CANYONS NEIGHBORHOOD ASSOCIATION, et al., Plaintiffs and Appellants, v. MONTEREY PENINSULA REGIONAL PARK DISTRICT BOARD OF DIRECTORS, et al., Defendants and Respondents.
The Canyons Neighborhood Association and Michael Caplin (hereafter collectively, Association or appellant) appeal from the trial court's orders denying their petition for writ of mandate (Code Civ.Proc., § 1085) and dismissing their case. Association sought to compel the Monterey Peninsula Regional Park District and its general manager Gary Tate (hereafter collectively, respondent or Park District) either to repeal a resolution or to hold a referendum on it (Cal. Const., art. 2, § 9(a)), to determine if the voters favored Park District's purchase of the Bixby Creek property for use as a public park. Determination of the issue depends on whether Park District's Resolution No. 89–03 was a legislative or an administrative act. The Planning and Conservation League and the Big Sur Land Trust have filed amicus curiae briefs. For the reasons stated below we will affirm.
The earliest recorded discovery of the California redwoods, like those found on the Bixby Creek property, occurred when a group of Spanish explorers reached the Monterey Bay area in 1769. The explorers noted that there was an abundance of these very tall trees in the area, and since no one recognized them, they were named redwoods for their color. (Hank Johnston, They Felled the Redwoods (1983) Trans–Anglo Books, Los Angeles, pp. 12–14.) These old growth redwoods, in and near the Big Sur area, faced extinction through a change in the Forest Practice Act of 1982, which stripped the county of its power to protect Big Sur's redwood trees, and would have permitted the Philo Lumber Company to log the area.
In 1983 Big Sur residents, environmental activists, and representatives of Monterey County approached the Big Sur Land Trust (hereafter, Land Trust) in an effort to prevent logging on the Bixby Creek property 1 by Philo. Private citizens sued Philo and the California Department of Forestry, challenging the issuance of the permit. In light of these and other difficulties, Philo defaulted on its loan from the Federal Land Bank, which then acquired the land in a foreclosure sale. The Land Trust agreed with the Park District that they would investigate obtaining private and public funds to preserve open space in the Bixby Creek watershed area. The Park District determined that the property should be acquired for parkland, and passed several resolutions to this effect during 1984.2 As a result, the county incorporated several policies 3 regarding possible acquisition of the property for public park purposes into the Big Sur Local Coastal Program Land Use Plan. Park District planned to use the land, if it could be acquired, as a limited-public-access recreational (hiking) park.
After the Federal Land Bank reduced the asking price, the Land Trust finally purchased the property for 1.2 million dollars in September 1987, on the understanding it would hold the land for Park District until Park District could secure funding through Proposition 70 or other means. The purchase was made possible only through a “bridge” loan from the David and Lucile Packard Foundation. Park District actively pursued passage of Proposition 70 (now Pub. Resources Code, § 5900 et seq.),4 which included a specific funding provision for acquisition of the Bixby Creek property for parkland.
In June 1988, the voters passed Proposition 70, a statewide initiative proposing the California Wildlife, Coastal, and Park Land Conservation Act. The Land Trust and Park District both had lobbied successfully to have funds specifically designated for the public purchase of the Bixby Creek property. The legislative intent of the Act is expressed in section 5905: “Wildlife, coastal, and park land conservation is in the public interest and is necessary to keep these lands in open-space, natural, and recreational uses, to provide clean air and water, to protect significant environmental and scenic values of wildlife and plant habitat, riparian and wetland areas, and other open-space lands, and to provide opportunities for the people of California to enjoy, appreciate, and visit natural environments and recreational areas. [¶] It is the intent of the People of California in enacting this division that it be carried out in the most expeditious manner possible, and that all state officials implement this division to the fullest extent of their authority.” This intent is similar to the policies of the Park District: to preserve open space, to provide recreational opportunities, and to protect the environment.
Proposition 70 provided other benefits to residents of Monterey County besides making funds available for the purchase of the Bixby Creek watershed, including provision of funds for conservation projects in the Salinas and the Pajaro Valleys and view preservation along the Big Sur coastline. (§ 5907, subds. (b)(3)(I) and (e)(5).) A majority of the voters in the county and in the Palo Colorado Canyon area voted in favor of Proposition 70. If money designated for the purchase of a particular parcel of land is not used by the public agency within 10 years, it reverts to the Department of Parks and Recreation. (§ 5922.)
On August 1, 1988, the board of directors of the Park District passed Resolution No. 88–05, which approved the Park District's application for Proposition 70 funds for the Bixby Creek watershed acquisition and the Garland Ranch Regional Park expansion project. The Park District held an open public meeting in the Palo Colorado Canyon area on December 10, 1988. On February 6, 1989, the board of directors passed Resolution No. 89–03, authorizing the Park District to purchase the Bixby Creek watershed property from the Big Sur Land Trust. On March 7, 1989, Association presented its signed petitions to the Park District, seeking repeal or submission to the voters of Resolution No. 89–03. After the Park District declined to act because it found the resolution to be an administrative act, appellant filed its petition for writ of mandate. Park District answered and demurred, and the trial court sustained its demurrer without leave to amend, denied the petition for a writ and dismissed the action, precipitating this appeal.
Standard of Review
The trial court ruled both on the demurrer to the petition and on the petition for writ of mandate itself. The appeal is from a judgment of dismissal, entered by stipulation of the parties, after the trial court sustained the demurrer without leave to amend and denied the petition for a writ. An appeal lies from the judgment of dismissal. (Code Civ.Proc., § 904.1.)
Ordinarily a ruling on a demurrer raises a pure question of law, as whether a complaint states a legally sufficient cause of action. (Code Civ.Proc., § 589.) Where, as here, the respondent files both an answer and a demurrer to the petition, the issue confronting the trial court may be a mixed question of law and fact. (See, e.g., Sears, Roebuck & Co. v. Walls (1960) 178 Cal.App.2d 284, 288, 2 Cal.Rptr. 847.) Many appellate opinions proceed directly to the merits without identifying a standard of review. (See, e.g., Simpson v. Hite (1950) 36 Cal.2d 125, 127, 222 P.2d 225; Burdick v. City of San Diego (1938) 29 Cal.App.2d 565, 566, 84 P.2d 1064.) We think that the determination of whether a particular Park District resolution is a legislative or an administrative act is a mixed question of law and fact. The traditional standard of review for the granting or denying of a writ is a limited determination of whether or not the judgment is supported by substantial evidence. (W.W. Dean & Associates v. City of South San Francisco (1987) 190 Cal.App.3d 1368, 1371, 236 Cal.Rptr. 11.) Usually an appellate court exercises its independent judgment on a legal issue. (See, e.g., Porten v. University of San Francisco (1976) 64 Cal.App.3d 825, 827–828, 134 Cal.Rptr. 839.) As the question considered below was a mixed one of law and fact, we independently review legal issues; and insofar as the judgment below was based on factual determinations, we examine whether it was supported by substantial evidence.
Initiative is “the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them.” (Cal. Const., art. 2, § 8(a).) Referendum is “the power of the electors to approve or reject statutes or parts of statutes” (with certain exceptions). (Id. at art. 2, § 9(a).) These powers are reserved by the people to themselves, and not granted to them by the Legislature. (Builders Assn. of Santa Clara–Santa Cruz Counties v. Superior Court (1974) 13 Cal.3d 225, 231, 118 Cal.Rptr. 158, 529 P.2d 582.) Through initiative the people may enact legislation on any subject without limitation (Carlson v. Cory (1983) 139 Cal.App.3d 724, 728, 189 Cal.Rptr. 185), except that local electors may be limited to subjects on which their own governing body could legislate (City and County of San Francisco v. Patterson (1988) 202 Cal.App.3d 95, 101, 248 Cal.Rptr. 290 [scope of voters' initiative power no broader than powers of board of supervisors] ). Because cities and other public entities must be free to carry out the public business without constant interference in executive and administrative matters (Simpson v. Hite, supra, 36 Cal.2d at p. 130, 222 P.2d 225), the power of referendum may be used only to repeal or to approve legislative and not administrative acts (Burdick v. City of San Diego, supra, 29 Cal.App.2d at p. 566, 84 P.2d 1064). Because all power of government ultimately resides with the people, courts must jealously guard the people's right of referendum. (Associated Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, 591, 135 Cal.Rptr. 41, 557 P.2d 473.) The power of referendum is to be liberally construed, and if doubts can be resolved in favor of the use of the reserve power, courts preserve it. (Id. at p. 591, 135 Cal.Rptr. 41, 557 P.2d 473.)
Because the voters may challenge legislative but not administrative acts by referendum, we must understand the distinction. “Acts constituting a declaration of public purpose, and making provision for ways and means of its accomplishment, may be generally classified as calling for the exercise of legislative power.” (McKevitt v. City of Sacramento (1921) 55 Cal.App. 117, 124, 203 P. 132.) “Acts which are to be deemed as acts of administration, and classed among those governmental powers properly assigned to the executive department, are those which are necessary to be done to carry out legislative policies and purposes already declared by the legislative body, or such as are devolved upon it by the organic law of its existence.” (Ibid.) For instance, a resolution of the City of Sausalito to purchase waterfront property known as Shelter Cove for use as a park, playground, and open space, is a legislative act subject to referendum. (Reagan v. City of Sausalito (1962) 210 Cal.App.2d 618, 621, 624, 26 Cal.Rptr. 775.) Where the planning commission of the City of San Carlos first adopted a development plan for a particular parcel of real property, and later resolved to approve the developer's precise plan as presented, the latter act was administrative in character and not subject to referendum. (Lincoln Property Co. No. 41, Inc. v. Law (1975) 45 Cal.App.3d 230, 232–235, 119 Cal.Rptr. 292.)
Another exception to the power of referendum occurs when a local proposal impinges on a matter of statewide concern, and the state legislation is thought to preempt the particular field of endeavor. For instance, where by statute counties were under a mandatory duty to provide suitable quarters for their municipal and superior courts, the local agency's selection of a site, employment of architects, and contracting for construction of a building, were held to be administrative acts. (Simpson v. Hite, supra, 36 Cal.2d at pp. 130–131, 222 P.2d 225.) The court reasoned that the state had declared the policy of providing courthouses, and had designated the board of supervisors to carry out that policy. (Id. at p. 129, 222 P.2d 225.) The board, then, was under a mandatory duty to provide courthouses, and if decisions such as the selection of a site were subject to initiative or referendum, the board might never accomplish its mission. (Id. at pp. 132–133, 222 P.2d 225.) This case also illustrates the principle that if subjecting a measure to initiative or referendum will make it impossible or extremely difficult for a public agency to carry out its essential business, that this is a consideration for the court in determining whether initiative or referendum is appropriate. (Ibid.)
Propriety of Pre–Election Judicial Review
Appellant contends that the Park District had a ministerial duty to process the referendum petitions, and that pre-election judicial review of the substantive merits of the referendum was therefore improper.
The practice of courts in determining the validity of a measure prior to its enactment stems from the courts' inherent equitable power to prevent the public waste of a special election to enact a measure which will be void. (Greenberg, The Scope of Initiative and Referendum in California (1966) 54 Cal.L.Rev. 1717, 1726.) This practice, applied often, is explained in an early case: “Where it is proposed to hold an election for the submission of a measure to the popular vote, and that measure will be wholly void and inoperative even if adopted by the people, the courts may, at the instance of a resident taxpayer, enjoin the holding of the election upon the ground that it will be a useless expenditure and waste of public funds [citation].” (Harnett v. County of Sacramento (1925) 195 Cal. 676, 683, 235 P. 445.)
In American Federation of Labor v. Eu (1984) 36 Cal.3d 687, 690–691, 206 Cal.Rptr. 89, 686 P.2d 609, the court considered an original petition for writ of mandate to order Secretary of State March Fong Eu to refrain from placing a proposed Balanced Federal Budget Statutory Initiative on the general election ballot. The effect of the initiative would have been to compel the California Legislature to apply to Congress to call for a constitutional convention to propose an amendment to the United States Constitution to require a balanced federal budget. (Id. at p. 691, 206 Cal.Rptr. 89, 686 P.2d 609.) Article 5 of the United States Constitution allows for proposing its amendment by the Congress, when two-thirds of each house agree, or by application by state legislatures of two-thirds of the states. (Ibid.)
In determining the propriety of pre-election review, the court noted the general principle that, absent clear invalidity, it is more appropriate to review a challenge to an initiative's substance as unconstitutional after an election than before. (American Federation of Labor v. Eu, supra, 36 Cal.3d at p. 695, 206 Cal.Rptr. 89, 686 P.2d 609.) However, a challenge that goes to the people's power to enact an initiative, is a proper subject for pre-election review. (Ibid.) It would be a waste of effort and a source of confusion for the electors to vote on a measure they have no power to enact in the first place, and such a measure must be excluded from the ballot. (Ibid.; see also Brosnahan v. Eu (1982) 31 Cal.3d 1, 6, 181 Cal.Rptr. 100, 641 P.2d 200 (conc. and dis. opn. of Mosk, J.).) The court concluded the electors were without the power to enact the initiative, first because the federal constitution vested the power to call for a constitutional convention in the state legislatures and not in the people of a state, and second because an action calling for a resolution that the federal budget be balanced, was not the adoption of a statute, within the meaning of the California Constitution's definition of the initiative power. (American Federation of Labor v. Eu, supra, 36 Cal.3d at pp. 697–709, 206 Cal.Rptr. 89, 686 P.2d 609.)
Farley v. Healey (1967) 67 Cal.2d 325, 62 Cal.Rptr. 26, 431 P.2d 650, upon which Association relies, is actually consistent with the principles discussed above. On advice of the city attorney, the registrar of voters of San Francisco declined to place an initiative on the ballot even though it met the procedural requirements. (Id. at p. 326, 62 Cal.Rptr. 26, 431 P.2d 650.) The measure provided: “ ‘It is the policy of the people of the City and County of San Francisco that there be an immediate ceasefire and withdrawal of U.S. troops from Vietnam so that the Vietnamese people can settle their own problems.’ ” (Id. at p. 328, 62 Cal.Rptr. 26, 431 P.2d 650.) The city charter defined the scope of initiative as the same as the powers of the board of supervisors. (Ibid.) Since the board of supervisors could and did express views on policy matters which they could not directly affect (as commending President Johnson on his stand in the Arab–Israeli crisis and urging him to insure free navigation for all nations of the Gulf of Aqaba), San Francisco voters too could express their view by such a declaration of policy. (Id. at pp. 328–329, 62 Cal.Rptr. 26, 431 P.2d 650.) The registrar of voters was directed to validate the signatures, and to place the measure on the ballot if it qualified. (Id. at p. 329, 62 Cal.Rptr. 26, 431 P.2d 650.) The registrar of voters acted outside his authority in declining to place the measure on the ballot (id. at p. 327, 62 Cal.Rptr. 26, 431 P.2d 650), but it should be noted that the court then did engage in pre-election review of the question of whether the voters had the power to enact such an initiative under the city charter, and found that they did.
In Brosnahan v. Eu, supra, 31 Cal.3d at page 2, 181 Cal.Rptr. 100, 641 P.2d 200, the court considered a pre-election challenge to the validity of Proposition 8, “The Victims' Bill of Rights.” The court there observed and followed the principle that constitutional challenges to an initiative are best considered after an election, if the initiative passes. (Id. at p. 4, 181 Cal.Rptr. 100, 641 P.2d 200.) Justice Mosk in his concurring and dissenting opinion stated his belief that the court should reach the issue of whether the initiative violated the constitutional single subject rule. (Id. at p. 6, 181 Cal.Rptr. 100, 641 P.2d 200.) Application of the rule went not to the substantive constitutionality of the measure, he argued, but to the power of the people to enact it. (Ibid.) Many times election officials have been ordered not to place initiative or referendum proposals on the ballot on the ground the people did not have the power to enact them, either because they were not legislative in character (Simpson v. Hite, supra, 36 Cal.2d at pp. 130–131, 222 P.2d 225 [providing suitable quarters for courts a matter of statewide concern]; Fishman v. City of Palo Alto (1978) 86 Cal.App.3d 506, 511–512, 150 Cal.Rptr. 326 [approval of covering existing parking spaces in a condominium parking lot administrative and not legislative act] ); or because the subject was not a municipal affair (Mervynne v. Acker (1961) 189 Cal.App.2d 558, 565–566, 11 Cal.Rptr. 340 [parking meters and traffic flow matters of statewide concern] ); or because the proposal amounted to a revision and not an amendment of the state constitution (McFadden v. Jordan (1948) 32 Cal.2d 330, 349–351, 196 P.2d 787).
Although we think the distinction between pre-election review of an initiative's substance for constitutionality and pre-election review to determine whether a measure is within the initiative or referendum power is elusive, here we find that pre-election review by the trial court was appropriate.
Is Resolution No. 89–03 a Legislative Act Subject to Referendum?
The fundamental decision we review is the trial court's finding that Resolution No. 89–03 was an administrative act, and thus not subject to referendum. For the sake of clarity, we here set out the substance of the relevant resolutions and of the referendum petition, and an excerpt from the relevant statute (Prop. 70).
First, the Park District's Resolution No. 88–05 approved the application for grant funds under Proposition 70 or the California Wildlife, Coastal, and Park Land Conservation Act of 1988 for the Garland Ranch Regional Park Expansion and the Bixby Creek Watershed Acquisition. The Board directed the general manager of the Park District to make the application, to conduct negotiations, and to enter into agreements and process payment requests as necessary; and the Board certified that the funds would be spent before July 1, 1998. The resolution passed August 1, 1988.
By Resolution No. 89–03, the board of directors of the Park District authorized the purchase from the Big Sur Land Trust of the Bixby Creek parcel for $1,314,407, with the price to increase $263 per day beginning February 1, 1989. The board authorized the Park District manager to sign the attached purchase agreement.
Association's petition seeks to subject Resolution No. 89–03 to referendum, and expresses the view that a scientific nature preserve without public use would be a more appropriate use for the Bixby Creek parcel than the limited-access public park use planned by Park District.
The legislative intent of the California Wildlife, Coastal, and Park Land Conservation Act is expressed in section 5905, quoted ante. Section 5907 provides that money deposited in the fund “shall be available” for expenditure in certain amounts, and appoints the Parks and Recreation Department to administer the grants, and allocates $2 million in subdivision (b)(3)(J) for a grant to the Monterey Peninsula Regional Park District to expand the Garland Ranch Regional Park and for acquisition of natural lands and wildlife and riparian habitat in the Bixby Creek watershed. If funds made available by the Act are not spent by 1998, they revert, with legislative approval, to the Parks and Recreation Department generally. (§ 5922.)
First, we reject respondent's argument that Resolution No. 89–03 is not subject to referendum because it is not a “statute.” The principle here is whether an action by a local board or agency is legislative or administrative, and it does not matter whether the proposal is called an ordinance, a resolution, or something else. (Hopping v. Council of City of Richmond (1915) 170 Cal. 605, 611, 150 P. 977.) Its character, not its name, is what subjects a decision to referendum. (Ibid.)
In determining whether Resolution No. 89–03 is a legislative or an administrative act, the pivotal logical inquiry is whether the state statute occupies the field in such a way as to render all local action administrative. There are three types of cases involved here: in the first the state statute is mandatory and all local action is therefore administrative; in the second the state statute is discretionary but occupies the field in such a way as to make local action administrative; and in the third the statute is discretionary and the initial local action is legislative.
The first type is exemplified by Simpson v. Hite, supra, 36 Cal.2d 125, 222 P.2d 225. The statute at issue provided: “[T]he board of supervisors shall provide suitable quarters” for municipal and superior courts. (Id. at p. 129, 222 P.2d 225, emphasis added.) Since the Los Angeles County Board of Supervisors was under a mandatory duty to provide suitable quarters for courts, it follows that all the basic decisions necessary to performing such a task (selecting a site, hiring architects, entering into a contract for construction of a courthouse) were administrative acts. (Id. at pp. 130–131, 222 P.2d 225.)
Mervynne v. Acker, supra, 189 Cal.App.2d 558, 11 Cal.Rptr. 340, represents the second type of case. The San Diego City Council had passed certain ordinances regarding where parking meters should be placed on the streets of the city. (Id. at p. 560, 11 Cal.Rptr. 340.) Voters presented to the city clerk an initiative petition that would repeal all the parking meter ordinances, and on advice of the city attorney the clerk declined to process the petitions, on the ground that repealing the parking meter ordinances was not a proper subject of initiative. (Ibid.) The court noted that placement of parking meters is a means of controlling traffic, and determined that controlling traffic is a matter under exclusive state control. (Id. at pp. 561–562, 11 Cal.Rptr. 340.) Vehicle Code section 21 provided that the provisions of the code controlled throughout the state and that no local authority “shall” enact or enforce any ordinance on matters covered in the code unless authorized by it. (Id. at p. 563, 11 Cal.Rptr. 340.) Vehicle Code section 22508 in turn provided that local authorities “may” by ordinance establish parking meter zones. (Id. at p. 564, 11 Cal.Rptr. 340.) The court concluded that the state had exclusive control of traffic regulation and that it delegated exclusively to the city council (and not to the voters of the city) the authority to define parking meter zones. (Id. at pp. 564–565, 11 Cal.Rptr. 340.) Placement of parking meters was not a “municipal affair” subject to the initiative power. (Id. at p. 561, 11 Cal.Rptr. 340.) The city council's ordinances were administrative in character since they carried out state policy in a matter of statewide concern. (Id. at pp. 564–566, 11 Cal.Rptr. 340.)
Yost v. Thomas (1984) 36 Cal.3d 561, 205 Cal.Rptr. 801, 685 P.2d 1152, represents the third type. The issue was whether the California Coastal Act (§ 30000 et seq.) precluded a referendum on a local land use measure affecting the coastal zone which was adopted by the city council after the California Coastal Commission approved the plan. (Id. at p. 564, 205 Cal.Rptr. 801, 685 P.2d 1152.) The city council passed three resolutions enabling a developer to construct a hotel and conference center on what was known as the Southern Pacific property in the coastal zone. (Id. at p. 565, 205 Cal.Rptr. 801, 685 P.2d 1152.) Voters in the City of Santa Barbara presented petitions to subject the three resolutions to a referendum to the city clerk, who on the advice of the city attorney declined to process them on the ground the actions were not subject to referendum. (Id. at p. 564, 205 Cal.Rptr. 801, 685 P.2d 1152.) The voters petitioned for a writ of mandate, and the trial court denied it on the ground the proposed referendum would be legally invalid. (Ibid.)
The California Coastal Act which was passed by the Legislature, has, like the Wildlife, Coastal, and Park Land Conservation Act, a broad statement of legislative intent: to protect the state's natural and scenic resources, to protect the ecological balance of the coastal zone, to control planned development consistent with conservation goals. (Yost v. Thomas, supra, 36 Cal.3d at pp. 565–566, 205 Cal.Rptr. 801, 685 P.2d 1152.) Local land use plans were to be submitted to the Coastal Commission for approval. (Id. at p. 566, 205 Cal.Rptr. 801, 685 P.2d 1152.) Santa Barbara submitted a land use plan which included the hotel and conference center to the Coastal Commission which approved it. (Id. at pp. 567–569, 205 Cal.Rptr. 801, 685 P.2d 1152.) The city council then enacted the three enabling resolutions which the voters sought to subject to referendum. (Id. at p. 569, 205 Cal.Rptr. 801, 685 P.2d 1152.)
The court concluded the resolutions were legislative acts subject to referendum. (Yost v. Thomas, supra, 36 Cal.3d at pp. 569–570, 205 Cal.Rptr. 801, 685 P.2d 1152.) Respondents and the developer argued that the Coastal Act established a pervasive system of state regulation over a matter of statewide concern, so that implementing acts of local governments were administrative in character. (Id. at p. 571, 205 Cal.Rptr. 801, 685 P.2d 1152.) The court agreed that the Act was an attempt to deal with coastal land on a statewide basis, but noted that state regulation of a matter does not necessarily preempt the power of local voters to act through initiative and/or referendum. (Ibid.) Discretion was afforded local agencies, which could regulate development more strictly than the guidelines of the Coastal Commission did. (Id. at p. 572, 205 Cal.Rptr. 801, 685 P.2d 1152.) Because the Act left wide discretion to local governments to determine the land use plans and how to implement them, the city was acting legislatively and its resolutions were subject to referendum. (Id. at p. 573, 205 Cal.Rptr. 801, 685 P.2d 1152.)
Another case in which a discretionary state statute did not convert local action into administrative action is Reagan v. City of Sausalito, supra, 210 Cal.App.2d at p. 624, 26 Cal.Rptr. 775. Section 5303 provided that the legislative body of any city could, in the exercise of its discretion, acquire lands for parks and improve, equip, and maintain them. (Ibid.) The Sausalito City Council passed a resolution to acquire property known as Shelter Cove for a municipal park, to which city voters presented a referendum petition. (Id. at p. 621, 26 Cal.Rptr. 775.) On advice of the city attorney, the council declined to process the referendum petition, on the ground the resolution was an administrative act, not a legislative act, and therefore not subject to referendum. (Ibid.) The court held that the resolution approving purchase of the land was the first council action declaring the policy to acquire it, and that the resolution was therefore legislative and subject to referendum. (Id. at pp. 623–624, 26 Cal.Rptr. 775.)
We find that the Wildlife, Coastal and Park Land Conservation Act would have presented a case of the third type if Association had challenged Resolution No. 88–05. That is, although the statute authorizes purchase and preservation of parkland, Park District's first act to approve application for a grant under the Act was a legislative act subject to referendum. (Reagan v. City of Sausalito, supra, 210 Cal.App.2d at pp. 624–625, 26 Cal.Rptr. 775.) Though the intent of the Act is very broad, there are at least three areas of discretion that convince us that the state does not occupy the field to the exclusion of local voters. The statute is discretionary because it does not say that the Park District “shall” acquire the Bixby Creek parcel; it says that funds will be made available so that the first area of discretion is whether the local agency will participate in the grant program or not. The second area of discretion is exactly what use the acquired land should be put to, because although the Act's general purpose is set out, the specific uses for the land are not. The third aspect of the Act which tells us the state does not preempt the field is that it is not exclusive; local agencies may acquire other lands for public parks that are not mentioned in the Act. This reinforces the notion that the state does not intend to occupy the field exclusively, the way it does, for instance, in traffic regulation. (Mervynne v. Acker, supra, 189 Cal.App.2d 558, 11 Cal.Rptr. 340.)
While the Act declares the policy of the people of the state, it is for localities to determine whether they will participate in the grant program, and this initial decision then is a legislative one. In the instant case the Park District's Resolution No. 88–05 was the legislative act. It declared the purpose of the Park District to acquire the Bixby Creek watershed parcel, and specified the ways and means (by application for Prop. 70 funds) of accomplishing that purpose. It follows that Resolution No. 89–03 was merely an administrative act (implementing the already-declared policy of Res. No. 88–05), not subject to referendum.
The trial court's finding that Resolution No. 89–03 was an administrative act and not subject to referendum was proper, and the petition for a writ of mandate was properly denied. By the same token, the trial court's order sustaining the demurrer without leave to amend was proper.
The orders are affirmed. Costs on appeal are awarded to respondents.
1. The property which is located in the Palo Colorado Canyon region is variously referred to in the record as the Philo property, the Upper Bixby–Turner Creek watershed property, and the Mill Creek property.
2. Resolution No. 84–12 recommended that the Department of Parks and Recreation consider acquisition of the property as parkland; Resolution No. 84–13 asked the county board of supervisors to identify the property for possible acquisition as parkland in the Big Sur Land Use Plan.
3. Policy No. 3.5.3.(11) reads: “In the upper Bixby–Turner Creek watershed, every effort should be made to explore potential public acquisition of this scenic area for recreation and aesthetic enjoyment prior to the issue of permits for timber harvesting.”Policy No. 3.5.4.(2) reads: “Public agencies should fully explore the possible public acquisition of the upper Bixby–Turner Creek watershed for recreational aesthetic purposes.”
4. Further statutory references are to the Public Resources Code unless otherwise indicated.
PREMO, Acting Presiding Justice.
COTTLE and ELIA, JJ., concur.