The June election will see the usual collection of local land use ballot measures, including proposals in three counties to hike the sales tax for transportation projects. However, the election may be even more significant because of three measures that are not on the ballot — and the reason voters will not see those measures.
The items not on the ballot are a general plan initiative and a project referendum in Monterey County, and a general plan amendment initiative in the City of Loma Linda. The two initiatives were knocked off the ballot by federal district court judges who ruled that the initiatives violated the Voting Rights Act because petitions were not provided in Spanish. After the ruling regarding the Monterey County general plan initiative, the Board of Supervisors voted to remove from the ballot a referendum of an 1,100-unit housing project for the same reason.
While the short-term implications are clear — voters will not decide on the three measures in June — the long-term impacts are exceedingly muddy. Latino and voting rights advocates argue that requiring Spanish versions of proposed ballot measures is not overly burdensome of petitioners. But the petitioners worry about problems with translation accuracy and expense, and they argue that their voting rights were violated when judges blocked ballot measures that had adequate signatures to qualify for an election.
Complicating the situation is the firmness of a Ninth U.S. Circuit Court of Appeals decision on which the judges based their ballot measure decisions. That Ninth Circuit decision — which held that recall petitions in the Santa Ana Unified School District had to be in both English and Spanish — is now under an en banc review by the Ninth Circuit.
Among the ballot measures that voters will actually get to decide in June is a far-reaching property rights measure in Napa County that would require the county to compensate property owners for the loss of value caused by new regulations. The measure is receiving enormous opposition in a county that is famous for land use regulations that protect agricultural land and watersheds. In addition:
• Napa County voters will join those in Solano County and Santa Clara County to decide on half-cent sales tax measures.
• In Orange County, voters have the chance to limit the county’s use of eminent domain.
• Voters in Santa Barbara County may create the state’s 59th county.
The Monterey County ballot measures are two chapters in two long-running and increasingly contentious debates, one concerning the county’s ongoing general plan update and one concerning development of the 2,500-acre Rancho San Juan, just north of Salinas (see CP&DR, December 2005 and October 2005; Local Watch, July 2004 and June 2003).
Monterey County began working on a general plan update six years ago and recently released its fourth draft plan. The first three went nowhere. The third draft died when county supervisors objected to growth-control elements in the proposal. The group LandWatch Monterey County and environmental organizations then wrote a general plan initiative that sought to impose growth restrictions, primarily by limiting subdivisions to a handful of designated growth areas. Subsequent changes to the plan would be permitted only with voter approval. Early this year, initiative advocates submitted enough valid signatures to qualify the initiative for the ballot. However, based on a report prepared for the county by Nossaman, Guthner, Knox & Elliott, the Board of Supervisors voted 3-2 not to place the initiative on the ballot because of legal conflicts with state law.
Only a week before the supervisors’ decision, a group of Latino voters sued the county in federal court, arguing that the petition violated the Voting Rights Act. The day after supervisors’ decision, initiative proponents sued the county in Superior Court. The two lawsuits were consolidated in federal court, and on March 23, District Court Judge James Ware ordered the county not to place the initiative on the ballot because petitions were not circulated in both Spanish and English, in violation of the Voting Rights Act. (The case is In re Monterey County Initiative Matter, Nos. C06-01407 JW and C06-01730 JW.)
After Ware’s decision, the Board of Supervisors voted 4-1 to rescind a January decision to place on the ballot a referendum on Rancho San Juan development. Supervisors said the referendum should have been translated into Spanish. Referendum proponents then sued the county for pulling the measure off the ballot. The referendum would have been the second on Rancho San Juan, as voters last fall overwhelmingly rejected a specific plan for the site.
The day after Ware issued his ruling, U.S. District Court Judge Audrey Collins issued an injunction against a slow-growth initiative and two housing project referendums in the San Bernardino County city of Loma Linda. In April, Collins reversed herself regarding the referendums but maintained the injunction against the initiative because it was not circulated in Spanish. However, the referendums still will not appear on the June ballot because San Bernardino County Superior Court Judge Martin Mildreth ruled the referendums were invalid because they did not contain accurate descriptions of the two housing projects, which jointly contain about 2,400 units.
The group behind the ballot measure, Save Loma Linda, has appealed the Superior Court’s ruling, and it has already started circulating a new slow-growth initiative with a Spanish translation.
The Voting Rights Act issue “is novel to a lot of people, but should not have been,” said Monterey County Counsel Charles McKee, who urged supervisors to yank the Rancho San Juan referendum after Ware’s initiative ruling. “It’s not like this is new law. This is the court telling us how to apply it.”
In fact, the Ninth Circuit ruled 20 years ago in Zaldivar v. City of Los Angeles, 780 F2d 823, 833 (1986), that the Voting Rights Act “does not exempt information or material, compelled by statute, which is preliminary to voting, but essential if an election is to occur.” The Zaldivar decision, which was overruled on other grounds in 1990, appears to have laid dormant until the Ninth Circuit panel resurrected it in the Santa Ana school district recall. In a 2-1 decision issued last November in Padilla v. Lever, 429 F.3d 910 (2005), a Ninth Circuit panel cited Zaldivar extensively in ruling that recall materials had to be printed in both Spanish and English in the school district. District Court judges then cited Padilla while blocking the Monterey County and Loma Linda initiatives. On April 20, however, the Ninth Circuit voted to rehear Padilla en banc, meaning the November 2005 decision is no longer precedent.
John Ramirez of Rutan & Tucker, who represents Latino plaintiffs in the Monterey County initiative litigation, said the Voting Rights Act requirement “is a re-emerged issue,” and he expects it to surface elsewhere. Ideally, he said, ballot measure proponents would substantially comply with the federal law rather than fight it. He noted that initiatives have circulated in multiple languages, and that election officials regularly hire companies to translate ballot materials. The multiple language requirement is a matter of ballot measures continuing to evolve, Ramirez said.
The requirement at issue is not universal. The multiple-language mandate only applies in counties where both 5% of the voting population speaks another language and English illiteracy is greater than the national average.
Chris Fitz, executive director of LandWatch Monterey County, said the Padilla court and Judge Ware got it wrong and that petitions — although regulated by the government — are not “ballot materials” prepared by the government, which are clearly subject to the Voting Rights Act.
“You can’t have ballot materials until you’ve got something on the ballot. Petitions are not on the ballot,” Fitz said. “The whole point of petitioning your government is that it is something private citizens do.”
Fitz and his predecessor at LandWatch, Gary Patton, now head of the Planning & Conservation League, argue that translation of an initiative would be tricky because languages do not correspond word-for-word.
“Thus,” Patton wrote for the LandWatch website, “if two or more versions of what purports to be the same ‘law’ are circulated in an initiative petition (and in some jurisdictions there would need to be five or more translations, to carry out the effect of Judge Ware’s decision) … there would then be a fundamental question, if the initiative were adopted, of which ‘version’ of the ‘law’ prevails.”
Loma Linda growth-control advocates were no less miffed. They noted that less than 1% of the voters in the largely Seventh-Day Adventist city are Spanish speaking.
“The judge conceded that she was essentially making it impossible for citizens to petition,” said Save Loma Linda spokeswoman Kathy Glendrange. “The decision ensures that only wealthy citizens can participate in the petition process because of the expense involved in translating all of the documents into Spanish.”
Nevertheless, the group has begun circulating in both English and Spanish an initiative very similar to the rejected one. It would designate 800 acres of city-owned land as open space, set minimum lot sizes, establish traffic thresholds and limit hillside development (see CP&DR Local Watch, December 2005).
As for initiatives that will actually appear on the June ballot, Napa County’s Measure A may have the largest impact statewide. The Fair Pay for Public Benefit Act would require the county to compensate a property owner “who suffers an established decrease in value of that property due to the impact of a new Napa County land use restriction.” If the property owner and Board of Supervisors cannot agree on suitable compensation within 100 days, the property owner may go to court.
A group called Napa Valley Land Stewards Alliance is behind the initiative. Two years ago, the group led a successful referendum campaign to overturn a county stream setback ordinance (see CP&DR, March 2004). The group has continued to advocate for property rights ever since, arguing that heavy-handed county regulation has “taken” private property.
The group had little trouble gathering enough signatures to qualify the initiative for the ballot. However, nearly the entire Napa Valley power structure is opposed to the measure. Even politicians such as Supervisor Mark Luce, a Republican who worked with Land Stewards to overturn the stream setback regulations, oppose the Fair Pay initiative.
“It doesn’t say what’s fair or unfair. It says the county will no longer regulate,” Luce said. “There wouldn’t be much land use planning left.”
Luce said he understands the frustration behind the initiative. A better approach, he offered, would be for the county to prepare an economic analysis of new regulations, and then have voters decide on the regulations with significant impacts.
A study of the measure prepared for the county by Seifel Consulting and Kronick, Moskovitz, Tiedemann & Girard identified a number of problems. The attorneys said the initiative is illegal because counties may legally pay only claims that are required by statute — and the Fair Pay act would not be a statute. The economists estimated the initiative could cost the county tens of millions of dollars but warned that forecasting was difficult.
Initiative proponents countered that the measure would cost the county nothing as long as supervisors do not enact regulations that harm property values.
Other local measures scheduled for the June ballot:
• Half-cent sales tax measures in Solano, Napa and Santa Clara counties. The Solano and Napa county measures are traditional taxes to fund transportation and require two-thirds approval to pass. In Santa Clara County, which already has a half-cent tax for transportation, the measure is a general half-cent tax, so only a majority vote is required. Some of the money would go to social service programs, but the bulk would likely pay for transit, primarily the extension of BART from Fremont to San Jose. There currently is not enough money for the $4.7 billion BART project.
• A measure backed by the Orange County Board of Supervisors that would prohibit the county from taking property via eminent domain so that the property may be used for private development.
• A measure in Santa Barbara County that would carve a new county out of the existing county (see CP&DR Local Watch, July 2003). The proposed Mission County would encompass Santa Maria, Lompoc, Buellton and the Santa Ynez Valley.
• A referendum of a 2,155-unit housing project in Santa Paula, where voters rejected a much smaller housing project in April.
• An initiative in Barstow to encourage development of an Indian casino.
• A measure in Apple Valley that seeks to clarify the City Council’s authority under a 1999 ballot measure that limits housing development to two units per acre.
• Repeal of a 1987 voter-approved zoning limitation in Morgan Hill that currently prohibits grocery stores at the Cochrane Plaza Shopping Center.
• A measure in Saratoga regarding the former Grace Methodist Church, which the city purchased four years ago for use as a senior center. The senior center never relocated to the site, and now the city proposes selling the 2.6-acre property. Opponents insist the church sold the property to the city at a discount and the property should remain in public hands.
• A Kern County initiative that would ban the application of sewage sludge on farm fields. About one-third of all sewage sludge — a byproduct of sewage treatment — in the state is now hauled to Kern County and spread on agricultural land. The county has tried for years to halt the practice (see CP&DR Legal Digest, May 2005; Environment Watch, July 2000).
• A San Francisco initiative aimed primarily at Laguna Honda Hospital admissions and care policies that also would permit development of nursing homes as conditional uses on land zoned for public use. At least that is the analysis of the city attorney and city planners. Initiative proponents deny that the initiative’s new use district would apply anywhere other than at Laguna Honda.
Results of land use measures on local ballots during April.
Los Angeles County
City of Arcadia. An $8 million bond to help fund an overpass above Santa Anita Avenue for the planned Gold Line train won approval. The bond is expected to cost property owners about $7 per $100,000 of assessed value per year. The city has already set aside about $5 million for the $13 million grade separation project.
Measure A, Yes: 71.8% (2/3 vote required)
San Mateo County
Town of Colma. Voters in this city of 1,500 people overwhelmingly backed an advisory measure that urges the state to permit no-limits gambling at the Lucky Chances Casino. From the time it opened in 1998 until late in 2005, Lucky Chances permitted high-stakes poker and Asian games. However, the attorney general’s office ordered Lucky Chances to cap bets at $200 because the high-stakes gambling violated a 1996 state law against card room expansion. Lucky Chances provides about one-third of the city’s annual revenue.
Measure R, Yes: 89.8%
City of Santa Paula. A proposal to expand the city’s voter-approved growth boundary narrowly failed, as voters rejected a plan to develop Adams Canyon for the third time in six years. The latest proposal called for 495 upper-end houses, a 200-room hotel and a country club on 6,500 acres.
Measure Y, No: 51.1%