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HomeMy WebLinkAbout10/6/2004 - STAFF REPORTS (19) DATE: October 6, 2004 TO: City Council FROM: City Clerk CERTIFICATION OF MOUNTAIN REGION (HILLSIDE) INITIATIVE AND REFERENDUM AGAINST 20994 (PALM HILLS) PETITIONS RECOMMENDATION: That the Council consider action on the initiative petitions filed concerning amending the General Plan to include a Mountain Region designation and a referendum petition filed concerning amending the General Plan regarding Palm Hills. BACKGROUND: On August 4, 2005, the proponents of the referendum filed their petition, entitled: "REFERENDUM AGAINST A RESOLUTION PASSED BY THE CITY COUNCIL — A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA APPROVING THE AMENDMENTS TO THE GENERAL PLAN TEXT WITH RESPECT TO POLICIES 5.4.1, 5.4.4(B) AND (C) AND PALM HILLS AREA PLAN ELEMENTS #6 AND #7 AND ADDING AN ADDITIONAL ELEMENT #8 FOR THE PALM HILLS PLAN AREA(Resolution 20994)." A 100% verification process was used to determine the validity of the signatures and the petition has been certified. The Elections Code provides that the City Council entirely repeals the ordinance against which the petition was filed, or provides for an election. The ordinance shall not become effective until a majority of the voters voting on the ordinance vote in favor of it. On August 11, 2005, the proponents of the initiative filed their petition entitled: "INITIATIVE TO (1) AMEND THE CITY OF PALM SPRING' GENERAL PLAN TO ESTABLISH A NEW MOUNTAIN REGION DESIGNATION FOR PROPERTY IN AND NEAR THE SAN JACINTO AND SANTA ROSA MOUNTAIN, AND (2) REPEAL CURRENT LAND USE REGULATION AFFECTING THIS AREA." A random sampling technique permitted by the California Elections Code was used to determine the validity of the signatures, and the petition has been certified to contain in excess of 110% of the number of valid signatures to qualify as a petition containing 15% of the number of registered voters. The Elections Code provides that a Special Election shall be ordered if the petition contains 15% of the registered voters, and contains a request for a special election. This petition did contain such a request. The Council may adopt the ordinance as written or may call for election or may request a report on the effect of the proposed initiative for its fiscal impact and/or its effect on the internal consistency of the city's general and specific plans, including the housing element; the report shall be presented to the legislative body within 30 days of the presentation of the certification of the petition. 10-6-04 Council Report Page 2 Should the City Council desire to call for Special Election for the two (2) Measures; the election would have to be called no later than December 10, 2004 to be set for the March 8, 2005 established election date. As of this date, no other entity has requested an election for the March 8, 2005 date. The cost for a stand-alone election will be approximately $75,000 but should not exceed $85,000. The enabling Resolutions will be prepared and submitted to the Council for cons deration at a subsequent meeting after direction. PATRICIA SANDERS City Clerk City Managed G,v Attachments Certifications ?ALAI '•. N C'�y Of pal Sp]r 'mg O Office of the City Clerk 9 ��a"oen.cv 3200 Tahgma Cnnyon Way - Palm Spnngq CahFom,a 92262 Oq TEL:(760)323-8204 FAX (760)322-8332 ° TDD (760)R6¢9527 State of California ) ss. City of Palm Springs ) I, PATRICIA A. SANDERS, City Clerk of the City of Palm Springs, California, do hereby certify that on August 6, 2004 the petition entitiled `Referendum Against Resolution no. 20994" was filed with the Registrar of Voters of the County of Riverside, California for the purpose of verifying that the signatures thereon were registered within the defined area. I further certify that the signatures on said petition were counted and examined by means of a 100% verification process, and that the results of said examination are as follows: That the total number of signatures submitted for said petition was... 2,704 The total number of signatures checked was ............................... 2,704 The total number of sufficient signatures on said petition is ............. 2,423 The total number of insufficient signatures on said petition is ........... 281 1 further certify that, pursuant to Section 9255 of the California Election Code, the number of valid signatures required to qualify said petition is 2,276 (10% of 22,761, the number of voters in said City as of the last report of registration to the Secretary of State); and that, because the number of valid signatures on said petition was 2,423, the petition is hereby declared sufficient. DATED: September 17, 2004 PATRICIA A. SANDERS City Clerk -3, Bost Office Box 2743 0 Palm Springs, California 92263-2743 PALMS'•. (City Of POLIM Spirings h e ' * ' Office ®f slne City Clerk 3200 Mgma Canyon Way ° Palm Spnngs,Cakfum�a 92262 TEL:(760)323-8204 - fAX (760)322-S332 -TDD (760)564-9527 State of California ) ss. City of Palm Springs ) I, PATRICIA A. SANDERS, City Clerk of the City of Palm Springs, California, do hereby certify that on August 11, 2004 the petition entitiled "Initiative To Amend The City Of Palm Springs' General Plan To Establish A New Mountain Region Designation For Property In And Near The San Jacinto And Santa Rosa Mountains And Repeal Current Land Use Regulations Affecting This Area" was filed with the Registrar of Voters of the County of Riverside, California for the purpose of verifying that the signatures thereon were registered within the defined area. I further certify that the signatures on said petition were counted and examined by means of a 3% (or 500 signatures; random sampling) verification process, and that the results of said examination are as follows: That the total number of signatures submitted for said petition was... 4,290 The total number of signatures checked was ............................... 500 The total number of sufficient signatures on said petition is ............. 464 The total number of insufficient signatures on said petition is ........... 36 I further certify that the number of valid signatures required to qualify said petition is 3,414 (15% of 22,761, the number of voters in said City as of the last report of registration to the Secretary of State); and that, because the number of valid signatures on said petition was 464 (more than 110% required to certify petition via random sampling pursuant to Election Code 9115), the petition is hereby declared sufficient. DATED: September 13, 2004 PATRICIA A. SANDERS City Clerk Post Office Box 2743 ° Palm Springs, California 92263-2743 .10.05.2004 �t;a� Honorable Mayor and Members of the City Council City of Palm Springs 3200 East Tahquitz Canyon Way Palm Springs, CA 92262 RE: DEFICIENCIES OF MOUNTAIN PRESERVATION INITIATIVE Honorable Mayor & Members of the City Council: I represent a group of property owners with property interests in the City of Palm Springs. Our properties are located in areas affected by the Mountain Preservation Initiative measure ("Initiative") that has been submitted to the City of Palm Springs for placement on the March 2005 ballot. The Initiative proposes to redesignate the general plan land use classification of these properties to "Mountain Region" and reduce the permitted density to one dwelling unit per forty (40) acres. It is our understanding that the Riverside County Registrar of Voters has verified sufficient signatures to qualify the Initiative for the ballot. We further understand that the City Clerk will similarly be presenting the Initiative to the City Council at your October 6, 2004 City Council meeting for action pursuant to California Elections Code, §9215 or §9214. We believe that the Initiative, as drafted, is legally flawed, contains many inaccuracies that have misled the signors of the petition and should not be placed on the ballot. These reasons as outlined by our attorneys are as follows: THE MOUNTAIN PRESERVATION INITIATIVE PETITIONS ARE DEFECTIVE BECAUSE COPIES OF THE PALM SPRINGS GENERAL PLAN AND ZONING ORDINANCE WERE NOT ATTACHED TO THE PETITIONS We understand that the Initiative petitions submitted to the City Clerk consisted of (1) the Notice of Intent to Circulate Petition; (2) the Mountain Preservation Initiative; (3) Exhibit "A" containing 8 maps; (4) Exhibit "B" describing deletions to the General Plan; and (5) the signature lines for the petition. No portion of the Palm Springs General Plan was attached to the Initiative petitions. Moreover, we understand that at no time was the General Plan or any portion of the General Plan presented to persons who signed the petition.' Several California courts have held that the failure to include copies of the challenged general plan or zoning ordinance as part of a referendum or initiative petition invalidated such petitions. For example, in Nelson v. Carlson , the primary issue on appeal was whether a referendum petition was invalid due to a failure to attach a copy We are prepared to submit affidavits from signors of the petition that verify that the General Plan was not attached to the petitions they signed. However,we understand that such deficiencies are apparent on their face since none of the petitions submitted to the City Clerk have a General Plan attached to them. RVPUB\MXM1680752.2 -tell of the General Plan to the petition. (Neslon v. Carlson (1993) 17 Cal.App.4"' 73.) In Nelson v. Carlson, the referendum proponents sought to challenge the city council's passage of a resolution adopting a general plan and local coastal plan amendment (Id. at 735.) The Court of Appeal held that the failure of the referendum proponents to attach the general plan to the referendum petition was improper and invalidated the petitions even though the plan was several hundred pages long, and even if copies of the plan were available at the table where petitions signatures were gathered. (Id. at 741.) The court's reasoning on this issue is instructive: `Another reason for requiring the entire plan be attached to the referendum petition is the importance of the general plan. The Legislature has developed a comprehensive scheme covering its development, adoption and amendment. Every city is required to prepare and adopt one. It must include a detailed discussion covering the cty's land use, circulation, housing, conservation, noise and safety, along with `a statement of development policies and shall include a diagram or diagrams and text setting forth objectives, principles, standards, and plan proposals.'Once adopted, the cty's zoning ordinances must be consistent with the general plan's objectives, policies, land uses and programs. Attaching the entire plan allows prospective petition signors to consider whether they are comfortable proposing the repeal of such an extensive and important document that is so expensive to prepare. As a practical matter no city can function without it."(Citations Omitted.) Likewise here, the proponents of the Initiative failed to attach a copy of the City's General Plan to the petitions even though the Initiative proposes to add an entire new land use category and to delete other substantive portions of the City's General Plan 2 Such an omission misleads the public by concealing the Initiative's extensive scope and it's impact on other equally important elements and policies. Finally, we note that the Initiative proposes to amend the City's Zoning Ordinance. Section 3.2A.9 of the Initiative notes that "[U]pon the effective date of the Initiative Measure, the City Zoning Code and Zoning Map shall be amended to create a new zoning classification designated Mountain Region ("MTN")...." Again, amendment of the Zoning Ordinance is never mentioned in the title of the Initiative and no part of the Zoning Ordinance or Zoning Map is attached to the petitions. THE MOUNTAIN PRESERVATION INITIATIVE IS INCONSISTENT WITH THE CITY'S GENERAL PLAN California Government Code, §65300.5 provides that a general plan and its elements must comprise "an integrated, internally consistent and compatible statement of policies...." Further, the data, assumptions, and projections (e.g. for population, housing and jobs) used in various parts of the general plan must be consistent with one 2 The Initiative petitions also did not attach the City's Zoning Ordinance or Zoning Map even though the Initiative purports to amend both.(See Initiative Section 3.2A.9 noting that"Mpon the effective date of this Initiative Measure,the City Zoning Code and Zoning Map shall be amended to create a new zoning classification designated Mountain Region("MTN")....") RVPUB\MXM\680752.2 another. (Cal.Gov.Code, §65300.5.)An element might be found inconsistent if it proposes a specific implementation measure without supplying underlying policies to justify the need for the measure. (Murrietta Valley Unified Sch. Dist. v. County of Riverside (1991) 228 Cal.App.3d 1212, 1235.) The Initiative, when compared to other parts of the City's General Plan, is replete with inconsistent policies, data and assumptions. Such inconsistencies leave the City's General Plan internally inconsistent. For example, the Initiative contains strict density limitations, building controls and development standards that are inconsistent with the City's adopted Housing Element or State Housing policy mandating the elimination of local policies that constrain the development of housing needed to satisfy the City's regional share. (See Cal.Gov.Code, §§65583 (a)(4) & (5).). Moreover, it is not clear whether the reduction of density mandated by the Initiative leaves the City with sufficient sites to accommodate its share of regional housing needs. (See Cal.Gov.Code, §65583(c)(1).) Other examples of potential inconsistencies with the City's General Plan include the following: 1. Inconsistency with Policy 3.3.5 which allows for increased building height where it can be demonstrated that no significant impacts result from the increased height. The Initiative restricts building height in all cases and under any circumstance for property located with the MTN designation. 2. Inconsistency with Policy 3.32.1/3.32.2/3.32.3. These policies discuss the development policies and density targets for development of property in the current "Conservation," "Desert" and "Watercourse" land use designations. However, it appears that all of these designations have been replaced with the "MTN" land use designation. Thus, it is not clear to what extent these land use designations remain applicable elsewhere in the City. 3. Inconsistency with Policy 1.D.2 which notes that no formal City growth limitations are currently in force or contemplated. The Initiative contains growth limitations which substantially reduce the permitted density in several land use designations. Finally, we note that the Initiative does not contain any specific statement concerning its consistency with the City's General Plan. These deficiencies make the Initiative fatally defective. THE INITIATIVE VIOLATES STATE PLANNING AND ZONING LAW We believe the Initiative violates California law in at least two (2) respects. First, the Initiative does not comply with Government Code, §65863 concerning a city's obligation to meet regional housing needs. Subsection (b) of§65863 provides that "[N]o city ... shall, by administrative, quasi-judicial, or legislative action, reduce, require, or permit the reduction of the residential density for any parcel to a lower residential density that is below the density that was utilized by the Department of Housing and Community Development in determining compliance with housing element law...unless the city ...makes written findings supported by substantial evidence of both of the RVPUB\MXM680752.2 following: (1) The reduction is consistent with the adopted general plan, including the housing element. (2) The remaining sites identified in the housing element are adequate to accommodate the jurisdiction's share of the regional housing need pursuant to Section 655864...." The Initiative measure proposes severe density reductions on properties placed in the MTN designation without determining whether such reductions are consistent with the adopted housing element. Further, while the Initiative contains a finding that "...there is sufficient undeveloped land area available on the desert valley floor, which is zoned for residential development, to allow for the construction of housing and the satisfaction of any obligation of the City to provide for the housing needs in the region" (See Section 1(f)), this finding does not meet the requirements of Government Code, §65863. Second, the Initiative frustrates the ability of the City to comply with the State's granny flat and second unit development requirements. (Cal.Gov.Code, §65852.1, §65852.150 & §65852.2.) The City's efforts at complying with these housing directives is frustrated because the Initiative limits development of property to "single-family residences" only. (See Section 2, Objective 3.2A.1.) According to the Initiative, "[N]o other development or land use shall be allowed." Thus, a property owner that wishes to construct a granny flat or second unit would be prohibited from doing so by the Initiative, despite the strong and overwhelming state policy that directs cities to permit these structures. For these reasons and other defects in the Initiative not discussed in this letter, we believe the Initiative measure could be found invalid if challenged and should not be placed on the ballot. At the very least, we suggest that the City Council avail itself of the provisions of Elections Code, §9212, which authorize city councils to refer an initiative measure to city agencies for a report as to its fiscal impacts, its effect on the internal consistency of a city's general plan, its effect on the use of land or any other matters the city council requests. We appreciate the opportunity to provide you with our attorney's analysis of the Initiative and will make them available if requested to discuss this matter in more detail with you. Very Truly Yours,j� R r /,ffJ Ziva Hillinger , 1 c David J. Aleshire, Esq. City Attorney RVPUB\MYM\680752.2 10I06/2004 16: 19 3103148050 CHATTEN-BROWN&ASSOCI PAGE 01,105 FAx TRANsmisSION CHATTEN-BROWN&ASSOCIATES 3250 OCEAN PART{BOULEVARD,SUITF 300 SANTA MONICA,CALIFORNIA 90405-3219 TsL:(310)314-8040 Fax:(310)H 14-304 EMML:C3A`QQCBAEART14LAW.00M To: Patricia A. Sanders, City Clerk Date: Oct. 6, 2004 Fax#: (760) 322-8332 Pages: 5, (Including this cover sheet) From: Douglas P. Carstens Subject Letter If there are any problems with this transmission,please call (MG)3144040 �a 10/06/2004 16:19 3103148050 CHATTEN-BROWN&ASSOCI PAGE 02/25 TELEPHONA:(310)3[4.8040 CH.t TMN-BROWN&Assocu.TEs PACSIMILE: (310)314-8Q50 3250 OCEAN PARK BOULEVARD E_inall: SUITE 300 t)?Q4CBAEAPTkMAw.00M SANTA MOIN(CA,CALIFORNIA 90405 October 6, 2004 By Facsimile Original to follow in U.S. Mail Honorable Mayor and City CoLutoil City of Palm Springs 3200 E. Tal3goitz Canyon Way Palm Springs, CA 92262 Re: Certification of Mountain Preservation Initiative; Item 16, October 6, 2004 Council Meeting Dear Mayor and Councilmembers: 1W write on behalf of our client, the Friends of the Palm Springs Mountains because the letter to you front.Ms. Ziva Hillinger requests that the City Council refrain I rom putting the Mountain Preservation Initiative on the ballot. The basis for Ms. Rillin,ger's rendering a detailed legal opinion about the Initiative is unclear. At the end of the letter she states "VVe appreciate the opportunity to provide you with our attorney's analysis of the initiative and will make them available if requested to discuss this matter in more detail with you." However, it is difficult to understand why, if this was an attorney's legal analysis, it was not simply forwarded from that attorney. The letter argues there are defects in the Initiative or its petition process that would prevent it from being presented to the voters. Such contentions are meritless, and in any case, you do not have the discretion to refrain from putting the Initiative on the ballot. The City Council Has No Discretion to Withhold the Initiative from the Ballot, Given the fact that the County Clerk has certified the sufficiency of the signatures required for the petition, the City is legally bound to order that it be placed on the ballot. A City's duty to process an initiative is ministerial and its power to reject an initiative petition containing the requisite number of signatures is limited to determining whether there has been compliance with formal procedural requirements. (McFadden v. Jordan (1948) 32 Cal.2d 330, 332.) 10/06/2004 16:19 3103148050 CHATTEN-BROWN&ASSOCI PAGE 03105 Mayor and City Council City of Palm Springs October 6, 2004 Page 2 of 4 The law is clear. "A local government is not empowered to refuse to place a duty certified initiative on the ballot." (Save Stanislaus Farm Economy V. Board of Supervisors (1993) 13 Cal.App.41" 141, 148) If the City believes there are defects m the Initiative or its approval process, the City or the Initiative's opponents must seek judicial relief to prevent the Initiative from being be presented to the voters: "the registrar must place it on the ballot unless he is directed to do otherwise by a court on a compelling showing that a proper case has been established, for interfering with the initiative power." (Farley v. ,Healey (1967) 67 Cal.2d 325, 327.) The Circulation Process Was Proper and It Was Not Necessary to Circulate the General Plan. Ms. Hetlinger claims that defects she perceives in the Initiative require that it must be withheld from the ballot. Contrary to Ms. Hettinger's desire to deprive the electorate of its chance to vote on the Initiative, courts will "jealously guard" the people's right to exercise their reserved power of initiative so as not to improperly annul its exercise. (DeVita v, County of Napa (1995) 9 CalAth 763, 775-776). The City should be no less willing to "jealously guard"the right of the people to put a matter to the electorate. A ,reviewing court will only determine an initiative measure is inconsistent with requirements of the Elections Code upon clear and convincing proof: A peremptory writ of mandate . . . shall be issued only upon clear and convincing proof that the material in question is false, misleading, or inconsistent with the requirements of this chapter, and that issuance of the writ , will not substantially interfere with the printing or distribution of official election materials as provided by law. ('l lec. Code, § 9295, subd. (b)(2).) Eased on an overly broad interpretation of the Court of Appeal's decision in Nelson v. Carlson (1993) 17 Cal.App.4t'735, Ms. Hettinger claims the Mountains Conservation initiative fails to include the full text of the measure. This assertion is legally and factually incorrect. The California Supreme Court has stated the proper inquiry . . . in determining whether a petition, is valid despite an alleged defect is whether the purpose of the technical requirement is frustrated by the defective form of the petition. (Assembly v. Deukmejian (1982) 30 Cal.3d 638, 652.) Here, those 10/06/2004 16:19 310314805E CHATTEN-BROWN&ASSOCI PAGE 04105 Mayor and City Council City of Palm Springs October 6, 2004 Page 3 of 4 circulating and signing the Initiative had all ,necessary information. The Initiative included the text of all relevant portions of the General Plan because it attached as Exhibit B those portions of the General Plan that the Initiative would delete. To require that the full General Plan be attached, when no other part of it would be affected, would be unnecessary, unreasonably burdensome, and confusing to the public, As the court pointed out in a case decided after Nelson v. Carlson, The purpose of the full text requirement is to provide sufficient information so that registered voters can intelligently evaluate whether to sign,the initiative petition and to avoid confusion. (Mervyn's v. Reyes (1998) 69 Ca1.App.4`h 93, 99.) The relevant or"key" provision of the initiative pleasure under review in the Mervyn;s case read, The people hereby re-enact the open space land use designations (Parks and Recreation, Baylauds Limited Open Space) of the General Policies Plan Map and the supporting policies in Chapter VII: Open Space, Parks and Recreation, Chapter VII: Environmental Concerns and Chapter IX: Urban Design of the General Policies Plan of the City of Hayward in effect on January 1, 1996. (Id. at pp. 96-97.) Anyone reading this passage was left to wonder what the policies were, because as the Court of Appeal pointed out, no part of the actual text of the policies was included in the initiative ,measure. In contrast, in the present case, the Initiative sets forth the complete text of the Initiative itself, as well as the complete text of the portions of the General Plan that would be deleted by the Initiative. Therefore, neither Nelson V. Carlson nor any other case supports the conclusion that the Initiative failed to comply with the requirement to circulate necessary information with the Initiative. The Initiative is Not Inconsistent with the General ,Plan. The allegations that the Initiative is somehow inconsistent with the City's General Plan are wrong and do not provide any basis for refusing to submit the Initiative to the voters. The Initiative is consistent with the City's General Plan. A finding of consistency requires only that the proposed project be compatible with the objectives, policies, general land uses and programs specified in the general plan. (San Franciscans Upholding the.Downtown Plan v. City and County of San Francisco (2002) 102 Ca1.App.4th 656, 678.) The courts have interpreted this requirement to mean that a project must be in agreement or harmony with the applicable general plan, "not in rigid 10/06/2004 16:19 3103148050 CHATTEN-BROWN&ASSOCI PAGE 05/05 Mayor and City Council City of Palm Springs October 6, 2004 Page 4 of 4 conformity with every detail thereof. CCitations.]" (Ibid.) Policy 3.3.5 alight allow increased building heights, but it does not mandate them. Policies 3.32.1, 3.32.2, and 3.32.3 might'provide density targets but they do not mandate them. Policy l.D.2 notes no formal City growth limitations are currently in force, but does not foreclose the possibility that such limitations would be adopted. Similarly, the allegation that the Initiative somehow violated Planning and Zoning Law is wrong. The letter does not explain, where there is error in the explicit finding of the Initiative that "there is sufficient'undeveloped land area available on the desert valley floor, which is zoned for residential development, to allow for the construction of housing and the satisfaction of any obligation of the City to provide for the housing needs in the region" (Initiative, section I(f).) In fact, the Initiative is compatible with Planning and .Zoning law. The letter provides no valid basis to conclude otherwise. Any .Review of The Initiative Should Re Conducted After the Election. Even,if there were colorable arguments relating to the contentions of inconsistency with the general plan or Planning and Zoning Law, and there are not, such detenninatio,ns are to be made after an election by the courts. The Supreme Court has stated.- As we have frequently observed, it is usually more appropriate to-review constitutional and other challenges to ballot propositions or initiative measures after an election rather than to disrupt the electoral process by preventing the exercise of the people's franchise, in the absence of Some clear showing of invalidity. . . . The general rule favoring post-election review contemplates that no serious consequences will result if consideration of the validity of a measure is delayed until after an election. (Legislature v. ,Deukmejian (1983) 34 Cal.3d 658, 665-666.) Conclusion We therefore ask that you not allow the baseless assertions made by the opponents of the Initiative to dissuade you from flilftlli,ng your duty to allow the voters of the City to decide whether to adopt the Initiative. The Initiative must be placed on the ballot. Thank you for your anticipated cooperation in this matter. Sin, rely, ouglas . 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