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July 11, 2000 VIA HAND DELIVERY & FACSIMILE Sonoma County Board of Supervisors Re: Rural Heritage Initiative Dear Chairman Reilly and Members of the Board: On behalf of Citizens for Sonoma County's Future, the coalition of community and environmental groups ("Coalition") that submitted the Rural Heritage Initiative ("RHI"), we are writing to respond to several misleading or erroneous statements contained in the Staff Report on the Impacts of the Rural Heritage Initiative ("Report"). In particular, we respond to the Report's conclusions regarding the effect of the initiative on parks and trails, farmworker housing, and city projects within the county. We also note that the manner in which the Report reached out to create possible "ambiguities" in the plain language of RHI on these and other issues, particularly when contrasted with the Report's failure to discuss any of RHI's potential benefits, seriously calls into question the fairness and objectivity of the Report. If this one-sidedness is not corrected by this Board, the Report runs the risk of becoming, in essence, a de facto ballot argument. Accordingly, because the California Supreme Court has expressly held that any expenditure of public funds on a ballot measure must be limited to a "fair presentation" of "all relevant facts," we urge the Board to correct these oversights and to provide the required fair presentation of RHI. This firm, which specializes in writing and defending land use initiatives, drafted RHI. Over the past 15 years, we have drafted more than two dozen land use initiatives and reviewed or consulted regarding numerous others. The firm drafted Napa County's Measure J, after which RHI is closely patterned. We later successfully defended that Measure against a broad-based challenge that culminated in a sweeping decision by the California Supreme Court upholding the measure. See DeVita v. Napa County, 9 Cal.4th 763 (1995). The firm also drafted or consulted on the Urban Growth Boundary ("UGB") initiatives overwhelmingly adopted by the majority of Sonoma County's cities, including Windsor, Healdsburg, Petaluma, and Sebastopol. The firm authored the chapter on initiatives contained in one of California's leading treatises on land use law and has consulted with numerous public agencies regarding land use initiatives. No initiative drafted by this firm has ever been successfully challenged in court. SUMMARY
RHI is closely patterned after Measure J, the Agricultural Lands Preservation Initiative adopted by neighboring Napa County in 1990. The stated purpose of RHI is to protect the County's rural heritage, including its agricultural, open space, scenic, and biotic resources. RHI § 1A. Thus, RHI finds that, among other things, the existing Sonoma County agricultural operations that would be protected by RHI contribute nearly $3 billion annually to the County's economy. RHI also finds that these agricultural lands, as well as the County's open space more generally, are jeopardized by sprawling and leapfrog development. The Sonoma County General Plan recognizes these same concerns, as have the California Legislature and the California Supreme Court. See Sonoma County General Plan at 31-32; DeVita v. Napa County, 9 Cal.4th 763, 791 (1995) ("The particular need for the long-term protection of agricultural land has been recognized both by the Legislature and by this court."). As the California Supreme Court explained in DeVita, the approach taken by RHI thus represents a "reasonable attempt to . . . delineat[e] a long-range policy intended to guide the county's development, curb haphazard growth, and promote desired land uses." Id. at 792. The Report, however, makes no reference to RHI's beneficial purposes or the extent to which RHI will achieve them. This omission is particularly disturbing because the Report repeatedly emphasizes the alleged costs and negative impacts of RHI. As detailed below, in many cases it does so on the basis of pure speculation or interpretations of RHI that are so far-fetched that they fly in the face of its plain language. The Report's exclusive focus on RHI's potential adverse impacts may well run afoul of the constitutional requirement that cities and counties remain neutral in ballot measure election contests. As the California Supreme Court explained in Stanson v. Mott, 17 Cal.3d 206, 217 (1976), "[a] fundamental precept of this nation's democratic electoral process is that the government may not 'take sides' in election contests or bestow an unfair advantage on one of several competing factions." Accordingly, any public funds the County expends regarding RHI must be limited to giving a "fair presentation" of "all relevant facts." Id. at 220. These concerns are heightened where, as the majority of the Board appears to be inclined here, a public agency formally takes a position for or against a ballot measure. See In the Matter of County of Sacramento, FPPC No. 93/345 (July 3, 1996). Thus, as the California League of Cities noted in its publication regarding ballot measure campaigns, "[The] Fair Political Practices Commission . . . considered the fact a county board of supervisors had voted to support ballot measures as evidence that the informational materials generated by the county on those measures were truly advocacy materials," and thus impermissible. See Legal Issues Associated With City Participation in Ballot Measure Campaigns (Aug. 1996) (attached hereto as Exhibit 1).1 The Report's lack of objectivity manifests itself most clearly in three areas. First, the Report presents a contrived, and internally inconsistent, interpretation of RHI to raise a host of purely speculative concerns regarding the measure's alleged imposition of a voter approval requirement for nearly all regional parks and recreational trails. Thus, while the Report's Executive Summary acknowledges that voter approval would not be required for parks and trails unless the park's "acreage [is] dedicated primarily to active recreational uses," RHI Impacts Report Executive Summary ("Executive Summary") at 2 (emphasis added), the Report elsewhere asserts that voter approval would be required even for proposed trails, if those trails are part of a park that has extensive ancillary facilities such as parking. This conclusion cannot be reconciled either with the statements in the Executive Summary or with the language of RHI. Moreover, the Report's reference to the potential uncertainty that voter approval could create for park acquisition not only ignores the fact that most of this uncertainty exists even in the absence of RHI, but also avoids any acknowledgment of the readily available options for minimizing that uncertainty. For instance, with respect to CEQA compliance, the Report assumes that a voter approval requirement could result in the County completing CEQA compliance for a project that ultimately might not be approved by the voters. But the same uncertainty exists even without RHI. Under CEQA, the Board is prohibited from committing itself to approving a Project before it undertakes the environmental review necessary to inform its decision whether to approve the Project. Second, the Report offers a strained interpretation of RHI to conclude that RHI could require voter approval for farmworker housing that is presently permitted under the County's General Plan. As detailed below, however, the plain language of RHI establishes that its voter approval requirement could not possibly be triggered in such instances, for two reasons: (1) construction of farmworker housing does not require a general plan amendment; and (2) by definition, the farmworker housing that is permitted under the existing general plan could not increase the density permitted under the General Plan. Third, although the courts have repeatedly held that cities within the County are not subject to the County's zoning or planning requirements for projects on unincorporated county lands, the Report attempts to create some uncertainty about the state of the law on this issue. The sole authority that the Report cites for this novel proposition is a recent law review article criticizing the law. While it is common for law review articles to criticize appellate court decisions with which the authors disagree, here such criticism is purely academic. It does not affect the state of the law and none of the leading treatises on California land use law even mention, let alone credit, this law review. It is therefore difficult to fathom how a purportedly objective analysis of RHI's impacts could have raised this alleged "uncertainty." For the foregoing reasons, the Coalition respectfully urges the Board to correct the Report's inaccuracies regarding RHI and provide the public with the fair presentation of RHI's impacts that the law requires. DISCUSSION
Overview of RHI RHI is an inherently conservative measure which seeks to reaffirm the well-conceived agricultural and resource land use policies contained in Sonoma County's present General Plan. These policies are highly protective of agriculture and, if maintained in place over the long-term, will help ensure the continued viability of agriculture and agricultural production in Sonoma County. The proponents of RHI have the utmost respect for the past and present Boards of Supervisors that have worked hard to implement these policies effectively. As development pressure increases in the County over the coming years, however, new Boards of Supervisors are likely to face increasing efforts by well-financed developers to convert large expanses of agricultural lands to urban uses. The primary purpose of RHI is to ensure that County voters have a say in determining whether such urban uses should be allowed to replace the current agricultural and other uses on land presently designated for agriculture (LIA, LEA, and DA) and Resources and Rural Development ("RRD"). By so doing, the measure will complement the UGB initiatives already adopted by the majority of the cities within the County and will build on the Community Separator open space measures overwhelmingly approved by County voters in 1996 and 1998. To achieve this purpose, RHI was closely patterned after Napa County's Measure J. Like Measure J, RHI would reaffirm existing County General Plan policies regarding agriculture and RRD lands and would "amend the General Plan to require voter approval of 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." RHI § 1(G) (Effect of the Initiative). The actual General Plan amendment implementing RHI's voter approval requirement is equally clear. The operative language appears in the first paragraph of the proposed new land use policy LU-8e, which provides as follows: 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: Proposed Policy LU-8e, § 1 (emphasis added). The same restriction appears in the corresponding section relating to RRD lands.
There is no ambiguity in this passage. As noted above,
it provides that voter approval is only required for any
general plan amendment that would (1) amend the land use
designation; or (2) increase the density of any lands that
are designated for agriculture. If a project does not
require a general plan amendment that would do one of these
two things, it is not affected by RHI and no voter approval
is required. There is no other way to read this
paragraph. To suggest, as some critics of the measure
have, that the highlighted word "or" makes unclear whether
an increase in the density of such lands could somehow
trigger a voter approval requirement in the absence of a
general plan amendment is simply not a plausible, or even
possible, reading of the language. Under
well-established principles of statutory construction,
neither the courts nor the County would have the authority
to so interpret the measure. See, e.g., Great
Lakes Properties, Inc. v. El Segundo, 19 Cal.3d 152, 155
(1977) ("It is axiomatic that in the interpretation of a
statute where the language is clear, its plain meaning
should be followed"); Rancho Bernardo Development Co. v.
Superior Court, 2 Cal.App.4th 358, 363 (1992)
("[T]he words of a statute are, when unambiguous, to
be interpreted literally and given their common and ordinary
meaning."). Accordingly, County staff have
acknowledged that RHI's voter approval requirement only
applies where a General Plan amendment would presently be
required. Executive Summary at 1, 2. Parks That Are Devoted Primarily to Non-Intrusive Uses Do Not Require Voter Approval under RHI. RHI expressly provides that the Board of Supervisors may amend the General Plan, without a vote of the people, to redesignate agricultural and RRD lands "to the 'Public/Quasi Public' land use designation [to allow for] parks restricted primarily to non-intrusive recreational or educational uses such as hiking and nature study." RHI § 2(A)(1) (emphasis added). "Primarily" is defined in common usage as "[c]hiefly; mainly."2 American Heritage College Dictionary 1086 (3d ed. 1983). Thus, while RHI strives to preserve the General Plan policy of avoiding conflicting land uses in agricultural and RRD areas, it also allows for recreational or educational facilities in such areas, as long as the park is "chiefly" or "mainly" devoted to non-intrusive uses. In its Executive Summary, the Report expressly recognizes the scope of this exception, noting that RHI would not require a voter-approved general plan amendment if the proposed facilities "have primarily non-intrusive recreational and educational uses." Executive Summary at 2. In the Questions and Answers section, however, the authors of the Report have apparently read the word "primarily" out of the initiative altogether, to conclude that voter approval would be required wherever "some of the acreage is dedicated to more intensive recreational facilities." RHI Impacts Report Questions and Answers ("Questions and Answers") at 6 (emphasis added). While the County has broad authority to interpret RHI, it has no authority to read critically important terms such as "primarily" out of the measure entirely. See, e.g., Rancho Bernardo Development Co., 2 Cal.App.4th at 363. Moreover, RHI's language requiring that redesignated lands be used primarily for "non-intrusive recreational or educational purposes" was provided by Sonoma County Counsel during discussions with this firm over the ballot summary. The term is based on the "passive recreation" standards of the Sonoma County Agricultural Preservation and Open Space District and has a well-established meaning. Critically, RHI's language is broader than that provided to the firm by the County Counsel's office, in that RHI restricts the voter approval requirement to general plan amendments for parks that would have "primarily" non-intrusive uses. The standards supplied by the County Counsel's office, by contrast, apparently would have allowed for parks restricted only to non-intrusive uses. The Coalition deliberately chose the word "primarily" because it recognized the public's need for ancillary recreational facilities. Thus, RHI allows such facilities, without a vote of the people, for parks that are devoted "primarily" to non-intrusive recreational uses. It is notable that many of Sonoma County's popular regional and state parks, such as Helen Putnam Regional Park, Hood Mountain Regional Park, Crane Creek Regional Park, Foothill Regional Park, Shiloh Regional Park, Sonoma Valley Regional Park, Annadel State Park, and Sugarloaf Ridge State Park, accommodate primarily non-intrusive uses, while at the same time including ancillary facilities such as parking lots. The Report is likewise inconsistent in its treatment of recreational trails. In the Executive Summary, the Report points out that "trails and bikeways built on public right-of-ways [sic] and shown on the General Plan Open Space Map have not required a General Plan land use designation amendment in the past." Executive Summary at 2. The Report then states in the Questions and Answers section that future trails may require a change in land use designation, and thus voter approval, due to ancillary facilities such as parking lots and restrooms. The latter conclusion ignores two fundamental points about RHI. First, if no General Plan amendment is required, the voter approval requirement cannot possibly be triggered. Thus, because trails and bikeways built on public rights-of-way have not required general plan amendments in the past, they will not require a General Plan amendment or voter approval under RHI. Second, the Report ignores RHI's use of the word "primarily." Given the size of the trails system, it is implausible that minor ancillary facilities like parking lots will ever be "primary" uses that trigger the voter approval requirement. Moreover, since parks in rural areas generally primarily provide non-intrusive recreational opportunities, it is unlikely that RHI will conflict with the mission of either the Agricultural Preservation and Open Space District or the Sonoma County Regional Parks Department. Finally, even for those primarily intrusive parks in agricultural and RRD lands to which RHI's voter approval requirement would apply, the Report's suggestion that this requirement could add years of delay and uncertainty to the park acquisition process is, at best, based on pure speculation. It also ignores the reality that such uncertainty exists irrespective of RHI. RHI Does Not Change Existing General Plan Policies For Provision of Farmworker Housing. The Report also goes out of its way to create an "arguable inconsistency" in RHI regarding its effect on farmworker housing. Ultimately, the Report concludes that, while a court might hold otherwise, these provisions could potentially be harmonized to mean that RHI would have no effect on farmworker housing. In fact, however, there is no other way to read RHI. As noted above, and as the Report acknowledges, RHI's voter approval requirement, applies only to general plan amendments that would (1) change the land use designation, or (2) increase the residential density on agricultural and RRD lands over that presently permitted under the General Plan. The Report also acknowledges that, "in the LIA, LEA, and DA categories, "farmworker and farm family housing is expressly allowed in addition to the residential density otherwise specified in the General Plan." Report at 8 (italics added). Because farmworker housing is expressly allowed under the existing General Plan, it cannot possibly trigger a general plan amendment. There is no possible ambiguity in this language and any objective analysis would have begun and ended with this simple fact. Moreover, even if there were any possible ambiguity, it would be thoroughly eliminated by RHI's Purpose and Findings, which expressly states that "[n]othing in the Initiative will impede the development of needed farm-worker housing." RHI § 1(E). The Report gives almost no attention to this express finding. Instead, it launches into a contrived statement that "[t]he question arises whether Section 2's voter approval requirements for density increases, when read together with Section 3's directive to make conforming changes throughout the General Plan, would require that these existing provisions of the General Plan be amended to permit such an increase in density only in accordance with the RHI's voter approval requirements." Report at 9 (emphasis added). This "question" could not possibly arise in any objective analysis of the measure, however, because, as the Report expressly acknowledges, farmworker housing is presently permitted under the General Plan and thus does not involve any "increase in density." Id. Equally troubling is the Report's suggestion that the meaning of "farmworker housing" in RHI is unclear because the Initiative itself does not define the term. What the Report fails to note, however, is that this term is already defined in the County's General Plan. It means "a dwelling unit or dwelling units occupied by persons employed by agricultural operations, and their dependents." Sonoma County General Plan at 409.3 Because the relevant provisions of RHI, once enacted, will become an integral part of Sonoma County's General Plan, RHI's drafters had no reason to define the term separately. Indeed, to do so would have been superfluous. In short, despite the best efforts of the Report to make RHI appear complicated on this issue, the Initiative is quite clear. Where farmworker housing would be allowed under the current General Plan, it will be allowed under RHI. If there is no ambiguity about the definition of farmworker housing in the General Plan, there is no ambiguity about the definition of farmworker housing in RHI. It Is Well-established That the Sonoma County General Plan, and thus RHI, Does Not Apply to City-Sponsored Projects in Unincorporated Areas of the County. The courts have repeatedly held that cities, when they undertake projects on unincorporated county lands, are not subject to that county's zoning or planning requirements. Akins v. County of Sonoma, 67 Cal.2d 185, 194 (1967) (building and zoning code); Lawler v. City of Redding, 7 Cal.App.4th 778, 784 (1992) (general plan); 82 Op.Atty.Gen.Cal. 135 (1999) (noting that the same rules apply to general plans and zoning). Thus, the leading treatises on California land use law have uniformly stated that this exemption is the law, without any reservation or qualification. Longtin's California Land Use, § 3.66 (2nd ed. 1987 & 2000 Supp.); Daniel J. Curtin, Curtin's California Land Use and Planning Law, at 54-55 (20th ed. 2000). The Report nevertheless attempts to create uncertainty about this issue, repeatedly stating that cities "might" be exempt from complying with the County's General Plan. See, e.g., Executive Summary at 1; Report at 4. The Report's sole authority for this novel proposition is a 1999 law review article by a newly minted deputy city attorney. Report at 21. Given the courts' uniform holdings to the contrary, this academic article deserves no mention in an objective analysis of RHI's impacts and certainly should not be accorded the weight that the Report gives it. CONCLUSION
For the foregoing reasons, the Coalition respectfully urges
the Board to correct the Report's inaccuracies regarding RHI
and provide the public with the fair presentation of RHI's
impacts that the law requires. Very truly yours, RSP:fms cc: Citizens for Sonoma County's
Future
1 Indeed, the Report's one-sidedness closely resembles the type of "de facto ballot arguments" contained in recent legislation sponsored by the California Building Industry Association. SB 1966 (Brulte) (proposing amendments to Election Code section 9111 to authorize such reports to discuss an initiative's adverse impacts on development). Ironically, just last week, the Assembly Committee reviewing the legislation pointed out that limiting the reports to such a narrow focus would "mak[e] the report a de facto ballot argument against development controls." Assembly Committee Report at 2 (attached hereto as Exhibit 2). Thus, the Report concluded, "[b]ecause the purpose of this [report] is for a county or city to take a well-informed position on a proposed initiative and to enlighten voters of various local and regional impacts due to the proposed measure, open space and agricultural land conservation issues should be addressed." Id. Unfortunately, the County's one-sided Report undermines the purposes of Section 9111 and fails to address any of RHI's potential benefits. [back] 2 "It is a general rule of statutory construction that a court will interpret a measure adopted by the vote of the people in such a manner as to give effect to the intent of the electorate. 'The words must be read in a sense which harmonizes with the subject-matter and the general purpose and object of the amendment, consistent of course with the language itself. The words must be understood, not as the words of the civil service commission, or the city council, or the mayor, or the city attorney, but as the words of the voters who adopted the amendment. They are to be understood in the common popular way, and, in the absence of some strong and convincing reason to the contrary, not found here, they are not entitled to be considered in a technical sense inconsistent with their popular meaning.'" Creighton v. City of Santa Monica, 160 Cal. App. 3d 1011, 1018 (1984) (citations omitted). [back] 3 Farmworker housing is likewise plainly contemplated within RHI's use of the term "density." Although the Report dedicates more than a page and a half purporting to resolve the alleged ambiguity in RHI's use of the term "density," the term is expressly defined in the General Plan to mean "the number of dwelling units per acre or the number of acres per dwelling unit." Sonoma County General Plan at 409. Under the plain language of the General Plan, this definition will clearly apply to the new General Plan policies added by RHI. [back] |