A state appellate court has reinstated the results of a local ballot initiative that authorize a large development near the San Luis Obispo County airport.

A trial court judge had thrown out the initiative on the grounds that it was superceded by the State Aeronautics Act and that the ballot measure amounted to an "adjudicative" rather than a legislative act. A unanimous three-judge panel of the Second District Court of Appeal, Division Six, disagreed, ruling that the aeronautics law did not preclude the initiative and that it was appropriately legislative in nature.
Ever since the 1980s, landowner Ernest Dalidio Jr. has been trying to develop his 130-acre property west of Highway 101 and south of Madonna Road. Five years ago, he finally won approval for a  project from the City of San Luis Obispo. But city voters nullified the approval in a 2005 referendum, and the city never annexed the property, as Dalidio had proposed.
A year later, Dalidio took a proposed development directly to county voters in the form a general plan amendment and zoning changes. The proposal involved a 530,000-square-foot retail center, 200,000 square feet of office and business space, a 150-room hotel, 60 housing units and a permanent farmers market. County voters passed the proposal, Measure J, by a 2-1 margin in November 2006.
Opponents continued to complain that the developer would not pay his fair share for a needed freeway interchange and that plans for an on-site sewage-treatment plant were uncertain to pass state regulatory muster.  The Citizens for Planning Responsibly and the Environmental Center of San Luis Obispo County sued to block the project, and San Luis Obispo County Superior Court Judge Roger Picquet ruled in their favor. Dalidio appealed.
In its decision, the appellate panel first addressed the question of whether the initiative was legislative. Only legislative acts are subject to the initiative process. Judge Picquet had characterized Measure J as adjudicative because it involved a specific proposal for a defined area and not more general rules for future cases.
The appellate panel pointed to the landmark cases of Arnel Development Co. v. City of Costa Mesa, (1980) 28 Cal.3d 511, and DeVita v. County of Napa, (1995) 9 Cal.4th 763. In Arnel, the state Supreme Court held that a zoning ordinance is a legislative matter that may be enacted by initiative. In DeVita, it ruled that a general plan amendment is legislative and thus subject to the initiative process. The three judges said Dalidio's initiative was no exception to these rulings.
The appellate panel then turned to the State Aeronautics Act, which requires every county to have an airport land use commission that adopts plans for areas around airports. Cities and counties must comply with the plans unless they make certain findings regarding compatibility with airport uses and obtain two-thirds approval from the legislative body. Measure J would alter general plan and zoning designations within an area subject to the San Luis Obispo County airport land use plan. Opponents of Dalidio's project contended that the State Aeronautics Act, because it addresses issues of statewide concern, prohibits any local initiative seeking to change how land adjacent to an airport is used. The court rejected the argument.
"Undoubtedly, public safety and environmental concerns related to aviation and airports are matters of statewide concern. But a state statutory scheme does not restrict or preempt the power of the initiative simply because it implicates matters of statewide concern," Justice Steven Perren wrote in the decision overturning the lower court.
"Local agencies have traditionally exercised control over land use regulation," Perren continued. "Absent a clear indication of preemptive intent, we must presume that local regulation and the initiative power do not conflict with the SAA [State Aeronautics Act]."
The judges also rejected the argument that the initiative was invalid because voters could not make the findings required to supercede the airport land use commission. Making such findings is a procedural requirement that is waived in the initiative process, the court determined.
The trial court judge's award of attorney fees to the opponents of the project was also overturned. The two groups were ordered to pay Dalidio's appeal costs.

The Case:
Citizens for Planning Responsibly v. County of San Luis Obispo, No. B206957, 2009 DJDAR 11387. Filed August 4, 2009.
The Lawyers:
For Citizens: Kevin Bundy, Shute, Mihaly & Weinberger, (415) 552-7272.
For the county: James Orton, county counsel's office, (805) 781-5400; and Barbara Schussman, Bingham McCutchen, (415) 393-2000.
For Ernest Dalidio Jr.: Michael J. Morris, Andre, Morris & Buttery, (805) 543-4171.