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The Initiative Process, Land Development & CEQA
LAKE ELSINORE CITY COUNCIL MEETING
September 27, 2016
Barbara Z. Leibold – City Attorney
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The Power of the Initiative – Direct Democracy
Proposition 7, the California Initiative and Referendum Proposition (October 1911)
“The legislative power of this state shall be vested in a senate and assembly which shall be designated ‘The legislature of the State of California,’ but the people reserve to themselves
the power to propose laws and amendments to the constitution, and to adopt or reject the same, at the polls independent of the legislature… .” (Section 1, Article 4)
Proposition 7 extended the reservation of legislative power to the electors of each county, city and county, city and town granting the ability to place initiatives and referendums on
the ballot. (Section 11, Article 2)
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Ballot Arguments (1911)
In Favor
It will be unsafe and profitless for legislators to bargain with private interests, or to violate the people's rights; because the people have the power of ratification or rejection.
It will prove a safeguard against the "silent scheming of the crafty few," and at the same time serve as a safeguard against the enactment of laws noisily demanded by a mere faction
Against
Proposition 7 is "so radical as to be almost revolutionary in its character. Its tendency is to change the republican form of our government and head it towards democracy, and history
teaches that democracies have universally ended in turbulence and disaster." (Senator Leroy Wright)
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Six Step Initiative Process
Elections Code §§ 9200-9226
Step 1 Notice of Intent to Circulate Petition
Step 2 Ballot Title & Summary
Step 3 Publication and/or Posting
Step 4 Circulation of Petition
Step 5 Examination & Verification of Signatures
Step 6 City Council Options
Legislature adopted comprehensive statutory scheme to govern the initiative and referendum process (Elections Code 9200 - 9226).
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Trends in Land Use Initiatives
Traditional land use initiative big picture legislative framework to amend policies adverse to proponent’s interests (i.e. “slow growth”)
Land use initiatives that build in approval of proponent’s particular project and avoid city’s normal land use regulatory process, discretionary land use authority and CEQA
Instant planning and permitting of “total land use initiative” and avoidance of CEQA is expanding to larger, long-term projects that tie the hands of future city councils by allowing
amendments only upon request of the landowner or by majority vote of the electorate at a citywide election
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What is CEQA?
The California Environmental Quality Act (CEQA) passed into law in 1970, establishing statewide policies that require both state and local agencies to consider the environmental consequences
of decisions that involve changes to the environment.
The purposes of CEQA are to:
Provide information about the environmental effects of development projects.
Identify ways that environmental damage can be avoided or reduced.
Prevent significant environmental impacts through mitigation measures or alternatives.
Disclose the reasons why a project was approved despite significant environmental impacts.
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CEQA & Land Use Initiatives
A development project approved through the traditional entitlement process which includes noticed public hearings at the Planning Commission and City Council is subject to CEQA.
An initiative proposed by the voters and placed on the ballot by a City Council is exempt from CEQA. (1980)
An initiative proposed for voter approval by a City Council is subject to CEQA. (2001)
An initiative proposed by the voters and adopted by a City Council is not subject to CEQA. (2014)
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Total Land Use Initiatives Often Test the Limits to the Initiative Power
Cannot violate state or federal constitution
Cannot effect a special privilege, power or duty to an individual or private corporation
Initiative power reserved for legislative acts only ; non-legislative acts are NOT subject to initiative
Cannot mandate future legislative acts
Cannot legislate action pre-empted by state or federal law or reserved specifically to City Council
Cannot impair essential governmental function
Land use initiatives must be consistent with general plan (vertical consistency) and internally consistent (horizontal consistency)
Cannot contain false and misleading statements
Cannot violate single subject rule
Legislature adopted comprehensive statutory scheme to govern the initiative and referendum process (Elections Code 9200 - 9226).
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Judicial Challenges To Land Use Initiatives Pre- vs Post-Election Review
Courts have expressed “solemn duty to jealously guard the initiative power, it being one of the most precious rights of our democratic process. (Amador Valley Joint Union High Sch.
Dist. v. State Bd. of Equalization (1978)).
Courts are generally reluctant to grant pre-election review absent clear showing of invalidity or where the electorate clearly lacks power to adopt proposal.
The people’s right to directly legislate through the initiative process is to be respected and cherished does not require the useless expenditure of money and creation of emotional community
divisions concerning a measure that is legally invalid. In such cases, routine deference to the process often requires a charade of a pointless election.
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A Real Life Example
The Alberhill Villages Specific Plan
The Alberhill Villages Specific Plan (AVSP) started as a traditional land use application pursuant to the City’s normal land use regulatory process
AVSP Application
+/- 1400 acre mining site
8244 residential units with projected population at build-out of +/- 27,000 people
4,007,000 square feet institutional, office and retail
Build out projected over several decades
The Draft Environmental Impact Report (DEIR) evaluating the AVSP circulated for public comment
Planning Commission Noticed Public Hearing to consider DEIR and AVSP conducted on February 16, 2016
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The Alberhill Villages Specific Plan (AVSP) Initiative - Timeline
March 2, 2016 – Following Planning Commission recommendation to adopt AVSP with conditions, applicant requested the project be put “in abeyance” and filed Notice of Intent to Circulate
Initiative petition.
March 14, 2016 – First initiative withdrawn by proponent and substitute Notice of Intent to Circulate Initiative Petition submitted
The 263 page initiative incorporated a revised AVSP different than the AVSP reviewed by City staff and the Planning Commission
March 29, 2016 (15th day after submittal of Petition) – In lieu of preparing ballot title and summary, City Attorney filed a Complaint challenging the constitutionality of the proposed
initiative
April 1, 2016 – Proponent filed lawsuit seeking to compel the City Attorney to prepare ballot title and summary
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The Alberhill Villages Specific Plan (AVSP) Initiative Con’t
June 3, 2016 – City published Notice of Public Hearing for City Council consideration of AVSP
June 10, 2016 – Proponent submitted new Notice of Intent to Circulate Initiative Petition
June 14, 2016 – City Council certified EIR with mitigation measures and adopted AVSP with modifications in response to Planning Commission and staff recommendations and response to public
comments to the EIR
June 27, 2016 – City Attorney submitted Ballot Title and Summary for new AVSP initiative
June 30, 2016 – Proponent withdrew the March 14 version of the AVSP Initiative
July 1, 2016 – Proponent published Notice of Intent and Title & Summary of the new (June 10) version of the AVSP Initiative
July 25, 2016 – Pending litigation dismissed
July 2016 – December 2016 –AVSP Initiative (June 10 version) circulation period expires 180 days after receipt of Ballot Title and Summary
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FREQUENTLY ASKED QUESTIONS REGARDING THE INITIATIVE SIGNATURE-GATHERING PROCESS
What training is required and/or provided to circulators?
The proponents of an initiative must ensure that any circulator, paid or volunteer, receive instruction on the requirements and prohibitions imposed by state law with respect to circulation
of the petition and signature gathering. In particular, signatures cannot be used for any purpose other than qualification of the proposed initiative for the ballot.
What are the requirements to be a signature gatherer (known in the Elections Code as a “circulator”)?
The only requirement is that a circulator must be 18 years of age or older. A circulator does not have to be a registered voter or a resident of Lake Elsinore.
What information must the petition include?
Each section of the petition must contain the text of the initiative, and the top of each signature page must contain the ballot title and summary prepared by the city attorney. The
text of the initiative must be printed in type no smaller than 8 point, and the ballot title and summary must be printed in type no smaller than 12 point.
Can the circulator be paid to collect signatures?
Yes. The petition may be circulated by a paid circulator. Anyone asked to sign an initiative has the right to ask whether the circulator is being paid to gather signatures. The circulator
must disclose whether he or she is being paid, but does not have to disclose his or her name or address
Can I be paid to sign a petition?
No. A voter may not be offered any sort of compensation, monetary or other, to sign a petition.
Can a circulator solicit signatures outside the door of the polling place?
No. Circulators must remain at least 100 feet from the door of the room where voters are signing the roster and casting their ballots.
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Can a circulator legally gather signatures by leaving a petition unattended?
No. As stated in the circulator’s declaration, each signature must be personally witnessed by the circulator to be valid.
If I am asked to sign the petition, do I have a right to read the initiative?
Yes, you must be allowed to see the full text of the initiative.
Does the circulator have to answer questions regarding the initiative?
Yes. The circulator must answer questions in reference to the petition; the answers must be factual and cannot be misleading; and, they may not misrepresent the purpose or contents
of the initiative.
What information does a circulator need to provide to the City’s Elections Official (City Clerk)?
When the proponent submits the petition to the City Clerk, each section of the petition must have attached a declaration signed by the circulator under penalty of perjury that states:
The circulator’s name and address; and,
The dates between which the signatures on the petition were obtained; and,
That the circulator circulated that section and witnessed the signatures being written; and,
That according to the best information and belief of the circulator, each signature is the genuine signature of the person whose name it purports to be; and,
That the circulator is 18 years of age or older.
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How is the validity of petition signatures determined?
The City’s Election Official (City Clerk), along with the County Registrar of Voters, will determine that the residence address on the petition is the same as the residence address
on the voter registration card and that the signature matches what is on file.
A signature will be deemed invalid for any of the following reasons:
the addresses are different
the petition does not specify the residence address
the petition does not provide for the signer’s signature, printed name, and full residence address
the person signing the petition is not a Lake Elsinore registered voter
the signature does not match what is on file
Can I withdraw my signature from a petition once I have signed it?
Yes. A voter who has signed an initiative petition, and who subsequently wishes his or her name withdrawn, may do so by filing a written request for the withdrawal with the City’s
Election Official (City Clerk) that includes the voter’s name, residence address, and signature. This request must be filed in the City Clerk’s office, either by mail or personal
delivery, prior to the date the petition is filed.
How do I report a suspected Elections Code violation?
If you have reason to believe that a circulator is breaking the law, report as much information as possible, including:
the location at which the circulator was working
a physical description of the circulator
the name or a description of the initiative measure and/or the proponents of the petition you were asked to sign
and the names of any witnesses
All violations should be reported to the City’s Elections Official (City Clerk) or to the Secretary of State’s Election Fraud Investigation Unit.
City of Lake Elsinore Elections Official
Susan M. Domen, MMC, City Clerk 130 S. Main Street
Lake Elsinore, CA 92530
(951) 674-3124 ext. 269; E-Mail: sdomen@lake-elsinore.org
Secretary of State’s Election Fraud Investigation Unit
at (916) 657-2166.
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What if the circulator is rude, aggressive, threatening or refuses to leave private property when asked?
If you suspect a circulator is engaging in illegal activity not related to an election issue, such as trespassing or other crimes, you should call the Lake Elsinore Police Department
at (951) 245-3300.
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