[highlight in bold green type added] 
LEGISLATIVE COUNSEL OF CALIFORNIA
Bion. M. Gregory
State Capitol 3021
Sacramento California, 95814-4996

July 11, 2000

Honorable Virginia R. Strom-Martin
3146 State Capitol

SONOMA COUNTY: LAND USE INITIATIVE - #12593

Dear Ms. Strom-Martin:

You have asked the four questions stated and considered separately below regarding the proposed Sonoma County initiative measure known as "The Rural Heritage Initiative" (hereafter the initiative), which may be submitted to the voters of Sonoma County if a sufficient number of the signatures that have been submitted to the Sonoma County Clerk are verified on or before August 11, 2000.

I. VOTER APPROVAL

          The first question is what types of proposed land uses would require voter approval.

          Subdivision G of Section 1 of the initiative sets forth the purposes and findings of the initiative. It states that, until December 31, 2030, in order to secure the initiative's stated purposes of protecting Sonoma County's rural heritage, preserving open space, controlling urban sprawl. and protecting agricultural lands, the initiative would amend the Sonoma County General Plan (hereafter the general plan) to require voter approval for any general plan amendment that (1) redesignates lands currently designated for agricultural or resource-dependent uses to another use or (2) increases residential densities on agricultural or rural resource lands, subject to certain limited exceptions.
          More specifically, the initiative would, in part, add provisions to the general plan that would be designated as Policy LU-8e, which reads as follows:

"LU-8e Limitation on General Plan Amendments Related to Lands Designated as 'Land Intensive Agriculture.' 'Land Extensive Agriculture' and 'Diverse Agriculture' 
"1. Until December 31, 2030, any General Plan amendment that would amend the land use designation or increase the density of any lands that, as of March 3, 2000, are designated as 'Land Intensive Agriculture,' 'Land Extensive Agriculture,' or 'Diverse Agriculture' shall require: (i) passage of a ballot measure approved by a majority of voters voting; or (ii) Board approval pursuant to the procedures set forth in subparagraphs (a) through (d), below: 
"a. The Board [of Supervisors of Sonoma County] may amend the General Plan, pursuant to its usual procedures, to: (i) decrease the density allowed on any such lands; (ii) redesignate any such lands to the 'Resources and Rural Development' land use designation or to another designation providing greater protection for natural resources than provided by the pre-existing designation; or (iii) redesignate any such lands to the 'Public/Quasi Public' land use designation; provided that the General Plan amendment redesignating any such lands allows only for: (A) parks restricted primarily to non-intrusive recreational or educational uses such as hiking and nature study; (B) fire stations, police stations, and related public safety facilities such as those required for emergency telecommunications; or (C) other public facilities needed to protect the public health or safety, provided that the Board, by four-fifths vote, first finds, on the basis of substantial evidence, both that the failure to provide such needed public facilities would have a specific immediate, adverse impact, upon the public health or safety, and that there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact without redesignating such lands; 

"b, The Board may amend the General Plan to redesignate land designated as 'Land Intensive Agriculture,' 'Land Extensive Agriculture,' or 'Diverse Agriculture' to another land use designation, or to increase the density for such lands, if each of the following conditions is satisfied:

"(i) Upon request of an affected landowner, and after considering all relevant facts and applicable legislative and judicial authority, the Board finds that, based on substantial evidence in the record, denial of the amendment would constitute an unconstitutional taking of the landowner's property for which compensation would be required; and
"(ii) In permitting the amendment, the Board allows only the minimum additional land uses and minimum additional density of development necessary to avoid said unconstitutional taking.
"c. The Board may amend the General Plan to redesignate land designated as 'Land Intensive Agriculture,' 'Land Extensive Agriculture.' or 'Diverse Agriculture' to another land use designation, or to increase  the density for such lands, in order to comply with state law regarding the provision of housing for all economic segments of the community. Such amendment may be adopted only if the Board makes each of the following findings based on substantial evidence in the record:
"(i) Incorporation or annexation to a city or town is not appropriate or possible within the next five years based on factors including, but not limited to, nearby cities' designated sphere of influence boundaries, city general plan limits and projections, and urban growth boundaries; and
"(ii) There is no suitable land available in any designation other than 'Land Intensive Agriculture,' Land Extensive Agriculture.' 'Diverse Agriculture.' or 'Resources and Rural Development' to accommodate the proposed development; and
"(iii) The land that would be redesignated is immediately adjacent to areas already developed in a manner comparable to the proposed use or, if no suitable land is available that satisfies this criterion, the land that would be redesignated is the suitable land closest to existing comparably developed areas; and
"(iv) The applicant for the redesignation has provided evidence that the agencies and districts responsible for providing tire protection, police protection, public works, water, and other public services have adequate capacity cc provide the proposed development with adequate public services; and
"(v) The development that would be authorized in connection with the redesignation is necessary to comply with state law requirements for provision of low and very low income housing; and
"(vi) The proposed development or redesignation will not have direct, indirect, or cumulative significant adverse impacts to the area's agricultural viability; and
"(vii) The proposed development is consistent with agricultural uses, does not interfere with accepted agricultural practices, and will riot adversely affect the stability of land use patterns in the area (i.e., will not introduce or facilitate a use chat is incompatible with adjoining or nearby uses or that would tend to promote additional redesignation in the area); and
"(viii) The land proposed for redesignation is not prime agricultural land, has not been used for agricultural purposes iii the past two (2) years, and is unusable for agriculture due to its topography, drainage, flooding, adverse soil conditions or other physical reasons. For purposes of this subparagraph (viii). 'prime agricultural land' means any of the following: 
"(a) All land that qualifies for rating as class I or class II in the Natural Resource Conservation Service land use capability classifications.
"(b) Land which qualifies for rating 80 through 100 in the Stone Index Rating.
"(c) Land which supports livestock used for the production of food and fiber and which has an annual carrying capacity equivalent to at least one animal unit per acre as defined by the United States Department of Agriculture.
"(d) Land planted with fruit or nut-bearing trees, vines, bushes or crops which have a nonbearing period of less than five years and which will normally return during the commercial bearing period on an annual basis from the production of unprocessed agricultural plant production not less than two hundred dollars ($200) per acre.
"(e) Land which has returned from the production of unprocessed agricultural plant products an annual gross value of not less than two hundred dollars ($200) per acre for three of the previous five years; and
"(ix) The land redesignated does not exceed 40 acres for any one landowner in any five (5) year period. Landowners with any unity of interest are considered one landowner for purposes of this limitation.
"d. Prior to amending the General Plan to redesignate land or to increase density pursuant to subparagraphs a, b, or c, above, the Board shall hold at least one noticed public hearing for the purpose of receiving testimony and evidence from the applicant and the public on the proposed amendment and any findings proposed in connection with such amendment. This hearing shall be in addition to any public hearings regularly required for a General Plan amendment."
          The quoted provisions, which are designated as Policy LU-8e, generally limit the redesignation or any increase in the density of agricultural lands.  Separate, but generally similar, restrictions would limit the redesignation or any increase in the density of lands designated as "Resources and Rural Development" (proposed Sec. 2.8.2, the general plan).
          Thus, the initiative would, until December 31, 2030, with respect to lands that as of March 3, 2000, are designated as 'Land. Intensive Agriculture," "Land Extensive Agriculture." or "Diverse Agriculture," or as "Resources and Rural Development," require any amendment of. the land use designation or any increase in density to be approved by a majority of the voters, unless the Board of Supervisors of Sonoma County, pursuant to specified procedures, does one of the following:
           (1) Decreases the allowed density (Policy LU-8e(1)(a) and Sec. 2.8.2(1)(a), the initiative).
           (2) Redesignates agricultural land to "resources and rural development" or to another designation more protective of resources, or redesignates the land to certain public or quasi-public uses like parks having certain nonintrusive uses, public safety facilities, or other public facilities needed to protect~ health and safety (Ibid.).
           (3) Finds that denial of a change to another land use designation or an increase of density would be an unconstitutional taking of the landowner's property (Policy LU-8e(1)(b) and Sec. 2.8.2(1)(b), the initiative).,
           (4) Redesignates the land or increases the density to comply with state law requiring the provision of housing for all economic segments of the community, after making several findings relating to the likelihood of annexation, the availability of other land, the uses of adjacent land, the capacity of public services, compliance with state law relating to low and very low income housing, impact on agriculture or resources, and size of the land (Policy LU-8e(1)(c) and Sec. 2.8.2(1)(c), the initiative).
          Except as previously described, the initiative does not specifically enumerate other land uses for which redesignation would requite voter approval. However, pursuant to a fundamental rule of statutory construction, when a statute is general in its terms, any exemption or exception from its operation must be specific (Railway Corp. v. Flood Control Dist. (1926) 78 Cal.App. 173, 182). The initiative enumerates certain specific uses that would not require voter approval if the appropriate procedures are followed, and otherwise requires that amendment of the land use designation or an increase in density of "any lands" be approved by a majority of the voters.
          Therefore, in our opinion, the redesignation of any agricultural or resources lands to any of the various residential, commercial, industrial, or other land uses that are specified in the general plan (see Secs. 2.3 to 2.8.1, incl., the general plan, March 23, 1989, as revised March 1, 1994) that are not specifically excluded from the initiative would require voter approval.

II.  IMPACT OF INITIATIVE

          The second question is what impact would the initiative have, and what limits would be imposed, on farmers, developers, and the county planning process.
          As previously discussed, the initiative is directed generally toward limiting the redesignation of agricultural or resources land, and increases in density on those lands. It does not specifically place limits on "farmers" or "developers" but rather imposes restrictions that would apply generally to any person who seeks a restricted redesignation or density increase.
          However, in various provisions of Section 1 of the initiative that set forth its purposes and findings, reference is made to farming and development. It states the intent to restrict sprawling development on "forest, woodland, agricultural, open space, scenic, and biotic resources" (subd. (A), Sec. 1, the initiative). It finds that farmers "depend on the County's open space and scenic attributes to market their agricultural products" (subd. (B), Sec.1, the initiative). It states that sprawling development poses various environmental threats and "undercuts the viability of existing agriculture" and that Sonoma County's huge supply of flat agricultural land is next in line for growth pressure from built-out northern Santa Clara County (Silicon Valley) (subd. (C), Sec. 1, the initiative). It states that protection of the extent and diversity of existing agricultural lands is critically important because that land occupies half the county's land area and one-fifth of the dollar value of its economy (subd. (D), Sec. 1, the initiative). It states that the initiative "will limit potential urban development in wildlife corridors and riparian and woodland habitat" (subd. (F), Sec. 1, the initiative). On the other hand, it recognizes the demand for housing and the need for the county to accommodate its share of future growth and states that the initiative will allow the county to continue to meet its housing needs for all economic segments of the population (subd. (E), Sec. 1, the initiative). The initiative "supports the General Plan goals of compact, city-centered growth by directing residential development away from agricultural and natural resource lands and into City Urban Growth Boundaries" (Ibid.).
          In this regard, the Legislature has declared that "(local and state governments have a responsibility to use the powers vested in them to facilitate the improvement and development of housing to make adequate provision for the housing needs of all economic segments of the community" (subd. (d), Sec. 65580, Gov. C). Section 50451 of the Health and Safety Code requires the California Statewide Housing Plan to incorporate a statement of housing goals, policies, and objectives, as well as, among other things, "[a]n evaluation and summary of housing conditions throughout the state, with particular emphasis upon the availability of housing for all economic segments of the state." Section 65583 of the Government Code requires the housing element of the general plan to consist of an identification and analysis of existing and projected housing needs and a statement of goals, policies, quantified objectives, financial resources, and scheduled programs for the preservation, improvement, and development of housing ... ," to "identify adequate sites for housing, including rental housing, factory-built housing, and mobilehomes," and to "make adequate provision for the existing and projected needs of all economic segments of the community" (see also specific requirements in subd. (c), Sec. 65583, Gov. C.; Sec. 65584, Gay. C., setting forth requirements for determining a city's or county's share of regional housing needs; and subd. (a), Sec. 65913.2, Gov. C., prohibiting design criteria that would make housing for all segments of the community infeasible).
          In light of the statements of intent and findings in Section 1 of the initiative, it appears that, in practical effect, the initiative would generally require voter approval for any change in the designation of land that would tend to move the county away from its agricultural base, while at the same time permitting development under certain conditions without voter approval that, among other things, meets the requirements of state law pertaining to housing for all segments of the community. Thus, the initiative would appear to have little direct effect on farmers who continue their farming activities, while perhaps having the indirect effect of encouraging them to continue to do so, lest they are caught up in the additional procedural requirements of the initiative for redesignation of land should it be sold or converted to other purposes. On the other hand, with regard to developers, the initiative would appear to have the possible limiting effect of channeling or tracking their activities away from forms of development that increase sprawl and rely heavily on the conversion of agricultural or resources land, and toward development close to already urbanized areas that meet specific housing needs.
          As to what effect the initiative would have on the county planning process, one evident effect arises from the requirement that when the county board of supervisors proposes to amend the general plan without voter approval as provided by the initiative, it must first make various findings based on substantial evidence in the record relating to the likelihood of annexation, the availability of other land, the uses of adjacent land, the capacity of public services, compliance with state law relating to low and very low income housing, impact on agriculture or resources, and size of the land (Policy LU-8e(1)(a) and (c), the initiative). The board would be required to hold a public hearing regarding the proposed amendment and the proposed findings (Policy LU-8e(1)(d), the initiative). Also, the county and its departments, boards, commissions, officers, and employees would be prohibited from granting any general plan amendment, rezoning, specific plan, tentative or final subdivision map, conditional use permit, or any other discretionary entitlement that is inconsistent with the initiative (Policy LU-8e(2), the initiative).
          Thus, in summary, the initiative would affect farmers only to the extent that they become involved in a proposal to redesignate farmland in a manner restricted by the initiative. The initiative would affect developers generally by limiting development without voter approval to certain activities in the urban area or pertaining to the provision of housing for all economic segments of the economy. Also; all county agencies involved in the county planning process would have to comply with the requirements of the initiative regarding findings to be made in connection with redesignation or an increase in the density of land subject to the initiative.

III.  PREEMPTION

          The third question is would any provisions of the initiative conflict with and therefore be preempted by state law, This question raises the following three issues: whether a general plan or zoning ordinance may be lawfully amended by initiative; if so, whether the proposed initiative would be preempted by state law because it pertains to a matter of statewide concern; and whether the voter approval requirement In the initiative for the redesignation of lands would be valid.

A. May a general plan or zoning ordinance be lawfully amended by initiative?
          Before discussing preemption specifically, we shall first consider the extent to which an initiative of the kind in question constitutes a lawful exercise of the initiative power reserved by the people in Section 1 of Article IV of the California Constitution, and further addressed in Section 11 of Article II of the California Constitution, which requires the Legislature to provide procedures for the electors of a city or county to exercise the powers of initiative and referendum (see, for example, Art. 1. (commencing with Sec. 3700), Ch. 2, Div. 5, Elec. C,).
          In this regard, the courts have considered the question of whether zoning ordinances and general plans are appropriate subjects of initiative and referendum1.  The general rule is that these planning tools are within the scope of initiative and referendum powers, except when the existence of a statewide concern, or a delegation of authority to a specific local entity supersedes the initiative power. This rule, and its exceptions, are discussed more fully below.
          Central to our analysis is whether statutes giving the "legislative body" of a city or county the power to adopt or amend a general plan or zoning ordinance contemplate the inclusion of the initiative and referendum processes as a means to these ends. Specifically, Section 65358 of the Government Code gives the legislative body the power to amend all or part of an adopted general plan and Section 65802 of the Government Code recognizes the power of the legislative body to enact or amend zoning ordinances (see also Secs. 65853, 65856, and 65860, Gov. C.). Case law supports the interpretation of the term "legislative body" as embracing the electorate, by means of initiative, as well as more, traditional entities.
          This precise issue was extensively considered by the California Supreme Court in Committee of Seven Thousand v. Superior Court (1988) 45 Cal.3d 491 (hereafter Committee of Seven Thousand), in which a proposed initiative requited voter approval before the imposition or collection of certain fees and razes to finance highway construction. In Committee of Seven Thousand Committee of Seven Thousand, the court reviewed prior decisions relating to "whether the statutory reference to action by a local legislative body indicates a legislative intent to preclude action on the same subject by the electorate," and concluded that generic references to a "legislative body" or "governing body" should be interpreted to permit exercise of initiative or referendum, at least with relation to matters of purely local, as opposed to statewide concern (Id., at pp. 501-505). In that case, the relevant statute, Section 66484.3 of the Government Code, gave the Orange County Board of Supervisors and specified city councils the authority to establish fee programs for highway construction. The court ultimately invalidated the initiative, however, because it conflicted with the specific statutory reference to the board of supervisors and city councils in Section 66484.3 of the Government Code, and also because the court found the funding of construction of thoroughfares within the state highway system to be a matter of statewide concern (Committee of Seven Thousand Committee of Seven Thousand, supra, at pp. 500-507; see II, infra).
          The court in Committee of Seven Thousand Committee of Seven Thousand, supra, ser forth certain relevant criteria for determining the appropriateness of an initiative when a statute exists that grants particular power to a government entity.  Specifically, the court concluded that any reference to an entity of this kind creates a presumption that the Legislature intended to restrict the particular activity to the entity.  However, this presumption is considerably weakened when the statutory reference is genetic, for example, "legislative body" or "governing body" as opposed to a reference to a specific entity.  Finally, the subject matter of the initiative must be examined to determine whether it relates to a matter of statewide concern, and thus extends beyond the limits of local regulation.
          Subsequent to Committee of Seven Thousand Committee of Seven Thousand, the California Supreme Court issued its decision in DeVita v. County of Napa (1995) 9 Cal.4th 763 (hereafter DeVita). The issues in DeVita involved the validity of local initiative adopted by the county's voters to preserve agricultural land.  The initiative readopted portions of the general plan's land use element and restated certain policies of the general plan applicable to agricultural land classifications.  The measure also added a provision that explicitly restricted changes in agricultural land use without a vote of the people for a period of 30 years, except under certain specified conditions (Id., at p. 771).
          The California Supreme Court affirmed the judgment of the lower courts that the initiative was valid. It held that the local electorate's right to initiative and referendum is guaranteed by Section 11 of Article II of the California Constitution and is generally coextensive with the legislative power of the local governing body (Id., at p. 776).  The court held that Section 9111 of the Elections Code specifically recognizes that general plans can be amended by initiative, and that the planning law itself indicates that the Legislature did not intend to exclude the electorate from amending the general plan (Id., at p. 779).  The court held that the voters' enactment of the initiative was a valid use of the initiative power because none of the procedural requirements imposed on the local legislative body by the planning law indicated a legislative intent to limit the right to amend the general plan by initiative (Id., at p. 787).
          Also pertinent to the discussion here was the court's holding in DeVita that the initiative was valid despite the fact that the measure added a section to the land use element of the general plan providing that land use designations enacted by initiative could be changed during a 30-year period only by majority vote of the county electorate (Id., at pp. 776-799; see C, infra).
          In addition to Committee of Seven Thousand Committee of Seven Thousand and DeVita , there is abundant case law explicitly or implicitly approving the adoption or amendment of general plans and zoning ordinances by initiative (Carat v. City of Riverside (1991) 2 Cal.App.4th 259; Duran v. Cassidy (1972) 28 Cal.App.3d 574).
 Accordingly, we conclude that a general plan or zoning ordinance may be lawfully amended by initiative.  Therefore, as a general matter, it is our opinion that a proposed initiative that generally requires any redesignation of agricultural or resource dependent land to be approved by the voters would be valid, if enacted.  However, whether the initiative in question ultimately is valid depends upon resolution of the additional issues discussed below.
B. Would the proposed initiative be preempted by state law because it pertains to a matter of statewide concern?
          This question concerns whether the subject matter of the proposed initiative relates to a matter of statewide concern and thus extends beyond the limits of local regulation.  In essence, if the subject of an initiative measure touches an area preempted by state legislation, courts have consistently held the measure to be invalid (see, for example, L.I.F.E. Committee v. City of Lodi (1989) 213 Cal.App.3d 1139; hereafter L.I.F.E. Committee).
          The general proposition. is that local laws that conflict with general law are void, and a conflict is present if the local law duplicates, contradicts, or enters an area occupied by general law, either expressly or by implication (Cohen v. Board of Supervisors (1985) 40 CaL3d 277, 290; City of Dublin v. County of Alameda (1971). 14 Cal.App.3d 264, 276). For example, in L.I.F.E. Committee, supra, the Court of Appeal invalidated an initiative measure requiring that related general plan amendments be approved by the voters before certain greenbelt land could be annexed by the city. In that case, the court found that the Municipal Organization Act of 1977 "embodied the exclusive procedure for annexation of territory to a city."
          However, in Building Industry Association of San Diego v. Superior Court (1989) 211 Cal.App.3d 2772 (hereafter Building Industry), the Court of Appeal denied a petition for a writ of mandate to compel the superior court to grant summary judgment to the challengers of a residential growth control measure. Considering a contention that pervasive state regulation preempted the exercise of the initiative power with respect to zoning and planning ordinances, with regard to statewide and local concern, and citing Committee of Seven Thousand, the court concluded as follows:
"...[I]t is clear from the numerous statutes delegating local entities as the front line functionaries in the [planning] area that no state preemption precluding enactment of ordinances such as Ch. 32A is present in the field. There is in this scheme of [law] 'no legislative indication of "a paramount state concern [which] will not tolerate further or additional local action." ' " (Building Industry, supra, at p.295.)
          In further support of the exercise of the initiative power by a city's voters, the court in Building Industry, supra, at page 296, added that despite the authority of the Legislature to "...specify the manner in which general law cities enact ordinances restricting land use, legislation which permits council action, but effectively bars initiative action may run afoul of the (California Constitution]" (citing Livermore, supra, at p. 595). In this regard, the court also cited the California Supreme Court case of Yost v. Thomas (1984) 36 Cal.3d 561, which held that even the comprehensive statutory scheme embodied in the California Coastal Act (Sec. 30000 and following, P.R.C.) did not necessarily compel designation as a matter of statewide concern (Building Industry, supra, at P. 296).
          In the above cases, the courts looked for a legislative intent to preempt a particular area of law, in order to determine the existence of a matter of statewide concern.
 In the most recent case to consider these issues, the court in DeVita supra, ultimately concluded that the land use element of a general plan could be amended by initiative because the Legislature had no intention to restrict the power of initiative with respect to planning law, which defers to local autonomy (DeVita supra, at p. 784). However, in reaching that conclusion the court examined various factors.
          The presumption in favor of the right of initiative is rebuttable upon a definite indication that the Legislature, as part of its power to preempt all local legislation in matters of statewide concern, has intended to restrict that right (DeVita, supra, at p. 776). Accordingly, the initiative and, referendum power cannot be used in areas in which the local legislative body's discretion is largely preempted by statutory mandate (Ibid.). Further, the court in DeVita noted that in Committee of Seven Thousand it recognized that not all restrictions of the local initiative or referendum power arise from instances in which the governing body's legislative discretion is circumscribed (Ibid.).  In some cases the Legislature did not intend to restrict local legislative authority but to delegate the exercise of that authority exclusively to the governing body, thereby precluding initiative and referendum (Ibid.).
          "The state's plenary power over matters of statewide concern is sufficient authorization for legislation barring local exercise of initiative and referendum as to matters which have been specifically and exclusively delegated to a local legislative body" (Committee of Seven Thousand, supra, at pp. 511-512).
          However, the court in DeVita held that a general plan may be amended by initiative because there was no intent of the Legislature to restrict local legislative authority nor to delegate the exercise of that authority exclusively to the governing body (Devita, supra, at pp. 776-777).
          Thus, we conclude that the proposed initiative would not be preempted by state law.
C.  Would the voter approval requirement be valid?
          With regard to the validity of the provision in the initiative requiring voter approval for the redesignation of land, the court in DeVita was faced with the same issue. The court observed that Section 9125 of the Elections Code provides that initiative measures cannot be repealed "except by a vote of the people, unless provision is otherwise made in the original [initiative] ordinance," Thus, the redesignation of the agricultural land that was generally made subject to a vote of the people for a 30-year period by that measure, with specified exceptions3,  could generally have been accomplished only by voter approval in any case. Although subdivision (a) of Section 65358 of the Government Code provides that the legislative body may amend a general plan whenever it deems it to be in the public interest, that statute evinces no intention to limit, the power of local initiative, Neither is there any intent in the planning law to limit the operation of Section 9125 of the Elections Code in prohibiting supervisorial repeal of initiatives, and that statute sets no limit on the length of time an initiative can remain in force. If the electorate enacts a legislative measure that the governing body could have itself enacted, then the measure may, under Section 9125 of the Elections Code, circumscribe the power of future governing bodies (DeVita,, supra, at pp.796-799).
           We think the same reasoning would apply here and therefore we conclude that the voter approval requirement contained in the proposed initiative would be valid.
           In conclusion, it is our opinion that the proposed initiative would not conflict with and would not be preempted by state law.

IV.  COUNTY PARK

          The fourth question is whether the county would be required to obtain voter approval to build a park on land owned by, or to be acquired by, the county.
          The initiative allows the board of supervisors to amend the general plan with respect to agricultural lands, to "redesignate any such lands to the 'Public/Quasi Public' land use designation; provided that the General Plan amendment redesignating such lands allows only for; (A) parks restricted primarily to non-intrusive recreational or educational uses such as hiking and nature study..." (Policy LU-8e(1)(ii)(a)(iii)(A), the initiative). Similar provisions apply with respect to the redesignation of lands designated as resources and rural development (proposed Sec. 2.8.2(1)(ii)(a)(iii)(A), the initiative). In this regard, when the language of a statute is clear, its plain meaning should be followed (Droeger v. Friedman, Sloan & Ross (1991) 54 CaL3d 26, 38).
          Thus, any proposal by the county to build a park that would require the redesignation of a land use from agricultural or resources land to a designation that would allow for a park restricted primarily to nonintrusive recreational or educational uses such hiking and nature study would not require voter approval, and if the redesignation to another land use would allow any uses other than nonintrusive recreational or educational uses such as hiking and nature study, voter approval would be required4.
          In addition, the initiative states that it reaffirms and readapt Land Use Objective LU-4.1 of the General Plan, which assures chat development occurs only where physical public services and infrastructure, including, among other things, park facilities are planned to be available (subd. (A), Sec. 2, the initiative), and, as previously indicated, the initiative allows for development without voter approval to avoid an unconstitutional taking or to comply with state law regarding the provision of housing for all economic segments of the community under specified conditions (Policy LU-8e(1)(a) and (b), the initiative).
          Therefore, we conclude that a park may be built without voter approval only if it is consistent with the provisions of the initiative described above.

Very truly yours,

Bion M. Gregory
Legislative Counsel

By
Ben E. Dale
Deputy Legislative Counsel

BED:mfo

         1These cases indicate that the initiative and referendum powers are coextenseive: in other words, where one process may properly be invoked, sommay the other (Associated Homebuilders of the Greater East Bay, Inc. v. City of Livermore (1976) 18 Cal.3d. 582, 595 (hereafter Livermore)).  Thus, in light of the case law generally permitting the amendment of a local entity's general plan or zoning ordinance by initiative, referendum would also be appropriate, within the limits of the constitutional reservation of power. [back]

         2Disapproved on other grounds in Lesher vs. City of Walnut Creek (1990) 52 Cal. 531, 547. [back]

         3A vote was not required by the measure () in conjunction with annexation of land to a city; (2) after the board of supervisors makes certain specified findings, including that the land is physically unusable for agriculture, that it is unlikely to be annexed in the future, and that the proposed use of the land is compatible with agriculture; (3) to accommodate the siting of a solid waste disposal facility;, or (4) to avoid an unconstitutional taking of property (De Vita , supra, at p.771). [back]

         4See subdivision (e) of Section 11353.1 of the Health and Safety Code, describing various park uses such as play equipment and sports facilities. [back]