BALLOT BOX PLANNING PART II

As discussed in Part One of our Ballot Box Planning E-Alert series, California is not likely to see a reduction in land use initiatives and referenda. Part One provided a broad overview of, and introduction to, ballot box planning. This Part Two discusses certain "nuts and bolts" of initiatives and referenda, including specific strategies and potential pitfalls. The extent of this subject matter is nearly limitless; in this E-Alert, we have chosen five particular aspects of the ballot measure process to discuss.

1. Be Sure To Meet Both Substantive And Formatting Requirements In Drafting The Initiative Petition.
While the initiative process in a general law city or county officially "commences" when the proponents of the initiative submit to the clerk the form of the initiative petition, request a ballot title and summary, and file a notice of intent to circulate the petition, the real work is in preparing both the substantive text and the procedural format of the petition before that submission is made. Substantive requirements in the initiative text include, for example, not creating any internal inconsistencies with the existing general plan, addressing only a single subject, addressing only "legislative," rather than "adjudicatory," matters and not delving into areas of exclusive delegation.

In addition to substantive requirements, the initiative petition also must be "packaged" correctly. Procedural/formatting requirements include, for example, inserting the city attorney’s summary and title on each signature page of the petition, including a copy of the published notice of intention to circulate on each section of the petition, and making sure margins and fonts are the correct size. It is important for initiative drafters to conform to these formatting requirements. If this is not done, the petition can be rejected by the elections official, and would then have to be corrected and resubmitted. Having to resubmit because of a technical formatting can be very damaging when the result is lost time under an already tight schedule.

In addition, making sure the initiative is both substantively and procedurally correct will help protect the initiative against legal challenges, as discussed below in Section 3.

2. How To Use A Competing Ballot Measure To Your Advantage.
The laws place no limits on the number of ballot measures that may be voted on in the same election. When identical provisions in two different initiative measures are in conflict, the provision in the measure receiving the most votes takes precedence. A city/county may refuse to give legal effect to an initiative that is inconsistent with another measure that received more votes, when both are passed.

A party or a local legislative body that opposes a ballot measure may consider proposing a rival measure. This could be done, for example, if a general growth-control measure is on the ballot, and there is local sympathy for a particular project that would be prevented by the growth-control measure. In such a case, a properly drafted second initiative may exempt the project from the growth control, if it receives more votes.

3. Deciding If And When To Bring A Legal Challenge To A Ballot Measure.
A key strategic issue in the ballot measure process is deciding if and when to bring a legal challenge to the initiative or referendum. Challenges alleging technical/procedural defects relating to the petition or other pre-election activity must be brought prior to the election, or the challenge will be deemed moot.

In contrast, courts have been reluctant to grant pre-election review of substantive challenges; however, this is not an inflexible rule. For example, where the substantive invalidity appears on the face of the measure, courts are sometimes willing to step in and prevent the measure from being placed on—or to remove it from—the ballot. Pre-election challenges to the substantive provisions of a ballot measure also will be countenanced by the courts where the petition contains false or misleading information. In situations where the invalidity is not so clear, it is difficult to anticipate whether the court will accept a pre-election challenge.

A court may be more willing to recognize a procedural defect and halt the election when it realizes that substantive defects also exist that would doom the measure. In such circumstances, the court may recognize the “efficiency” of invalidating the measure early instead of incurring an expensive, time-consuming election, only to overturn the measure later. For this reason, we suggest that a challenge to a measure based on both procedural and substantive grounds be considered prior to the election.

4. How To Protect Projects From Ballot Measures: Vested Rights.
The voters have far-reaching powers with regard to regulating land use. However, these powers are greatly diminished with regard to a specific piece of property once a right to develop that land “vests.” When a developer has a vested right to develop, that developer may be protected from subsequent governmental actions that would preclude or adversely impair that development. Thus, securing a vested right to develop prior to enactment of a ballot measure can protect a project from that ballot measure.

Developers can acquire vested rights through common law, through a development agreement, and through a vesting map. All three of these vesting mechanisms can give developers protection against subsequently enacted amendments to local regulations such as the general plan or zoning ordinance.

Choosing whether to vest a project with common law rights, or earlier with a development agreement or with a vesting tentative map, can depend on the political climate of the local community. If the project proponent is concerned that project opponents may try to overturn the project's approvals through the use of a referendum, a vesting tentative map, rather than a development agreement should be used. A vesting tentative map approval is an adjudicatory act, and therefore is not subject to referendum. The approval of a development agreement is, however, subject to referendum. Further, common law vested rights tend to be later in the process and more limited in their scope.

5. How And When CEQA Applies In The Ballot Measure Process.
Normally, CEQA compliance must precede agency action on land use ordinances and resolutions. However, although CEQA requires environmental review for “discretionary projects proposed to be carried out or approved by public agencies,” CEQA does not apply to voter-sponsored ballot measures.

In contrast, when a city council or board of supervisors wishes to submit their own ballot measure to the voters, CEQA compliance is required. However, there may be ways around this requirement. For example, instead of placing their own measure, a city council or board of supervisors might solicit certain constituents to bring such a measure. Again, such a voter petition is not subject to CEQA. Or, the city or county might anticipate the need for CEQA compliance, and secure such compliance early in the process before it places its measure on the ballot.

** Much of the information in this E-Alert comes from the Ballot Box Navigator: A Practical and Tactical Guide to Land Use Initiatives and Referenda in California (Solano Press Books 2003). Mike Durkee and David Blackwell of Allen Matkins' San Francisco offices are two of the co-authors of the Ballot Box Navigator. The Ballot Box Navigator can be purchased at: http://www.solano.com/catalog.htm.