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HomeMy WebLinkAbout12/1/2004 - STAFF REPORTS (21) ` WYNDER, LLP rA&"AA1A'1*T0 RN CYSALESHIRE AT LAW www.awaa"rn eys.cam INTER-OFFICE MEMORANDUM TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: DAVID J.ALESHIRE, CITY ATTORNEY DOUGLAS P.HALBERT,DEPUTY CITY ATTORNEY CC: DAVID READY, CITY MANAGER TROY BUTZLAFF,ASSISTANT CITY MANAGER KATHIE HART,ACTING CITY CLERK DATE: NoVEMBER 24,2004 FILE: 01003-0001 RE: COUNCIL-INITIATED BALLOT MEASURES FOR MARCH 2O05 ELECTION I. INTRODUCTION & SUMMARY OF CONCLUSIONS A. At the City Council meeting on November 10, 2004, the Council voted to place the Palm Hills Referendum measure and the Mountain Region Initiative) on the March 2005 ballot. The Council also directed that this office provide related measures concerning the Initiative for Council consideration. B. In addition to petition-initiated ballot questions, measures may also be placed on the ballot directly by the City Council. Measures placed on the ballot by petition drive do not require compliance with the California Environmental Quality Act ("CEQA'), however a Council-initiated ballot measure must comply with CEQA or be exempt from CEQA, just as if the Council enacted the measure directly. C. Our office has prepared two concepts for City Council consideration: one measure to create an open space acquisition fund and the other to create a mountain area preservation program, as summarized below. 1. Creation of Mountain Initiative Acquisition Fund. This measure would create a [$50M, $75M, $100M] fund by issuance of general obligation bonds to acquire open space and to compensate property owners for takings, in the event the Initiative is approved. Creating a $50M fund could require annual payments of$50 per $100,000 of The citizen-initiated petition refers to itself as the "Mountain Region Initiative." However, the measure affects non-mountain areas, including some areas which are completely flat. The Council has specifically asked us to address was the "mountain areas" (i.e. above the toe of slope). To limit confusion, we will refer to the citizen-initiative as the "Initiative," and the area affected by the Initiative as the "Initiative Area." When we refer to "Mountains" in this memo, or "Mountain Area," we mean only to true,non-flat mountain areas. 01003/0001/35902.03 Hon. Mayor and Members of the City Council November 24, 2004 Page 2 assessed value ($150 per year for a single family residence valued at $300,000). As written, this measure does not conflict with the Mountain Region Initiative and is exempt from CEQA pursuant to Section 15313 of the CEQA Guidelines. 2. Adoption of a San Jacinto-Santa Rosa Mountain Protection Act. This measure would include a strategy to benefit actual 'Mountain areas" including (a) authorizing property acquisition and creation of open space easements; (b) permitting a developer habitat migration program where habitat could be acquired and dedicated for open space at a ratio 3 acres of Mountain Area for every acre of land consumed by the project; and (c) authorizing development of hillside regulations limiting development. As written, this measure would not conflict with the Initiative and is exempt from CEQA pursuant to Sections 15307 and 15308 of the CEQA Guidelines. D. The Council has until December 10, 2004, to place a measure on the March 2005 ballot. However, our office needs immediate direction on both concepts so we may prepare the appropriate documents calling for the election. In the case of the Acquisition Fund, immediate action is needed since calling a bond measure election must be done in two steps. As a final point, it should be remembered that even if the Initiative were adopted, the Council may study the areas affected by the Initiative and propose alternative regulations in the future for adoption by the voters. In this manner, the more limited down zoning proposed in the urgency ordinance proposed by the City Council could be brought before the voters at a later time. However, before placing such a measure on the ballot, the Council will have to comply with all appropriate CEQA procedures. II. LEGAL ANALYSIS A. Authority for Council-Initiated Ballot Measures. While many states do not permit voters to add new laws or amend existing laws by petition and subsequent ballot measure, California has a rich history permitting such voter- initiated democracy. California law also provides that the City Council of any city may amend or propose new law by ballot measure. State law provides: "§ 9222. Proposition for repeal, amendment, or enactment of ordinance; Time of election The legislative body of the city may submit to the voters, without a petition therefor, a proposition for the repeal, amendment, or enactment of any ordinance, to be voted upon at any succeeding regular or special city election, and if the proposition submitted receives a majority of the votes cast on it at the election, the ordinance shall be repealed, amended, or enacted accordingly. A proposition may be submitted, or a special election may be called for the purpose 0100310001/35902.03 Hon. Mayor and Members of the City Council November 24, 2004 Page 3 of voting on a proposition, by ordinance or resolution. The election shall be held not less than 88 days after the date of the order of election. Accordingly, the City Council, in addition to any powers it may already have to enact new law or amend existing city law, may submit a measure doing the same to the voters. Cities frequently place measures before the voters, as authorized by Elections Code § 9222. In fact, some laws, such as those imposing or increases taxes or fees, may not be adopted unless there is first a vote of the people. B. Conflictin2 Ballot Measures. The California State Constitution provides that if two conflicting ballot measures are adopted at the same election, then the measure receiving the most votes supercedes the measure receiving fewer voters. Article XI, section 3(d) of the California Constitution provides: "If provisions of 2 or more measures approved at the same election conflict, those of the measure receiving the highest affirmative vote shall prevail." Consequently, where measure completely conflict, even though both measures may receive a majority "yes" vote from the voters, only one may take effect. This rule is identical to Article 11, section 10, subdivision (b) of the Constitution, which governs statewide Initiatives and referenda. In this respect, case law discussing local or state ballot measures are interchangeable. In Taxpayers to Limit Campaign Spending v. Fair Pol. Practices Comm. (1990) 51 Cal.3d 744 ("Taxpayers"), California voters had, at the same election, approved Propositions 68 and 73, each measure intending to provide comprehensive regulation of political campaign contributions and spending. There was nothing in the measures to indicate the intent of the electorate in the event both measures should pass. (Id. at p. 769.) The Supreme Court in Taxpayers concluded that, "unless a contrary intent is apparent in competing, conflicting Initiative measures which address and seek to comprehensively regulate the same subject, only the provisions of the measure receiving the highest affirmative vote become operative upon adoption." (Id. at p. 770.) However, if a court can read two measures together and concludes that the measures do not completely conflict, it may uphold portions of each measure. For example, in Horn v. Allen (1924) 195 Cal. 121 ("Horn"), voters of the City of Los Angeles were presented with a proposal to adopt a charter. The proposed charter called for election of 11 "at large" Council members. As an alternative proposition, the voters were presented with a proposal to divide the city into 15 districts, with Council members elected from their districts. Both proposals were adopted, with adoption of the charter receiving the higher affirmative vote. The city Council then refused to give effect to the alternative proposition, reasoning that the adoption of the charter by the higher affirmative vote rendered the alternative proposition ineffective. (Id. at pp. 123-125.) y p) v 01003/0001/35902.03 Hon. Mayor and Members of the City Council November 24, 2004 Page 4 In resolving the issue, the Supreme Court noted that voters who wished to adopt the charter and retain at-large elections could vote "yes" on the first proposition and "no" on the second. Voters who wished to adopt the charter but desired to incorporate district elections could vote "yes" on both propositions. Thus, Horn found no fatal conflict and gave effect to the charter, as amended by the second proposition. (Id. at p. 132.) As written, the two proposed ballot measures discussed in this memorandum would not conflict with the Initiative. In our opinion, if the Initiative is adopted by the voters, and either or both of these proposed measures are adopted at the same election, then each would become law in its entirety since no portion of the measures are in direct conflict with any other measure or portion thereof. C. Compliance with CEQA. The Californa Environmental Quality Act ("CEQA") requires environmental review of a project prior to its consideration by a public agency. (Cal. Pub. Resources Code §21061.) If review of the project concludes that it may have a significant effect, an environmental analysis, which may include a full Enviromnental Impact Review ("EIR"), is required to be completed before the project is approved. Measures placed on the ballot by petition drive, however, are exempt from the California Environmental Quality Act ("CEQA"). (Stein v. City of Santa Monica (1980) 110 Cal.App.3d 458.) Consequently, CEQA Guidelines have been drafted to exclude from the definition of project, an act approved by the voters as a result of a voter-initiated petition drive. (CEQA Guideline § 15378.) A conflict arises between the policies behind CEQA, which require significant review and analysis prior to public agencies making decisions significantly affecting the environment, and the constitutional right of the voters to legislate through initiative. In weighing this conflict, the courts have upheld the policy of exempting citizens from burdensome CEQA requirements so they may exercise their initiative rights. hi contrast, a ballot measure put before the voters by the City Coimcil is not exempt from CEQA. (Friends of Sierra Madre v. City of Sierra Madre (2001) 25 Cah.01 165.) As a result, while a ballot measure initiated by the voters does not require any environmental review -- regardless of its impact on the environment -- the same measure, if placed on the ballot by the City Council, could require a fiill EIR. In the case of a Council-initiated ballot measure, there is also some uncertainty over whether compliance with CEQA must be achieved prior to placing the measure on the ballot, or prior to the election. Under CEQA, "approval" of a project means the decision by the agency which commits the agency to a definite course of action regarding the project. (Lee v. City of Lompoc (1993) 14 Cal.App.0 1515, 1523-1524.) In some cases, the courts have construed the 01003/0001/35902.03 Hon. Mayor and Members of the City Council November 24, 2004 Page 5 act of calling for an election as the decision which "commits" the agency with respect to the project. For example, in Friends of Sierra Madre v. City of Sierra Madre (2001) 25 Cal.4`h 165, the Supreme Court held the City of Siena Madre should have conducted an EIR before calling an election to vote on a measure. The Supreme Court held: "We conclude, therefore, that initiative measures generated and placed on the ballot by a public agency are not exempt from CEQA. Before placing any such measure that may lead to voter approval of a project on the ballot, the agency must comply with CEQA. If compliance leads to the preparation and consideration of an EIR, when that process is final the information contained in the FIR must be made available to the electorate for its consideration prior to the election." On the other hand, in Citizens for Responsible Government v. City of Albany (1997) 56 Cal.App.4"' 1199 ("City of Albany"), the Court of Appeal looked at a ballot measure to authorize a card club at the City's race track facility. The ballot measure included, among other things, a zoning amendment and development agreement. The Court concluded that the decision to place the "zoning amendment" on the ballot did not commit the City to any course with respect to the card club project. However, the City's approval of a"development agreement," contingent upon the approval of the voters, was considered an act committing the City to a particular course with regard to the project. A possible argument could be made that the discretionary act would be the approval by voters of a ballot measure, and therefore, the Council only need comply with CEQA before the election date. However, there is some compelling case law to argue the opposite position— that compliance must be reached prior to placing a measure on the ballot. Taking a position that the Council may place a measure on the ballot, then comply with CEQA before the election date, would likely result in bringing the City Council into litigation with a substantial risk of an adverse decision. Consequently, we believe that the Council should only consider options which clearly comply with CEQA(or are exempt from CEQA)before placing a measure on the ballot. Some measures are categorically exempt under CEQA. For example, CEQA Guidelines provide for a range of actions exempt from CEQA for various reasons, such as (a) where the nature of the action only protects the environment (habitat protection measures), or (b) it is not a critical action in the development cycle (property acquisition is exempt but seeking development approval is not). We would like to emphasize in the proposals which follow that we are not advocating any particular action. The Council has asked us for other ballot measures for consideration, to be placed on the March 8 ballot, and we are providing this memorandum in response to such questions. Based on the above factors, the takings claims which have been advanced by the property owners, the citizen concerns with protecting mountain areas, and the action the Council has already taken unanimously to reduce development densities in the Chino Care Area, a 01 0 03/0 001/3 59 02.03 '' Hon. Mayor and Members of the City Council November 24, 2004 Page 6 number of options occurred to us. The purpose here is to present broad concepts and get direction as to how to proceed to prepare the measures to give voters greater choice. The ultimate decisions will be made by the voters. III. BALLOT MEASURE CONCEPTS The following ballot measures are suggested for discussion by the City Council. A. Mountain Initiative Acquisition Fund. SAMPLE BALLOT QUESTION: "Shall General Obligation Bonds in the amount of [$50M, $75M, $100M] million be issued to acquire open space, wildlife habitat and other environmental sensitive land, and to compensate property owners where legally necessary for a taking of their property in the event Measure B is adopted by the voters?" The refrain from the property owners has been, "If you believe that the undeveloped desert lands we own contributes to the ambiance of Palm Springs, then buy it from us and you can keep it for all time. If you choose to take our property by prohibiting its development, under the California and U.S. Constitution you must pay us just compensation." Although in our November 10th report we stated that we did not believe the City would be liable to all property owners, we said that some valid claims may exist and certainly much litigation would ensue. If approved by the voters, this measure would create a find to buy land for open space or to compensate property owners for damages if valid takings claims are established. The fluid would be created through a general obligation bond measure which must be approved by two-thirds of the voters. Although the precise language needs to be developed, to pay off a $50M bond measure over 30 years, the Finance Director estimates that the annual cost would be $50 to $60 per $100,000 of assessed value. Accordingly, for a $200,000 house, the assessment would be approximately$100 to $120 per year. CEQA Guidelines provide for "exemptions" for certain action that otherwise might be considered projects or programs subject to environmental review. Section 15313 of the CEQA Guidelines explains an exemption for acts which: ". consists of the acquisition of lands for fish and wildlife conservation purposes including (a) preservation of fish and wildlife habitat, (b) establishing ecological reserves under Fish and Game Code Section 1580, and (c) preserving access to public lands and waters where the purpose of the acquisition is to preserve the land in its natural condition." We believe an acquisition fund for sensitive mountain areas is categorically exempt fi-om CEQA under Section 15313 of the CEQA Guidelines. Creating an acquisition fund would 0 1 003/0 0 01/3 5 9 02.03 Hon. Mayor and Members of the City Council November 24, 2004 Page 7 preserve the mountain land in its natural condition in perpetuity and would clearly further the goals and policies of this exemption. The relevant procedural requirements for the approval of general obligation bond measures are laid out in § 43600 et seq, of the Govermnent Code of the State of California. These requirements also meet the standards laid out in Article XIIIA of the California Constitution (Prop. 218) and the Charter of the City of Palm Springs. Under Government Code § 43607, the process is initiated when the City Council adopts a resolution by 2/3 votes of the entire Council determining that the public interest or necessity demands the acquisition, construction or completion of any municipal improvement. A form of resolution is attached hereto as Exhibit"A." Following adoption of the resolution, the legislative body may (at any subsequent meeting) by a 2/3 vote adopt an ordinance ordering the submission of the proposition to the voters. (Cal. Gov. Code § 43610.) Since the Ordinance concerns an election, the Ordinance is effective immediately following the second reading of the Ordinance. (Palm Springs City Charter § 315) The Ordinance may be read at the same meeting the resolution is adopted and adopted at a subsequent meeting. (Crescent City v. Griffin (1939), 31 Cal. App. 2d 133.) The ordinance is then published in accordance with statutory requirements. B. San Jacinto-Santa Rosa Mountain Protection Act of 2005. SAMPLE BALLOT QUESTION: "Shall the City of Palm Springs adopt the San Jacinto-Santa Rosa Mountain Protection Act of 2005, to establish an environmental protection strategy for sensitive mountain land within the City of Palm Springs." CEQA exempts actions to protect the enviromment and sensitive natural resources. (CEQA Guidelines § 15307, § 15308.) Section 15307 of the CEQA Guidelines exempts actions "taken by regulatory agencies as authorized by . . . local ordinance to assure the maintenance, restoration, or enhancement of a natural resource where the regulatory process involves procedures for protection of the environment." Similarly, Section 15308 of the CEQA Guidelines exempts actions "taken by regulatory agencies as authorized by . . . local ordinance to assure the maintenance, restoration, enhancement or protection of the environment where the regulatory process involves procedures for protection of the environment." The stated goal of the San Jacinto-Santa Rosa Protection Act would be, in part, to compensate property owners who otherwise may have a takings claim against the City, thus avoiding litigation. The measure would also provide a strategy for preserving the mountain land 01003/0001/35902.03 Hon. Mayor and Members of the City Council November 24, 2004 Page 8 in its natural condition. While the program has not yet been developed, components could include: 1) Establishment of an environmental protection plan for sensitive mountain land; 2) Provisions requiring 3 to 1 replacement of habitat areas to be paid for by developers when non-mouuntain land is developed, 3) Authorization for the City to accept open space easements from property owners, 4) Authorization for the City to purchase mountain land for open space, and 5) Require that the City Council update the environmental protection plan every 5 years to ensure the City is doing everything practical to preserve the mountain resources. This measure would need to expressly define the area affected. It may be reasonable for the Council to limit the protected areas to true "mountain" areas, which would be described in detail in the measure. Alternatively, the Council could decided that this measure should overlap the areas described in the Initiative. IV. CONCLUSION As discussed above, the City Council has some options for placing other ballot measures on the ballot for the March 2005 election. Unlike with voter-initiated petition, there is some significant state law restricting the power of the City Council to place a measure on the ballot. Specifically, in some cases, the Council would need to prepare an environmental analysis prior to voting to put a matter before the voters. We expect that these concepts for ballot measures will result in significant discussion at the Council meeting on Wednesday, December 1". A very limited time remains to prepare matters for the March ballot. Consequently, it is important to receive as much direction from the Council as possible if it wishes to place either, both, or some other measure on the March 2005 ballot. [END OF MEMORANDUM] 01003/0001/35902 03 PROOF OF PUBLICATION This is space fin County Clerli Filing Stamp (2O15.5.C.C.P) iPL =;x 'I0 '�,. .•.r STATE OF CALIFORNIA County of Riverside - No.0605 Notice of Special Martelpal Election CITY OF PALM SPRINGS - NOTICE IS HEREBY GIVEN that a Special Muria- pal Flectlon will be held in the,Cnyy of Palm Springs. Callfernla, on Tuesday, the F7in day of March, 2004,for the purpose of submitting to the qualified voters of said City the following ques- ens? Measure B: I am a citizen of the United States and a resident of Shall the General Plan of the City of Patin Sp rings the County aforesaid;I am over the age of eighteen be amended to establish a new Mountain Region ears,and not a a to or interested in the Designation for property in and near the San Ja- y p rty cote and Santa Rosa Mountains, and repeal cui- ' above-entitled matter.I am the principal clerk of a rent land use regulations affecting this property? printer of the,DESERT SUN PUBLISHING x Yes X No COMPANY a newspaper of general circulation, Measure C: - - printed and published in the city of Palm Springs, Shall Resolution 20994 approving amendments to - 1 County of Riverside,and which newspaper has been the General Plan Use and Circulation Plan forPalm H[lis area be adopted? rlf' adjudged a newspaper of general circulation by the X Yes x No U Superior Court of the County of Riverside,State of The polls will be open on the day of said eleetlon r� California tinder the date of March 24, 1988.Case between the hours of 7 a.m. and o Number 191236;that the notice,Of Which the NOTICE IS FURTHER GIVEN THAT arguments foi or against the measure(s) may be fllatl wish the annexed is a printed copy(set in type not smaller Crty'Clerk at 3200 Tahqunz Canyon Way, Palm I Springs, CA no later than 5:00 p.m., Tuesday„ C than non pariel,has been published in each regular December 21,2004. and entire issue of said newspaper and not in any Date: December 13, 2004 supplement thereof on the following dates,to wit: /a/Kathleen D Han, CNIC Acting City Cleik December 170i Aviso de Eleccion Especial EN LA CIUDAD DE-PALM SPRINGS ----------_--------------------------_________________________ _ AVISO ES DADO POR ESTE MEDIO qua one Eleccion especial tomara lugar an Is cwdad de ----------_-------------„-------------_---------------____---- Palm Springqs, California, el Mertes, 8th did de Maria, de 2004, pare sometir a los votantes de All In the year 2004 susodicha ended la(s) siguiente pregunta(s). MEDIDA 'B" I certify(or declare)under penalty of perjury that the Debars enmendarse el Plan General de Is Cludad foregoing is true and correct. de Palm Springs con el fin de establecer one nueva denomination MR(Region Montanosa) pa- rs miss t manes 55 5 mtlias cuadmdas de propie- 1h dad any roxima a las Montanas de San Jacinto Dated at Palm Springs,California this----17 ----day y Santa Rosa, y anulai [as divemas reyyulaaones de use de suelo qua actualmente afectan a card propiedad? of------December----------2004 Deblena ado tars x No al ` MEDIDA "do __________________________________________________ P i is Resolution e y C Para' ---"-'-"---- aprobar as enmiendas gal Plan de Use y Clrcula- Signature cion del Plan General pare el area de Palm Hills? X Si X No Las urnas de votacion estaran abiertas el dia de tal Eleccion entre as herds do 7a.m, y ap.m. AVISO ES DAD ADEMAS qua se pueden some- tlr erg"mantes a favor o an contra do la medr da(s)can el secretano de la cuidad 3200 shan'tz Canyon Way, Palm Springs, CA, no miss tattle qua 5:00 p.m.,Diciembre 21,2004. Fechado: /a/Kathleen D.Hart, CMC -crania l- la Ci = Palm ° it