California Advisory Opinions August 10, 1983: Ca. Att. Gen Opinion 83-310

Advisory Opinion Text

TO BE PUBLISHED IN THE OFFICIAL REPORTS

JOHN K. VAN DE KAMP Attorney General

OPINION
of
JOHN K. VAN DE KAMP Attorney General
JOHN T. MURPHY Deputy Attorney General

THE HONORABLE H. PETER KLEIN, COUNTY COUNSEL, MENDOCINO COUNTY, has requested an opinion on the following questions:

1. May a general law county's general plan be amended by the initiative process?

2. How many changes may be made in a general law county's general plan each time it is amended pursuant to Government Code section 65361?

1. A general law county's general plan may be amended by the initiative process, but such amendment must comply with the substantive requirements for a general plan.

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2. There is no limitation on the number of changes which may be made in a mandatory element in a general law county's general plan each time that mandatory element is amended, but under Government Code section 65361 no mandatory element of the plan may be amended more frequently than three times during any calendar year.

The Board of Supervisors of each county is required to adopt "a comprehensive, long-term general plan for the physical development of the county. . . ." (Gov. Code, § 65300.) Generally, the county's planning agency is charged with the responsibility of preparing and maintaining such plan and of submitting its recommendations thereon to the Board of Supervisors. (§§ 65100-65102 and 65300.) The plan must contain certain mandatory elements (land use, circulation, housing, conservation, open-space, seismic safety, noise, scenic highway and safety) and may also include other elements. (§§ 65302 and 65303.) County zoning ordinances must be consistent with the general plan. (§ 65860.)

The adoption or amendment of a general plan is a legislative act. Section 65301.5 so states: "The adoption of the general plan or any part or element thereof or the adoption of any amendment to such plan or any part or element thereof is a legislative act which shall be reviewable pursuant to Section 1085 of the Code of Civil Procedure [writ of mandate]." (See Arnel Development Co . v. City of Costa Mesa (1980) 28 Cal.3d 511, 516; Karlson v. City of Camarillo (1980) 100 Cal.App.3d 789, 799.)

The California Constitution, in article 2, section 11, states in part that the " [i]nitiative and referendum powers may be exercised by the electors of each city or county under procedures that the Legislature shall provide." The initiative process, as set down in sections 3700-3720 of the Elections Code, permits county voters to enact legislation independently of the Board of Supervisors.

The exercise of the initiative power is limited to matters which are legislative; administrative acts are not subject to this power. ( Simpson v. Hite (1950) 36 Cal.2d 125, 129; Fishman v. City of Palo Alto (1978) 86 Cal.App.3d 506, 509.) Legislative acts declare public policy or purpose and provide for the ways and means of its accomplishment. ( Walker v. City of Salinas (1976) 56 Cal.App.3d 711, 715-716.) Administrative acts, by contrast, are those which are necessary to carry out such legislative

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policy or purpose. ( Fishman v. City of Palo Alto , supra , 86 Cal.App.3d 506, 509.) For example, the enactment of a zoning ordinance is a legislative act while the adjudication of an application for a variance or a conditional use permit is an administrative act. ( Arnel Development Co . v. City of Costa Mesa , supra , 28 Cal.3d 511, 518.) Section 65301.5, by labeling the adoption or amendment of a general plan a legislative act, recognizes that a general plan is a legislative declaration of policy or purpose.

With this background we address the first question: may a general law county's general plan be amended by the initiative process? Our conclusion is that a general law county's general plan may be amended by the initiative process, but the amendment must comply with the substantive requirement for a general plan.

In Arnel Development Co . v. City of Costa Mesa , supra , 28 Cal.3d 511, the city approved the developer's plan for a residential community which included multi-unit housing. Following this decision the voters adopted an initiative which rezoned the property for single-family residences only. On review before the California Supreme Court the initiative was sustained. The court stated at page 516:

"Numerous California cases have settled that the enactment of a measure which zones or rezones property is a legislative act. California courts have so held in cases permitting zoning by initiative ( Associated Home Builders etc . Inc . v. City of Livermore (1976) 18 Cal.3d 582 [135 Cal.Rptr. 41, 557 P.2d 473, 92 A.L.R.3d 1038]; San Diego Bldg . Contractors Assn . v. City Council (1974) 13 Cal.3d 205 [118 Cal.Rptr. 146, 529 P.2d 570, 72 A.L.R.3d 973]; Bayless v. Limber (1972) 26 Cal.App.3d 463 [102 Cal.Rptr. 647]), in cases upholding zoning referendums ( Johnston v. City of Claremont (1958) 49 Cal.2d 826 [323 P.2d 71]; Dwyer v. City Council (1927) 200 Cal. 505 [253 P. 932]), and in cases involving other issues which distinguish between adjudicative and legislative acts ( Lockard v. City of Los Angeles (1949) 33 Cal.2d 453 [202 P.2d 38, 7 A.L.R.2d 990] (scope of judicial review); Toso v. City of Santa Barbara (1980) 101 Cal.App.3d 934 [162 Cal.Rptr. 210] (scope of judicial review); Ensign Bickford Realty Corp . v. City Council (1977) 68 Cal.App.3d 467 [137 Cal.Rptr. 304] (findings); Hilton v. Bd . of Supervisors (1970) 7 Cal.App.3d 708 [86 Cal.Rptr. 754] (sufficiency of evidence))."

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The Arnel case holds that a zoning ordinance is a legislative act and, therefore, is subject to the initiative process. Since the county general plan also is a legislative act (see § 65301.5), it too may be amended by initiative. (See § 65860; Duran v. Cassidy (1972) 28 Cal.App.3d 574, 580-581; O'Loane v. O'Rourke (1965) 231 Cal.App.2d 774, 779-783.)

Associated Home Builders etc ., Inc . v. City of Livermor e (1976) 18 Cal.3d 582, 596 established the principle that the notice and hearing provisions of zoning law do not apply to zoning ordinances enacted by initiative. Likewise, the procedural requirements of notice and hearing do not apply to amendments to general plans enacted by initiative. ( Duran v. Cassidy , supra , 28 Cal.App.3d 574, 585; O'Loane v. O'Rourke , supra , 231 Cal.App.2d 774, 783-784.) Accordingly, when a general plan is amended by initiative the persons affected by the amendment, e.g., the owners of the property involved, would have no rights to notice and hearing; indeed, the planning agency itself would be bypassed by the process.

The initiative process, however, cannot change the substantive requirements of general plans. While the voters have the same power to amend a general plan as the Board of Supervisors, they cannot change a general plan so as to make the plan conflict with the state substantive laws on general plans. As stated in Arnel Development Co . v. City of Costa Mesa , supra , 28 Cal.3d 511, 524:

"Neither do we believe departure from settled precedent is necessary to protect the public interest in rational and orderly land-use planning. Zoning changes must conform to the city's general plan (see Gov. Code, § 65860), which must in turn conform to requirements established by state statute. Zoning changes must also meet the criteria established in Associated Home Builders etc ., Inc. v. City of Livermore , supra , 18 Cal.3d 582, which require such legislation to reasonably relate to the welfare of the region affected. (See 18 Cal.3d at pp. 609-610.) The spectre of a few voters imposing their selfish interest upon an objecting city and region has no basis in reality."

A local initiative cannot create a power which the local legislative body itself does not possess. ( Bagley v. City of Manhattan Beach (1976) 18 Cal.3d 22, 26-27; Arnel v. City of Costa Mesa (1981) 126 Cal.App.3d 330, 337 (on remand).) We conclude, therefore, that a general law county's general plan may be amended by the initiative process, but the amendment must comply with the substantive requirements for a general plan.

We turn to the second question presented to us: how many changes may be made in a general law county's general plan each time it is amended pursuant to Government Code section 65361?

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Section 65361 provides in part as follows:

"(a) Except as provided in subdivision (b), no mandatory element of a general plan shall be amended more frequently than three times during any calendar year, which amendment or amendments may occur at any time as determined by the legislative body."

The inquiry, stated another way, is whether or not a single amendment of a mandatory element may make more than one change in such element. Karlson v. City of Camarillo , supra , 100 Cal.App.3d 789 has answered this question.

In Karlson the city amended the mandatory land use element of its general plan by changing the designation of a 10-acre parcel from agricultural to commercial. This amendment, captioned 77-3, also changed the designation of a separate 14.75-acre parcel from rural to low density residential. Previously that year the city had twice amended the land use element and it was argued that 77-3 constituted a third and fourth amendment with the latter being illegal under section 65361. The court, at page 808, rejected this contention:

"Appellant also attacks the amendment 77-3 as being adopted in violation of the law. In the first instance he argues that since 77-3 related to two parcels, neither of which had any relation to the other, and since two prior amendments had been adopted in 1977, the council had exceeded the allowed limit of three. In its original form section 65361 permitted general plan amendments without limitation as to number. In 1974 it was amended to contain the present limitation of three annual amendments. There is no language in the section which deals with any concept other than numbers and mandatory elements. If the Legislature had intended other limitations such as suggested by appellant relating to parcel numbers it would have been a simple matter for it to indicate this by narrowing the scope of subject matter, or the number or size of parcels. There is no evidence of legislative intent or public policy to warrant the construction suggested by appellant. Both sides agree that the rationale behind the 1974 amendment is one of promoting public participation in the amendment process. This is accomplished by limiting the number of times a year amendments could be considered, and through the limitation to insure a reasonable opportunity for people to be represented and heard. This policy is not thwarted by permitting consideration of more than one parcel in an amendment of an element of a

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general plan. By keeping the number of appearances down, the burden occasioned by too frequent addressing of problems is reduced. No valid reason has been advanced for construing the clear language of the section in any way other than to limit the number of occasions in each year on which amendments can be considered."

Accordingly, we conclude that there is no limitation on the number of changes which may be made in a mandatory element in a general law county's general plan each time the mandatory element is amended, but under Government Code section 65361 no mandatory element of the plan may be amended more frequently than three times during any calendar year.