaintiffs did not argue their takings claim at
trial and have not pursued it on this appeal.
To the extent appellants' claims may be viewed as a challenge
to Measure A "as applied," they are clearly not ripe
for judicial review. As the trial court recognized, appellants'
claim that Measure A was unconstitutional "as applied"
to their properties does not present a concrete controversy ripe
for adjudication because they have not submitted a subdivision
plan or applied for a permit or variance from the local authority
which has been conclusively denied (or in this instance subjected
to the easement requirement). (Kinzli v. City of Santa Cruz (9th
Cir.1987) 818 F.2d 1449, 1453; see, e.g., MacDonald, Sommer &
Frates v. Yolo County (1986) 477 U.S. 340, 348-350, 106 S.Ct.
2561, 2566, 91 L.Ed.2d 285; Williamson County Regional Planning
Comm'n v. Hamilton Bank (1985) 473 U.S. 172, 105 S.Ct. 3108, 87
L.Ed.2d 126; Agins v. City of Tiburon (1980) 447 U.S. 255, 260,
100 S.Ct. 2138, 2141, 65 L.Ed.2d 106; Hensler v. City of Glendale
(1994) 8 Cal.4th 1, 32 Cal.Rptr.2d 244, 876 P.2d 1043; Selby
Realty Co. v. City of San Buenaventura (1973) 10 Cal.3d 110, 117-118,
109 Cal.Rptr. 799, 514 P.2d 111; Smith v. City and County of
San Francisco (1990) 225 Cal.App.3d 38, 46, 54, 275 Cal.Rptr.
17; Longtin's, California Land Use (1995 Supp.) s 12.30 pp.
FN15. Although ripeness is a doctrine usually applied
in the inverse condemnation or "takings" context, in
Smith v. City and County of San Francisco, supra, 225 Cal.App.3d
38, 275 Cal.Rptr. 17, we held appellants' substantive due process
and equal protection claims "subject to the same ripeness
standards applied generally to constitutional challenges of land
use regulation." (Id. at p. 54, 275 Cal.Rptr. 17, citing,
among others, Williamson Planning Comm'n v. Hamilton Bank, supra,
473 U.S. at pp. 199-200, 105 S.Ct. at pp. 3123-3124 and Kinzli
v. City of Santa Cruz, supra, 818 F.2d 1449, 1455-1456.)
B. Facial challenge.
Apparently recognizing that an "as applied" challenge
must founder on the ripeness doctrine, appellants now contend
that their challenge was not to Measure A "as applied"
but was a "facial challenge" to the constitutionality
of the ordinance. [FN16] We conclude appellants have not demonstrated
that policies 1.9 and 5.16 render Measure A invalid on its face.
"A claim that a regulation is facially invalid is only tenable
if the terms of the regulation will not permit those who administer
it to avoid an unconstitutional application to the complaining
parties. [Citations.] This restraint stems from the prudent
judicial policy of avoiding officious checking of the political
branches of the government. (See Tribe, American Constitutional
Law (1988) s 3-10; [citations].) The question whether an alleged
unconstitutional application of a regulation may be avoided is
not governed by the conclusional allegations of the complaint.
Rather, it turns upon the court's appraisal of the legal effect
of the regulation. (See, e.g., Agins v. Tiburon (1980) 447 U.S.
255, 259, fn. 6 [100 S.Ct. 2138, 2141, n. 6, 65 L.Ed.2d 106].)"
(Tahoe-Sierra Preservation Council v. State Water Resources Control
Bd. (1989) 210 Cal.App.3d 1421, 1442, 259 Cal.Rptr. 132; see
also Pennell v. City of San Jose (1988) 485 U.S. 1, 8-14, 108
S.Ct. 849, 856-858, 99 L.Ed.2d 1; Keystone Bituminous Coal Ass.
v. De Benedictis (1987) 480 U.S. 470, 494-496, 107 S.Ct. 1232,
1246-1248, 94 L.Ed.2d 472; Sierra Club v. California Coastal Com.
(Mendocino Co.), supra, 12 Cal.App.4th 602, 617-619, 15 Cal.Rptr.2d
779; 2 Longtin's Cal.Land Use (2d ed. 1987) ss 12.04, 12.15,
1230, pp. 1072-1074, 1099-1100, 1111; id. (1995 supp.) s 12.30.)
FN16. "The ripeness doctrine, requiring a final decision
regarding the application of the regulation to the specific property,
only applies to legal attacks on the regulation 'as applied' to
a specific property. It does not apply when a property owner
challenges the 'facial' validity of the land use regulation.
However, such facial attacks are seldom successful, since a regulation
will only be declared invalid 'on its face' when its terms will
not permit those who administer it to avoid confiscatory or unconstitutional
results in 'any' potential application to the complaining parties."
(Longtin's, California Land Use, supra, s 1230  p. 558, and
cases there cited.)
Appellants have not shown that unconstitutional application of these policies by the County is unavoidable. Not only do various uses of their property remain open to appellants following application of policies 1.9a and 5.16, but section 8 of Measure A specifically provides: "The provisions of this ordinance shall not be applicable to the extent, but only to the extent, that they would violate the constitution or laws of the United States or the State of California." The County has the flexibility to avoid potentially unconstitutional application of easement requirements, should these requirements "go too far" as specifically applied to a particular parcel of property.
Appellants contend that the recent decision in Dolan v. City of Tigard (1994) 512 U.S. 374, 114 S.Ct. 2309, 129 L.Ed.2d 304 supports their claim that Measure A policies 1.9 and 5.16 are unconstitutional conditions. Dolan does not advance appellants' argument because it involved an "as applied" challenge to a permit condition imposed by an adjudicatory body, rather than a challenge to a legislatively adopted land use and zoning scheme such as Measure A.
In Dolan, the city planning commission conditioned approval of Dolan's application to expand her store and pave her parking lot upon compliance with dedication of land for a public greenway and a pedestrian/bicycle pathway. Dolan appealed the commission's denial of her request for variances to the local land use board of appeals and then to state and federal courts. The United States Supreme Court held the city's dedication requirements constituted an uncompensated taking of the property. (Id. at pp. ---- - ----, 114 S.Ct. at pp. 2316-2321.) The court reiterated that in the context of administrative permit decisionmaking, there must exist an "essential nexus" between the "legitimate state interest" and the permit condition exacted by the city to further that interest. (Id. at p. ----, 114 S.Ct. at p. 2317, relying upon Nollan v. California Coastal Com. (1987) 483 U.S. 825, 837, 107 S.Ct. 3141, 3148-3149, 97 L.Ed.2d 677.) Finding such nexus the Dolan court, articulated the required degree of connection between the exactions and the projected impact of the proposed development, stating that there must be a "rough proportionality" between the two. (Ibid.) Further, the burden was on the city to demonstrate that rough proportionality.
The Court went to some lengths to distinguish the situation in Dolan, involving an adjudicative decision by the city, from the traditional legislative and land-use function undertaken by local governments at issue in this case:
"[T]he authority of state and local governments to engage in land use planning has been sustained against constitutional challenge as long ago as our decision in Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926). 'Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law.' [Citation.] A land use regulation does not effect a taking if it 'substantially advance[s] legitimate state interests' and does not 'den[y] an owner economically viable use of his land.' (Agins v. City of Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106 (1980)).
"The sort of land use regulations discussed in the cases just cited, however, differ in two relevant particulars from the present case. First, they involved essentially legislative determinations classifying entire areas of the city, whereas here the city made an adjudicative decision to condition petitioner's application for a building permit on an individual parcel. Second, the conditions imposed were not simply a limitation on the use petitioner might make of her own parcel, but a requirement that she deed portions of the property to the city." (Id. at p. ----, 114 S.Ct. at p. 2316, fn. omitted.)
In responding to Justice Stevens' dissent, the Court noted: "Justice Stevens' dissent takes us to task for placing the burden on the city to justify the required dedication. He is correct in arguing that in evaluating most generally applicable zoning regulations, the burden properly rests on the party challenging the regulation to prove that it constitutes an arbitrary regulation of property rights. See, e.g., Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926). Here, by contrast, the city made an adjudicative decision to condition petitioner's application for a building permit on an individual parcel. In this situation, the burden properly rests on the city. See Nollan, 483 U.S., at 836, 107 S.Ct., at 3148." (Id. at p. ----, fn. 8, 114 S.Ct. at p. 2320, fn. 8.)
The agricultural and open space easement requirements of policies 1.9a and 5.16 are part of a legislatively adopted zoning scheme intended to preserve agricultural and open space land in the San Mateo coastal zone in the event future subdivisions of land are proposed in that zone. Dolan makes it clear that it does not reach the type of legislative determination classifying entire areas of a county, such as we are here concerned with. Rather, its reach is limited to adjudicative decisions conditioning permit applications on particular parcels. Further, in direct contrast to the exactions in Dolan, the easement conditions imposed by Measure A do not require any subdivision applicant to deed any portion of the applicant's property to the County. Rather, the easement conditions are "simply a limitation on the use [the applicant] might make of [his or] her own parcel ..." (Id. at p. ----, 114 S.Ct. at p. 2316.)
Finally, as earlier pointed out, any purported "as applied" challenge in this case fails on ripeness grounds. The easement requirement would not arise unless and until a property owner submitted an application to divide land in the coastal zone. At that point an adjudicative decision would be made as to the appropriateness and extent of the easement requirement.
D. Civil Code Section 815 et seq.
Appellants contend the agricultural and open space easements contemplated by policies 1.9a and 5.16 are "conservation easements" within the meaning of Civil Code section 815 et seq. Consequently, they maintain these policies violate Civil Code section 815.3 subdivision (b), which prohibits the County from conditioning subdivision approval on the granting of a conservation easement. The trial court properly granted summary adjudication of this issue on the ground the easements provided for by policies 1.9a and 5.16 are not "conservation easements" as defined in Civil Code section 815.1. We believe the opinion letter dated July 14, 1982 from the Legislative Counsel to Assemblyman Tom Bates, the author of Civil Code section 815.3, correctly answers this contention. The trial court took judicial notice of this letter, which we quote:
"Does the last sentence in subdivision (b) of Section 815.3 of the Civil Code, relating to conservation easements, restrict the ability of a local governmental entity to require the dedication of an easement under other provisions of law?
"The last sentence in subdivision (b) of Section 815.3 of the Civil Code, relating to conservation easements, does not restrict the ability of a local governmental entity to require the dedication of an easement under other provisions of law.
"Chapter 4 (commencing with Section 815) of Title 2 of Part
2 of Division 2 of the Civil Code [fn. omitted] contains the provisions
of state law regarding conservation easements.[ [FN17]] [P] Section
815.3, which is located in Chapter 4, reads as follows:
FN17. "A conservation easement is defined in Section
815.1 as follows: [P] '815.1. For the purposes of this chapter,
"conservation easement" means any limitation in a deed,
will, or other instrument in the form of an easement, restriction,
covenant, or condition, which is or has been executed by or on
behalf of the owner of the land subject to such easement and is
binding upon successive owners of such land, and the purpose of
which is to retain land predominantly in its natural, scenic,
historical, agricultural, forested, or open-space condition.'
" '815.3. Only the following entities or organizations may acquire and hold conservation easements: " '(a)....................................................................... " '(b) The state or any city, county, city and county, district, or other state or local governmental entity, if otherwise authorized to acquire and hold title to real property and if the conservation easement is voluntarily conveyed. No local governmental entity may condition the issuance of an entitlement for use on the applicant's granting of a conservation easement pursuant to this chapter.' (Emphasis added.)
"Thus, by its own terms, the last sentence of Section 815.3 applies only to Chapter 4 (commencing with Section 815) which relates only to conservation easements. [P] Further, Section 815.9 of the same chapter provides that Chapter 4 shall not be construed to impair or conflict with the operation of any law or statute conferring upon any political subdivision the right or power to hold interests in land comparable to conservation easements, including but not limited to, specified provisions concerning easements (e.g., [citations] ). [P] ... [P] Accordingly, the last sentence in subdivision (b) of Section 815.3 of the Civil Code, relating to conservation easements, by its own express terms and in view of Section 815.9, does not restrict the ability of a local governmental entity to require the dedication of an easement under other provisions of law."
Appellants have not denied that there are other, existing laws which authorize a local agency to require dedication of easements as a condition of development. Clearly, the County has ample authority to require dedication of agricultural and open space easements under several provisions of law. (See, e.g., Associated Home Builders etc., Inc. v. City of Walnut Creek (1971) 4 Cal.3d 633, 644, 94 Cal.Rptr. 630, 484 P.2d 606; Ayres v. City Council of Los Angeles (1949) 34 Cal.2d 31, 207 P.2d 1; s 30607.)
Appellants challenge the trial court's grant of summary adjudication of their cause of action alleging the Coastal Commission failed to comply with the California Environmental Quality Act (CEQA) in certifying Measure A. On the motion of the Commission, the trial court granted summary adjudication on the ground that the Secretary of Resources had certified, pursuant to section 21080.5 and 14 California Code of Regulations, section 15251, that the Commission's review and certification process for local coastal programs and amendments, such as the ones at issue here, was the functional equivalent of full CEQA review.
Public Resources Code section 21080.5 specifies, as did its predecessor, that the Secretary of Resources may certify that an agency's review function under separate legislation is the functional equivalent of CEQA review. Where documents prepared pursuant to an agency's separate environmental review function essentially encompass that which would be prepared in an environmental impact report (EIR), preparation of a separate EIR would be redundant and a plan or other written document can be used in lieu of an EIR. (s 21080.5.)
In 1979, the Secretary of Resources, pursuant to section 21080.5,
certified that Commission review of original LCP submittals was
the functional equivalent of CEQA review and, consequently, no
separate EIR need be prepared. (See Cal.Code Regs, tit. 14, s
15251, subd. (f).) This original certification did not expressly
address whether amendments to certified LCPs were similarly exempt.
Therefore, in reply to an inquiry by Coastal Commission Executive
Director Peter Douglas, the Secretary of Resources issued a legal
opinion that the certification issued for the Commission's LCP
certification activities extended to Commission review of LCP
amendments, such as those here at issue. [FN18] (Letter dated
October 9, 1987, from Secretary for Resources Gordon K. Van Vleck
to Peter Douglas, Executive Director of the California Coastal
FN18. The letter from Resources Secretary Van Vleck provided
in relevant part: "Briefly, it is the view of the Resources
Agency that the certification of the Coastal Commission's LCP
program, as issued by the Secretary for Resources pursuant to
Public Resources Code Section 21080.5, includes both the Commission's
certification of initial LCPs and LCP amendments.... Public Resources
Code Section 21080.9 contains a legislative finding which permits
the Coastal Commission's LCP procedures to qualify for certification
by the Secretary for Resources under Section 21080.5, as an alternative
means of complying with CEQA. Based upon the Commission's application,
and consistent with the terms of Section 21080.9, the Secretary
issued certification for the Commission's LCP certification activities
generally, in a manner which applies to LCP amendments, as well
as to the certification of initial LCPs. Hence, the Commission's
certified program under Section 21080.5 includes the Commission's
certification of LCP amendments."
On appeal, appellants challenge neither the reasoning of the
Resources Secretary nor the legal opinion itself. Rather, they
focus their claim of error upon the trial court's taking of judicial
notice of this letter and declaration of authentication. [FN19]
We believe the court properly took judicial notice of these documents
under Evidence Code section 452, subdivision (c), which provides:
"Judicial notice may be taken of the following matters to
the extent that they are not embraced within Section 451: [P]
... [P] (c) Official acts of the legislative, executive, and judicial
departments of the United States and of any state of the United
States." (See, e.g. Brownell v. City and County of San Francisco
(1954) 126 Cal.App.2d 102, 271 P.2d 974 [letters from the U.S.
Secretary of State to the U.S. Attorney General]; Post v. Prati
(1979) 90 Cal.App.3d 626, 633-634, 153 Cal.Rptr. 511 [legislative
committee reports and correspondence from the legislative analyst,
a state agency and an individual legislator to the governor];
Watson v. Los Altos School District (1957) 149 Cal.App.2d 768,
771-772, 308 P.2d 872 [judicially noticing reports from the state
Board of Education].) The trial court did not err in granting
summary adjudication on this issue.
FN19. Apart from their contention that the court erred
in taking judicial notice of this letter, appellants do not on
appeal present any argument challenging the conclusion of the
Van Vleck letter that Commission review of LCP amendments is the
functional equivalent of full CEQA review. Nor do they challenge
the analysis of the accompanying opinion letter supporting that
Appellants contend Measure A violates the single-subject rule
contained in article II, section 8, subdivision (d) of the California
Constitution. [FN20] We disagree.
FN20. "An initiative measure embracing more than
one subject may not be submitted to the electors or have any effect."
(Cal. Const., art. II, s 8, subd. (d).)
Our Supreme Court reiterated the principles guiding analysis
of a single subject challenge in Raven v. Deukmejian (1990) 52
Cal.3d 336, 346, 276 Cal.Rptr. 326, 801 P.2d 1077 as follows:
"We have held that 'an initiative measure does not violate
the single-subject requirement "if, despite its varied collateral
effects, all of its parts are 'reasonably germane' to each other,"
and to the general purpose or object of the initiative. [Citations.]'
(Brosnahan [v. Brown, (1982) ] supra, 32 Cal.3d [236,] at p.
245 [186 Cal.Rptr. 30, 651 P.2d 274] quoting Amador [Valley Joint
Union School District v. State Bd. of Equalization (1978) ] supra,
22 Cal.3d  at p. 230 [149 Cal.Rptr. 239, 583 P.2d 1281] italics
added by Brosnahan; [citations].)" [FN21]
FN21. "Our Supreme Court has stated that an initiative
measure complies with the single-subject rule 'if its provisions
are either functionally related to one another or are reasonably
germane to one another or the objects of the enactment."
(Harbor v. Deukmejian (1987) 43 Cal.3d 1078, 1100, 240 Cal.Rptr.
569, 742 P.2d 1290; see also Brosnahan v. Brown [ (1982) ], supra,
32 Cal.3d at pp. 245, 247, 186 Cal.Rptr. 30, 651 P.2d 274.) Whether
an initiative satisfies this standard may be determined by the
extent to which its provisions are germane to the general subject
as reflected in the title and the field of legislation suggested
thereby. [Citations.]" (Chemical Specialties Manufacturers
Assn., Inc. v. Deukmejian (1991) 227 Cal.App.3d 663, 667, 278
Furthermore, we are required to resolve any reasonable doubts in favor of the exercise of the right of initiative. (Brosnahan v. Brown (1982) 32 Cal.3d 236, 241, 186 Cal.Rptr. 30, 651 P.2d 274.)
As characterized by appellants, Measure A embraces two distinct subjects: (1) a change in coastal land use policies and (2) off-shore oil drilling and on-shore refineries. We reject this characterization. Measure A unquestionably satisfies the single-subject rule. The provisions of the initiative are "reasonably germane" to one another as they all deal with the planning and regulation of development in the coastal zone in order to protect coastal resources, including agricultural lands, ecologically significant habitats and scenic values. The policies addressing regulation of off-shore drilling and on-shore oil facilities address land use no less than any of the other policies of Measure A.
As presented to voters, Measure A was entitled "Coastal Protection Initiative." The stated purposes of the initiative are: "[P] (1) To protect the farm lands, forests, beaches, scenic beauty and other natural resources of the San Mateo Coast from poorly located, excessive and harmful development; [P] (2) To preserve watersheds, environmentally sensitive areas and wildlife habitats; [P] (3) To maintain agriculture and timber uses on the Coast, including provision of housing for employees; [P] (4) To limit urban-type development to existing urban areas; [P] (5) To prevent the construction of onshore facilities and pipelines for offshore oil drilling; [P] (6) To limit the costs to County taxpayers of roads, fire protection, law enforcement, and other government services by restricting distant and sprawling development on the Coastside; [P] (7) To stabilize and make more permanent essential safeguards of the County's Local Coastal Program, by requiring that any impairment of those safeguards be approved by the voters of the County; and [P] (8) In general, to conserve the natural heritage and beauty as well as the remarkable diversity of San Mateo County, for current and future generations, yet allow reasonable use of the land." (Measure A, s 1.)
All of these stated purposes, including those preventing construction of onshore facilities and pipelines for offshore drilling, are directed at the single general purpose expressed in the title: protection of coastal resources.
Moreover, section 2 of Measure A contains findings describing the potential degradation of coastal resources which would result from construction of extensive onshore facilities in the coastal zone, which findings clearly demonstrate the policies restricting or prohibiting the location of onshore oil facilities are reasonably germane to the purposes stated in section 1 of the initiative.
The embrace of Measure A is certainly no wider than that of either
the County's preexisting LCP or the California Coastal Act, both
of which contain a wide variety of policies, all aimed at achieving
a common purpose: protection of significant coastal resources
through land use regulation. (See Pub.Resources Code, s 30000
et seq.) [FN22] We find no violation of the single subject
FN22. Nor does Chemical Specialties Manufacturers Assn.,
Inc. v. Deukmejian, supra, 227 Cal.App.3d 663, 278 Cal.Rptr. 128,
advance appellants' argument. There, the appellate court held
Proposition 105 ("Public's Right to Know Act") violated
the single subject provision where the measure sought to reduce
toxic pollution, protect seniors from fraud and deceit in the
issuance of insurance policies, raise the health and safety standards
in nursing homes, preserve the integrity of the election process,
and fight apartheid. (Id., at p. 671, 278 Cal.Rptr. 128.) Unlike
Measure A, Proposition 105 lacked a common purpose or object for
the measure which provided a nexus linking the various provisions
to one another. The common purpose of protection of coastal zone
resources supplies that link here.
Measure A adopted the pre-existing LCP scheme governing the density of new land uses in rural coastal zone areas without significant change. Policy 1.8 embodies that scheme. Policy 1.8c limits development in rural areas by requiring density credits based on projected water consumption in order to develop property for non-agricultural uses. Appellants attack the density credit provisions of Measure A policy 1.8c as arbitrary and irrational and challenge Table 1.3, which provides the method for calculating the number of density credits allowed on a specific parcel, as violative of the Coastal Act.
A. Policy 1.8c.
Policy 1.8c provides that each 315 gallons per day of projected water consumption of a development shall use one density credit. For certain priority uses under the Coastal Act, such as public and commercial recreational uses, 630 gallons per day is equivalent to one density credit. Affordable housing and farm labor housing are exempted from those limitations. As the trial court recognized, this is a "debit" system of land use regulation. Based on the characteristics of the land, a landowner of undeveloped property starts with a certain number of density credits. The more density credits a parcel has, the more intensive the development allowed. As development occurs, these credits are used and subtracted from the total available until the property is built out.
Duino, the County's principal planner, explained how the density
credit system would operate in the context of proposals to develop
a quarry and a hotel. In the case of a proposed quarry, if the
parcel had one density credit, the applicant would be required
to show how much water was going to be required for the quarry.
If the amount exceeded 315 gallons per day, the application would
be denied. If it were under 315 gallons per day, it would be
under the maximum density and allowed, provided it met all the
other tests and requirements of the LCP. [FN23] In the case of
a hotel, because it is a recreational-visitor serving facility,
one density credit would allow consumption of 630 gallons per
day. The applicant would be required to show how much water demand
would be generated by the hotel. Provided other policies of the
LCP were met, the maximum size of the hotel would be determined
by the number of density credits available. If the hotel did
not use all the density credits available for the property, the
owner could at some later time increase the size of the hotel
or convert the available density credits to some other use.
FN23. The number of density credits available to the parcel
is not the only determinant of the size of allowable development.
Other policies of the LCP also come into play when evaluating
a proposed project, which might impact the size or type of development
permitted, including, among others, the effect on sensitive habitats
or agricultural land or other natural resources and the impact
of the proposal on availability of public services and facilities.
The crux of appellants' due process challenge to policy 1.8c is that the residential water usage measure does not relate to non-residential uses of land and that there is no linkage between that measure and the nature of the use of the property or to the actual availability of water.
Clearly the burden is upon appellants to prove Measure A is an arbitrary or irrational land use regulation in the face of a presumption that it is both reasonable and constitutional. (Goldblatt v. Town of Hempstead, supra, 369 U.S. 590, 596, 82 S.Ct. 987, 991, 8 L.Ed.2d 130; Birkenfeld v. City of Berkeley (1976) 17 Cal.3d 129, 160-161, 130 Cal.Rptr. 465, 550 P.2d 1001.)
Duino, the only witness who testified on this issue at trial, opined that policy 1.8 is a reasonable regulatory tool for determining the intensity of use. Duino explained that policy 1.8c is part of the comprehensive scheme for limiting the types and density of urban development on rural lands designated for open space or agricultural uses by the LCP and for directing urban development to the urban areas of the coastal zone. Water was chosen to be used as the measure of density in 1980 when the LCP was originally adopted because water was viewed as the most appropriate of several standard planning measures for measuring density. Water was considered to be a valuable and scarce coastal zone resource for which there was much competition. Further, water usage represents a general tool applicable to the approximately 20 different land uses allowed under the applicable zoning.
The County chose 315 gallons per day as the basic measure because
that was the estimate of residential water use for a single family
home in Pescadero, a town in the rural coastal area. This amount
was doubled for priority recreational uses at the suggestion of
the Coastal Commission in 1980. When the original LCP was forwarded
to the Coastal Commission, the Commission staff suggested that
the County should do more to encourage development of recreational
and visitor serving facilities on the coast in recognition of
Coastal Act policy. (s 30222.) Therefore, Commission staff proposed
modifying the policy to allow a greater level of development for
those types of uses. Duino testified he did not know why the
315 was doubled to 630 for such uses, rather than tripled or quadrupled,
but testified that the reasoning was explained in the Coastal
Commission staff report upon review of the original 1980 LCP,
prior to adoption of Measure A. [FN24]
FN24. At trial, plaintiffs did not address that staff
report, choosing to rest on Duino's acknowledgment that he was
at that moment unable to recall its specific explanation for doubling
the water allowance in case of recreational facilities. We will
not assume from this state of the evidence that 630 gallons was
an arbitrary or irrational figure. Duino's testimony makes clear
that there was an explanation, contained in the Commission staff
report at the time of the 1980 LCP certification proceedings.
The County chose to use an estimate of demand rather than on-site water availability as a density measure because water availability varies significantly over time. According to Duino, using on-site water availability at a particular time as a measure would be less predictable. Further, it is more rational to plan out densities based upon the total amount of density allowed in the coastal zone. As intervenors point out, using water availability rather than consumption could promote a race among developers to consume available water supplies and leave those later in time to take their chances that any would be left.
Policy 1.8c provides a reasonable method for calculating the
maximum permissible water consumption budget for a proposed non-agricultural
development on any given parcel. [FN25]
FN25. Appellants hypothesize that the use of density credits
will not provide a way of determining intensity of use if the
proposed use consumes little or no water. However, we agree with
County that as most development does need water, appellants' scenarios
are speculative at best. Appellants cannot prevail by showing
merely that particular applications of the statute at some future
date might create a constitutional conflict. They must demonstrate
that the statute "inevitably poses a present, total and fatal
conflict with applicable constitutional provisions and prohibitions."
(Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168, 180-181,
172 Cal.Rptr. 487, 624 P.2d 1215.)
B. Table 1.3.
Appellants' sole basis for challenging Table 1.3 of is their
claim that Table 1.3 conflicts with the Coastal Act policies encouraging
the development of affordable housing and visitor serving recreational
facilities. (Table 1.3 applies in areas of the coastal zone designated
by the LCP for rural uses and implements policy 1.8 by setting
forth the method for calculating the maximum number of density
credits that will be awarded any legal parcel. One density credit
shall be allowed for every 40 to 160 acres of land, depending
on the listed category it falls within.) [FN26]
FN26. We note that affordable housing and farm labor housing
are not subject to the density credit requirements of policy 1.8c
and Table 1.3.
This claim is clearly a "backdoor" challenge through
traditional mandate and declaratory relief to the Commission's
certification of Measure A as consistent with the Coastal Act.
As noted before (fn. 11), the proper method for such challenge
is through bringing of a petition for a writ of administrative
mandamus pursuant to Code of Civil Procedure section 1094.5.
(E.g., City of Chula Vista v. Superior Court, supra, 133 Cal.App.3d
472, 488, 183 Cal.Rptr. 909; State of California v. Superior
Court (Veta), supra, 12 Cal.3d 237, 249, 115 Cal.Rptr. 497, 524
P.2d 1281; see Sierra Club v. California Coastal Com., supra,
12 Cal.App.4th 602, 609, 15 Cal.Rptr.2d 779.) It is established
the Commission acts in a quasi-judicial role when it reviews a
LCP or LCP amendment for consistency with the Coastal Act. (City
of Chula Vista v. Superior Court, supra.) Consequently, challenge
to the Commission's actions in LCP certification decisions is
via Code of Civil Procedure, section 1094.5. [FN27]
FN27. Significantly, in such actions the only evidence
before the court is the administrative record of the Commission's
decision. A deferential standard of review applies. If substantial
evidence supports the Commission's action, we affirm; if not,
we reverse. (City of San Diego v. California Coastal Commission
(1981) 119 Cal.App.3d 228, 232, 174 Cal.Rptr. 5; Sierra Club
v. California Coastal Com., supra, 12 Cal.App.4th 602, 609-611,
15 Cal.Rptr.2d 779.)
Appellants never pursued such a challenge and on appeal they neither argue that the Commission's decision was unsupported by substantial evidence, nor cite to the administrative record. In such circumstance, we will not canvass the administrative record, but will reject appellants' challenge to Table 1.3.
Appellants contend policy 5.22 conflicts with and is preempted
by article X, section 2 of the California Constitution and section
100 of the California Water Code. Appellants do not attempt to
brief this issue, stating only that "the documents (i.e.,
Policy 5.22 and pertinent California Const. and Water Code provisions)
speak for themselves" and attempting to incorporate by reference
four paragraphs of their First Amended Complaint. Clearly, appellants
have waived this issue on appeal by failing to support it by argument
or citation of authority. (Downey Sav. & Loan Assn. v. Ohio
Casualty Ins. Co. (1987) 189 Cal.App.3d 1072, 1090, 234 Cal.Rptr.
835; Kim v. Sumitomo Bank of California (1993) 17 Cal.App.4th
974, 979, 21 Cal.Rptr.2d 834; Eisenberg, Horvitz & Weiner,
Civil Appeals & Writs (TRG 1994 Rev.) P 9:21, p. 9-5.) Incorporation
by reference of the allegations of the complaint is an inadequate
substitute for appellate argument. [FN28]
FN28. In a letter brief in response to our request for
briefing on the applicability of DeVita, appellants for the first
time contend that the supermajority vote requirement of Measure
A unlawfully amends the County Charter. (Letter brief filed April
18, 1995, p. 4.) We do not address this claim as appellants have
waived it both by failing to raise it below and by failing to
raise it in their opening or closing briefs. (Eisenberg, et al.,
Civil Appeals & Writs, supra, PP 8:171, 8:229, 9:78, pp. 8-66.4,
8- 79, 9-18.1.)
The judgment is affirmed.
PHELAN and HAERLE, JJ., concur.