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Court of Appeal, First District, Division 1, California.

Richard M. DEVITA et al., Plaintiffs and Appellants, v. COUNTY OF NAPA, et al., Defendants and Respondents.

No. A059429.

Decided: December 16, 1993

Mark L. Armstrong,Charles A. Klinge, Gagen, McCoy, McMahon & Armstrong, Danville, for plaintiffs/appellants. Robert Westmeyer, County Counsel, Margaret Woodbury, Chief Deputy Co. Counsel, Napa County, Napa, Mark I. Weinberger, Rachel B. Hooper, Christy H. Taylor, Shute, Mihaly & Weinberger, San Francisco, for defendants/respondents. Daniel P. Selmi, Los Angeles, for amicus curiae Napa County Farm Bureau. Ronald A. Zumbrun, James S. Burling, Edward J. Connor, Jr., Pacific Legal Foundation, Sacramento, for amicus curiae Pacific Legal Foundation.

This appeal concerns a challenge to a local initiative, Measure J, adopted by Napa County voters to preserve agricultural land.   On March 6, 1991, a California corporation, Security Owners Corporation, Inc., a California non-profit association, Building Industry Association of Northern California and five residents of Napa County, Richard M. DeVita, Al C. Fournier, Matthew A. Thomson, Lilburn Clark, and Shirley E. McQueeney, (hereafter appellants) filed a complaint against Napa County and Napa County Board of Supervisors (hereafter County) seeking a declaratory judgment that Measure J is invalid and a writ of mandate ordering the board of supervisors to cease enforcing the measure.   The matter was tried in Napa County Superior Court on joint exhibits and an extensive “Stipulation to Agreed and Admitted Facts and Admissibility of Evidence.”   After a hearing on June 12, 1992, the trial court issued a 21–page decision declaring the initiative to be valid and dismissing the petition for writ of mandate.

In general, Measure J confirms existing portions of the general plan relating to agricultural land through use of the initiative power, thus ensuring that these portions of the plan cannot be changed without a vote of the people.  (Elec.Code, § 3719.)   Specifically, it readopts the portions of the Napa County General Plan Land Use Element classifying land as “Agricultural Resource” and “Agriculture, Watershed, and Open Space” and restates certain policies of the general plan, concerning minimum lot size and residential density, applying to these classifications of land.

In addition, Measure J adds subsection 9 to the Napa County General Plan Land Use Element which explicitly restricts changes in agricultural land use without a vote of the people.   Subsection 9 provides that, until December 31, 2020, the portions of the general plan relating to land designated “Agricultural Resources” or “Agriculture, Watershed, and Open Space” can be amended only upon a vote of the people, except under certain specified conditions.   These conditions include (1) a redesignation of land use upon annexation to a city, (2) a redesignation upon certain specified findings to the effect that the land is physically unusable for agriculture, (3) a change in land use required for the siting of a solid waste disposal facility, or (4) the necessity of removing restrictions to avoid an unconstitutional taking of property.

We will consider, first, the readoption of the portions of the general plan pertaining to agricultural land use and, secondly, the requirement of voter approval for future amendment of these portions of the plan.   With respect to the first issue, appellants do not contend that Measure J suffers from some legal defect not applying to other similar initiatives.   Thus, they do not question the trial court's finding that “there is no evidentiary showing that the amendment either facially will result or as applied has resulted in any internal inconsistency between that portion of the amended Land Use Element affecting [agricultural land use] and the other elements of the General Plan including the housing and circulation elements.”   Instead, challenging a settled assumption in California case law, they raise the fundamental question whether a general plan may be adopted or amended by initiative.

 Two Court of Appeal decisions hold squarely that a general plan may be amended through the initiative power (Save Stanislaus Area Farm Economy v. Board of Supervisors (1993) 13 Cal.App.4th 141, 16 Cal.Rptr.2d 408;  Duran v. Cassidy (1972) 28 Cal.App.3d 574, 104 Cal.Rptr. 793) and other decisions reflect this assumption in dicta (Committee of Seven Thousand v. Superior Court (1988) 45 Cal.3d 491, 247 Cal.Rptr. 362, 754 P.2d 708;  L.I.F.E. Committee v. City of Lodi (1989) 213 Cal.App.3d 1139, 262 Cal.Rptr. 166) or in the disposition of the case.  (Garat v. City of Riverside (1991) 2 Cal.App.4th 259, 3 Cal.Rptr.2d 504;  Building Industry Assoc. v. Superior Court (1989) 211 Cal.App.3d 277, 259 Cal.Rptr. 325;  Lee v. City of Monterey Park (1985) 173 Cal.App.3d 798, 219 Cal.Rptr. 309.) 1  The attorney general reached the same conclusion in a published opinion.  (66 Ops.Cal.Atty.Gen. 258 (1983).)

While the Supreme Court has addressed the precise issue only in dicta, it held in Yost v. Thomas (1984) 36 Cal.3d 561, 205 Cal.Rptr. 801, 685 P.2d 1152, that an amendment to a general plan is subject to referendum.  (Accord:  O'Loane v. O'Rourke (1965) 231 Cal.App.2d 774, 42 Cal.Rptr. 283;  Midway Orchards v. County of Butte (1990) 220 Cal.App.3d 765, 269 Cal.Rptr. 796;  cf. Lee v. City of Lompoc (1993) 14 Cal.App.4th 1515, 18 Cal.Rptr.2d 389 [special election].)   We see no warrant in constitutional language or precedent for distinguishing this precedent.  “There is no textual basis for construing the power of referendum as broader than the initiative power, or vice versa.”  (Save Stanislaus Area Farm Economy v. Board of Supervisors, supra, 13 Cal.App.4th at p. 152, fn. 3, 16 Cal.Rptr.2d 408.)   The courts have always regarded the initiative and referendum powers as being coextensive.   An early precedent, Dwyer v. City Council (1927) 200 Cal. 505, 511, 253 P. 932, states, “ ‘if the right of referendum can be invoked, the corollary right to initiate legislation must be conceded to exist.’ ”  (Quoted in Associated Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, 595, 135 Cal.Rptr. 41, 557 P.2d 473.)

 Similarly, the Supreme Court upheld in Associated Home Builders etc., Inc. v. City of Livermore, supra, 18 Cal.3d 582, 135 Cal.Rptr. 41, 557 P.2d 473 the power of local electorate to adopt zoning ordinances by initiative.   We see no plausible basis for distinguishing amendments to zoning ordinances and amendments to the general plan.   Both are forms of local legislation (Gov.Code § 65301.5),2 subject to similar statutory procedures in general law cities and counties (compare:  §§ 65350 through 65361 and §§ 65850 through 65863.9), which may have either a local or regional impact.  (See Associated Home Builders etc., Inc. v. City of Livermore, supra 18 Cal.3d at 607, 135 Cal.Rptr. 41, 557 P.2d 473.)   Both have the same function as land use controls in general law cities and counties.   Amendments to the Planning and Zoning Law in 1971 and 1974 elevated the general plan to the status of “ ‘the basic land-use charter governing the direction of future land use in the local jurisdiction.’ ”  (Save Stanislaus Area Farm Economy v. Board of Supervisors, supra, 13 Cal.App.4th at p. 145, fn. 2, 16 Cal.Rptr.2d 408.)   Zoning ordinances must be consistent with the general plan and serve only to implement prior land use decisions reflected in the general plan.  (§ 65860.)

Appellants pursue this appeal in reliance on dicta in Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, 539, 277 Cal.Rptr. 1, 802 P.2d 317 (hereafter Lesher ), noting that the Supreme court “has never considered whether a general plan may be adopted or amended by initiative.”   In that case, several amici curiae argued that the Planning and Zoning Law preempts the local initiative power with respect to general plans.   The Supreme Court did not reach the issue because it concluded that the measure at issue did not constitute a general plan amendment.   Appellants view the Lesher dicta as opening for reconsideration the issue raised in this appeal.   As a court of appeal, we remain bound to affirm the trial court's decision under authority we have reviewed, but the Lesher dicta does suggest the need for a careful analysis of the issue, going beyond simple application of the principles of stare decisis.

Like the amici curiae in Lesher, appellants rely on the rule that “[m]atters of statewide concern, delegated to local governments by the Legislature, are not subject to the initiative or referendum at the local level.”  (7 Witkin, Summary of Cal. Law (9th ed. 1988) Constitutional Law, § 124, p. 179;  Reagan v. City of Sausalito (1962) 210 Cal.App.2d 618, 624–625, 26 Cal.Rptr. 775.)   As explained in Committee of Seven Thousand v. Superior Court, supra, 45 Cal.3d at p. 511, 247 Cal.Rptr. 362, 754 P.2d 708, “[i]n matters of statewide concern, the state may if it chooses preempt the entire field to the exclusion of all local control.   If the state chooses instead to grant some measure of local control and autonomy, it has authority to impose procedural restrictions on the exercise of the power granted, including the authority to bar the exercise of the initiative and referendum.”

In concept, the existence of a statewide concern is a threshold question which might be analyzed before addressing the issue of statutory delegation.   But the present case does not permit any sweeping classification going beyond the precise context of a particular statute;  the general plan is a comprehensive document that overlaps the categories of statewide or local concern.

Section 65301, subdivision (c), provides that the general plan shall address seven elements specified in Section 65302—land use, circulation, housing, conservation, open-space, noise, and safety.   At least one of these elements, housing, falls unambiguously into the category of statewide concern.   (Building Industry Assn. v. Superior Court, supra, 211 Cal.App.3d 277, 291, 259 Cal.Rptr. 325;  Buena Vista Gardens Apartments Assn. v. City of San Diego Planning Dept. (1985) 175 Cal.App.3d 289, 306–307, 220 Cal.Rptr. 732;  § 65580.)   Other elements affect certain statewide interests but involve a core area of local concern.   This can be seen most clearly in the case of the circulation element.   It is well established that “major highways” are a matter of statewide concern but “street work” generally is a matter of local concern.  (Committee of Seven Thousand v. Superior Court, supra, (1988) 45 Cal.3d at pp. 505–506, 247 Cal.Rptr. 362, 754 P.2d 708.)   The general plan, which must address “major thoroughfares, transportation routes, terminals,” clearly affects statewide interests, but it also deals with the planning of local streets, a matter of local concern.   Again, the open-space elements affects certain statewide interests noted in Section 65561, but it may also provide for the location of parks or greenways of merely local concern.

 Appellants point out that there is a state interest in the process of planning, that is, in the exercise of some comprehensive control over land use.  “The state's interest in requiring all counties and cities in California to adopt general plans seems clear-cut․  ‘The deleterious consequences of haphazard community growth in this state and the need to prevent further random development are evident to even the most casual observer․’ ”  (City of Los Angeles v. State of California (1982) 138 Cal.App.3d 526, 533, 187 Cal.Rptr. 893.)   Reflecting this interest, Section 65700 requires charter cities to prepare general plans containing the mandatory elements.   This provision, which has passed judicial scrutiny (ibid.;   Garat v. City of Riverside, supra, 2 Cal.App.4th 259, 285, 3 Cal.Rptr.2d 504;  Buena Vista Gardens Apartments Assn. v. City of San Diego Planning Dept., supra, 175 Cal.App.3d 289, 307, 220 Cal.Rptr. 732), would be an unconstitutional intrusion into home rule in the absence of a statewide interest.  (Johnson v. Bradley (1992) 4 Cal.4th 389, 394–400, 14 Cal.Rptr.2d 470, 841 P.2d 990.)   However, it would be illogical to infer from this statewide interest in the process of planning that all aspects of the general plan fall within an area of statewide concern.

 The case law in this area has in fact traditionally viewed the adoption and amendment of a general plan as a “local legislative matter and not of statewide concern.”  (E.g., Duran v. Cassidy, supra, 28 Cal.App.3d 574, 583, 104 Cal.Rptr. 793;  O'Loane v. O'Rourke, supra, 231 Cal.App.2d 774, 783, 42 Cal.Rptr. 283;  Fletcher v. Porter (1962) 203 Cal.App.2d 313, 319, 21 Cal.Rptr. 452.)   This language attests to the central importance of local concern, and it is relevant to an interpretation of legislative intent;  it may be inferred that the Legislature amended legislation with knowledge of prevailing judicial interpretations.   But the language must be considered in its context.  “As conditions in the state change, what was once a matter of local concern may later become a matter of statewide concern controlled by general law.”  (City of Los Angeles v. State of California, supra, 138 Cal.App.3d 526, 532, 187 Cal.Rptr. 893.)   The increasing body of legislation bearing of local planning tends to support the existence of emerging statewide interests since the courts “will accord ‘great weight’ to the Legislature's evaluation of this question.”  (Baggett v. Gates (1982) 32 Cal.3d 128, 136, 185 Cal.Rptr. 232, 649 P.2d 874.)   Today, it is most realistic to regard the general plan as reflecting a mix of statewide and local concerns, with sufficiently large element of statewide concerns to justify inquiry into statutory delegation of power from the state to local governments.

 Appellants rest their theory of statutory delegation on Sections 65356 and 65358, subdivision (a), which give the “legislative body” of cities and counties the power to adopt and amend the general plan.   Section 65356 provides in pertinent part:  “The Legislative body shall adopt or amend a general plan by resolution, which resolution shall be adopted by the affirmative vote of not less than a majority of the total membership of the legislative body.   The legislative body may approve, modify, or disapprove the recommendation of the planning commission, if any.   However, any substantial modification proposed by the legislative body not previously considered by the commission during its hearings, shall first be referred to the planning commission for its recommendation.”   Section 65358 adds that:  “(a) [t]he legislative body may amend all or part of an adopted general plan,” subject to certain procedures.   These provisions, appellants argue, give the legislative body exclusive power to amend a general plan, precluding amendment by initiative.3

Our point of departure in construing these references to “legislative body” is Committee of Seven Thousand v. Superior Court, supra, 45 Cal.3d 491, 247 Cal.Rptr. 362, 754 P.2d 708.   Although it concerns a statute with clearly distinguishable language, the decision offers an exhaustive analysis of statutory references of this sort which is applicable to the present case.   The Committee of Seven Thousand decision construed Section 66484.3 which gave “ ‘[t]he board of supervisors of the County of Orange and the city council of any city in that county” authority to impose a development fee to finance major highway construction.   Holding that the statute precluded exercise of the initiative power, the court relied on the specific nature of the reference to “board of supervisors” and “city council” and the existence of a statewide concern governing highway construction.  (Id. at p. 501, 247 Cal.Rptr. 362, 754 P.2d 708.)

With respect to its own precedents, the Supreme Court observed, “Over the years this court has struggled with the question whether a statutory reference to action by a local legislative body indicates a legislative intent to preclude action on the same subject by the electorate.   A review of these decisions supports the conclusion that while such references are generally not conclusive as to legislative intent, they do support an inference that the intent was to preclude action by initiative or referendum.   Review of the case law further suggests that the strength of the inference varies according to the precise language used in the statute, a reference using generic language such as ‘governing body’ or ‘legislative body’ supporting a weaker inference than a specific reference to boards of supervisors and city councils.   A third conclusion to be drawn is that an intent to exclude ballot measures is more readily inferred if the statute addresses a matter of statewide concern rather than a purely municipal affair.”  (Id. at p. 501, 247 Cal.Rptr. 362, 754 P.2d 708.)

The Court's discussion of Building Industry Assn. v. City of Camarillo (1986) 41 Cal.3d 810, 226 Cal.Rptr. 81, 718 P.2d 68 is particularly relevant to the present case.   There, the court interpreted the provisions of Evidence Code section 669.5 which shifts the burden of proof in actions challenging growth control ordinances “enacted by the governing body of a city․”   The court relied on the legislative history to hold that the statute applied to ordinances enacted by initiative.   An early version of the statute considered by the Legislature excepted ordinances adopted by initiative.  “ ‘[T]he wording of this version indicates that the Legislature must have assumed that measures enacted by a “governing body” included initiatives adopted by the electorate․’   This specific and persuasive evidence of legislative intent was sufficient to rebut the weak inference, arising from the use of the generic term “governing body,” that growth control measures enacted by initiative were not included.”  (Committee of Seven Thousand v. Superior Court, supra, 45 Cal.3d at pp. 503–504, 247 Cal.Rptr. 362, 754 P.2d 708.)

Reviewing Court of Appeal decisions, the Court found several decisions dealing with “generic references, such as ‘legislative body’ or ‘governing body․’ ”   In construing this language, the courts “have generally permitted exercise of the initiative and referendum when the subject matter was of purely local concern [citation] but not when the statute dealt with a matter of statewide concern․”  (Id. at p. 504, 247 Cal.Rptr. 362, 754 P.2d 708.)   More specifically, the court noted that statutes concerning the exercise of land use controls by the “legislative body” have been held to be subject to initiative and referendum.   Thus, “adoption and amendment of a general plan may be the subject to initiative or referendum although section 65356 gives these powers to the ‘legislative body.’ ”  (Ibid.)  The court offered an explanation for this result that appeared to place the general plan in the sphere of local concern;  it commented, “[i]n all these cases the statutes dealt with purely local concerns․”  (Ibid.)

Applying these principles, both parties seek to turn to their own advantage the distinction between local and statewide concern.   Appellants see the general plan as a reflection of statewide concerns;  the County views it as a matter of local concern.   Both arguments appear inconclusive in light of our earlier analysis of local and statewide concerns reflected in the general plan.   Although the general plan has traditionally been regarded as a matter of local concern, closer examination discloses that it affects a mixture of statewide and local concerns, with a core of local concerns in certain areas and dominant statewide concerns in others.   Under these complex circumstances, the distinction between local and statewide concerns offers no clear guide to legislative intent.  (See City of Dublin v. County of Alameda (1993) 14 Cal.App.4th 264, 280, 17 Cal.Rptr.2d 845.)

 The immediate statutory context is similarly inconclusive.   The reference to the “legislative body,” on which appellants rely, does not appear in the introductory statute in the article, Section 65350, which states broadly:  “Cities and counties shall prepare, adopt, and amend general plans and elements of those general plans in the manner provided in this article.”   Under the principle of construing related statutes in pari materia, Isobe v. Unemployment Ins. Appeals Bd. (1974) 12 Cal.3d 584, 590, 116 Cal.Rptr. 376, 526 P.2d 528, the absence of the reference in Section 65350 tends to weaken any inference that the Legislature intended to delegate power specifically to the legislative body.   On the other hand, Section 65358 confers on the “legislative body” a power to amend all or part of a general plan under certain conditions that might be circumvented by the initiative.   (See Elec.Code § 3719.)   If one assumes that the legislative policies underlying these statutory conditions are stronger than those favoring the initiative power—a very doubtful assumption—it could be inferred that the Legislature intended to delegate the power of amendment exclusively to the legislative body.4

A provision of the Elections Code, however, plainly reveals a Legislative understanding that the general plan may be amended by initiative.   Elections Code section 3705.5, enacted in 1987, provides that, before putting an initiative on the ballot, “the board of supervisors may refer [it] to any county agency or agencies for a report” on any matter relevant to an evaluation of the measure, including “[i]ts effect on the internal consistency of the county's general and specific plans․”  (Emphasis added.)   An initiative will not affect the internal consistency of a general plan, unless it is in some sense an amendment to the plan.  (§ 65300.5.)   Appellant argues that initiative measures may have an impact on the internal consistency of the plan without constituting a formal amendment.   But a measure cannot have any substantive impact on the internal consistency of the plan unless it is in effect, if not in form, an amendment to the plan.5

 The legislative understanding that the local initiative power extends to amendments of a general plan, revealed in Elections Code section 3705.5, may be reasonably imputed to the Legislature in adopting and amending Sections 65356 and 65358.  “A statute should be interpreted with reference to the whole system of law of which it is a part.”  (People v. Comingore (1977) 20 Cal.3d 142, 147, 141 Cal.Rptr. 542, 570 P.2d 723.)   Moreover, the legislative understanding merely reflected prevailing judicial interpretations—a factor relevant both to the Elections Code and the Government Code.   As we have seen, the courts have viewed the general plan as a local matter and consistently upheld the initiative and referendum power over general plans.  “The enacting body is deemed to be aware of ․ judicial constructions in effect at the time legislation is enacted.”  (People v. Weidert (1985) 39 Cal.3d 836, 844, 218 Cal.Rptr. 57, 705 P.2d 380.)

In the language of Committee of Seven Thousand v. Superior Court, supra, 45 Cal.3d at pp. 503–504, 247 Cal.Rptr. 362, 754 P.2d 708, we consider that Elections Code section 3705.5 provides “specific and persuasive evidence of legislative intent” which is “sufficient to rebut the weak inference” of delegation of state power, “arising from use of the generic term, ‘governing body․’ ”   Our conclusion is further supported by the general pattern of allowing local control over planning, evident in the statutes and legislative history, that strongly tends to rebut any inference of a legislative intent to preclude local exercise of the initiative and referendum power.

In general, “the Legislature has been sensitive to the fact that planning and zoning in the conventional sense have traditionally been deemed municipal affairs.   It has thus made no attempt to deprive local governments (chartered city or otherwise) of their right to manage and control such matters, but rather has attempted to impinge upon local control only to the limited degree necessary to further legitimate state interests.”  (City of Los Angeles v. State of California, supra, 138 Cal.App.3d 526, 533, 187 Cal.Rptr. 893.)  “Except for mandating the development of a plan, specifying the elements to be included in the plan, and imposing on the cities and counties the general requirement that land use decisions be guided by that plan, the Legislature has not preempted the decision making power of local legislative bodies as to the specific contours of the general plan or actions taken thereunder.”  (Bownds v. City of Glendale (1980) 113 Cal.App.3d 875, 880, 170 Cal.Rptr. 342.)  “ ‘The statutes make clear ․ that local control is at the heart of [the planning and zoning] process․' ”  (Building Industry Assoc. v. Superior Court, supra, 211 Cal.App.3d at p. 291, 259 Cal.Rptr. 325.)

An intent to preserve local autonomy in planning is stated repeatedly in the legislative findings of the Planning and Zoning Law.   Section 65030.1 states:  “The Legislature also finds that decisions involving the future growth of the state, most of which are made and will continue to be made at the local level, should be guided by an effective planning process, including the local general plan, ․”  Similarly, Section 65300.7 states the need for “planning agencies and legislative bodies to implement this article in ways that accommodate local conditions and circumstances, while meeting its minimum requirements.”   Again, Section 65300.9 states the Legislature's intent “to provide an opportunity for each city and county to coordinate its ․ local planning for federal and state program activities ․ with the local land use planning process, recognizing that each city and county is required to establish its own appropriate balance in the context of the local situation․”  (See also § 65800.)

Apart from the area of housing, the Planning and Zoning Law does no more than encourage cooperation and consultation among local governments and state agencies.   Section 65352 instructs the planning agency to refer proposed changes in the general plan to other agencies, including any abutting city or county, affected school districts or special districts, or any state or federal agency engaged in planning or other operations in the area, “as determined by the planning agency.”   Subdivision (c) provides, however, that “[t]his section is directory, not mandatory, and the failure to refer a proposed action to the other entities specified in this section does not affect the validity of the action, if adopted.”   Sections 65919 through 65919.11 create a mandatory system of consultation only for a clearly circumscribed “planning review area,” extending beyond city boundaries within a county.   But the statutes require no more than that affected cities and counties “consider” the other's “comments and recommendations”;  the city or county has freedom to make its own determinations.   Moreover, Section 65919.11 provides that “[f]ailure to comply with the procedural requirements of this chapter shall not affect the validity of any proposed action.”

The portions of the Zoning and Planning Law dealing with the housing element contain a quite distinct statutory scheme, reflecting the state interest in this area of planning.  (See § 65580, subd. (e).)  While local governments generally have much flexibility in drafting the elements of the general plan (§ 65301, subd. (a) and (c), and § 65303), the housing element must comply with the elaborate statutory provisions of division 1, chapter 3, article 10.6, supplemented by the guidelines of the Department of Housing and Community Development.  (§ 65301, subd. (c), § 65302, subd. (c), and § 65585, subd. (a).)  Under Section 65583, the housing element must include “[a]n assessment of housing needs and an inventory of resources,” a statement of “quantified objectives” and policies, and a five-year plan for housing.   The assessment of housing needs must state the municipality's share “of the regional housing need” as determined by the Department of Housing and Community Development and the appropriate council of governments.  (§ 65584, subd. (a).)  Before adopting an amendment to the housing element, a local government must submit a draft to the Department for its review and approval.  (§ 65585, subd. (b) and (d).)   If the department disapproves the draft, the local legislative body may still adopt it upon making a “written findings which explain the reasons the legislative body believes that the ․ draft amendment substantially complies with the requirements of this article․”  (§ 65585, subd. (f)(2).)

In other areas, the Legislature has rejected proposals for statewide planning goals.   In 1983, Assembly Bill No. 2038 effected a comprehensive revision of the Planning and Zoning Law.   As originally proposed, the bill defined five “goals of state interest” and required municipalities to prepare a general plan to carry out these goals.  (Detwiler, The Tree in the Windstorm:  Revising California's Planning Law, California Planner, January–February 1985, p. 8.)   Proposed legislative findings spoke of the need to link state goals with local plans.   As adopted, the bill omitted all mention of state goals and the findings instead stressed local autonomy.  (Stats. 1984, ch. 1009, § 3.5, p. 3482;  § 65300.9.)   A similar legislative history is found in the 1971 amendment of Section 65700 to require charter cities to adopt general plans.   The original version proposed in Senate Bill No. 1489 declared the “state interest” in “the regulation of local planning․”   As enacted, the language was amended to avoid any mention of state interest.  (Stats. 1971, ch. 1803, p. 3901.)   The same insistence on local autonomy is seen in the amendment of Election Code provisions dealing with the initiative power.   In their original form, bills passed in 1988 and 1989 would have subjected initiative proposals to review by state agencies.   The final versions contained nothing to impede the local exercise of the initiative power.6

It is significant that in Yost v. Thomas, supra, 36 Cal.3d 561, 205 Cal.Rptr. 801, 685 P.2d 1152 the Supreme Court upheld the use of the referendum in an area where planning is overlain by a separate system of state controls—The Coastal Act of 1976 (Pub. Resources Code, § 30000 et seq.)   The decision concerned a referendum petition circulated by voters of the City of Santa Barbara opposing a general plan amendment adopted by the city council that permitted development of a tract of coastal land.   The city council adopted a land use plan applying to the tract and submitted it to the California Coastal Commission pursuant to Public Resources Code section 30511.   The commission approved and certified the plan.   The city council subsequently approved a general plan amendment conforming to the certified land use plan.   The city refused to process the referendum petition on the ground that the action of the city council was not subject to referendum.

Reversing the trial court, the Supreme Court noted that “state regulation of a matter does not necessarily preempt the power of local voters to act through initiative and/or referendum.  [Citations.]   The question, therefore, is whether the Legislature intended to preempt local planning authority and thereby preempt the power of the voters to act through referendum.”  (Yost v. Thomas, supra, 36 Cal.3d at p. 571, 205 Cal.Rptr. 801, 685 P.2d 1152.)   The provisions of the Coastal Act of 1976 do “not suggest preemption of local planning by the state, rather they point to local discretion and autonomy in planning subject to review for conformity to statewide standards.”  (Id. at p. 572, 205 Cal.Rptr. 801, 685 P.2d 1152.)   Therefore, the Court concluded that the act “leaves wide discretion to a local government not only to determine the contents of its land use plans, but to choose how to implement these plans.   Under such circumstances a city is acting legislatively and its actions are subject to the normal referendum procedure.”  (Id. at p. 573, 205 Cal.Rptr. 801, 685 P.2d 1152.)

Our recent decision in City of Dublin v. County of Alameda, supra, 14 Cal.App.4th 264, 17 Cal.Rptr.2d 845 offers certain parallels to the Yost decision.   We upheld an initiative proposing a recycling plan in a field of activity extensively regulated by the California Integrated Waste Management Act of 1989 (Pub.Resources Code, § 40000 et seq.), finding that the act allowed “local discretion in developing programs and acknowledges that many aspects of solid waste handling are of local concern.”  (Id. at p. 280, 17 Cal.Rptr.2d 845.)   The pertinent statutes, however, referred to “city” or “county” rather than its legislative body.

The case law we have reviewed reflects a frequently expressed concern to safeguard the constitutional right of initiative.   Citing an earlier precedent, Mervynne v. Acker (1961) 189 Cal.App.2d 558, 563–564, 11 Cal.Rptr. 340, our high court in Building Industry Assn. v. City of Camarillo, supra, 41 Cal.3d at p. 821, 226 Cal.Rptr. 81, 718 P.2d 68, stated, “ ‘ “[I]t has long been our judicial policy to apply a liberal construction to this power wherever it is challenged in order that the right be not improperly annulled.   If doubts can reasonably be resolved in favor of the use of this reserve power, courts will preserve it.” ’ ”  (See also Farley v. Healey (1967) 67 Cal.2d 325, 328, 62 Cal.Rptr. 26, 431 P.2d 650;  Save Stanislaus Area Farm Economy v. Board of Supervisors, supra, 13 Cal.App.4th 141, 150–151, 16 Cal.Rptr.2d 408;  Building Industry Assn. v. Superior Court, supra, 211 Cal.App.3d at p. 290, 259 Cal.Rptr. 325;  Carlson v. Cory (1983) 139 Cal.App.3d 724, 728, 189 Cal.Rptr. 185.)

We find no justification construing the term “legislative body” in Sections 65356 and 65358 to preclude the use of the initiative power.   Any weak inference of a specific delegation to the board of supervisors that might arise from the use of the term is decisively rebutted by the evidence of a contrary legislative intent disclosed by our analysis of Elections Code section 3705.5 and the general statutory pattern favoring local control over planning evident in the Planning and Zoning Law.   We do not reach, however, the more difficult question of the use of the initiative to adopt or amend the housing element of the general plan.   By its terms, Measure J does not address the subject of housing;  and, as noted earlier, the trial court found no inconsistency between the initiative and the housing element of the general plan.

In their second assignment of error, appellants contend that Measure J interferes with the board of supervisors' “duty to amend the general plan”, reflected in Sections 65103, 65588, and 65358.   In our view, only section 65358 is relevant to the present case.   Section 65103 concerns the advisory function of the planning agency which has no actual power to adopt or amend the general plan;  and Section 65588 relates to the amendment of the housing element in the general plan—an issue which we do not reach.

As noted earlier, Measure J provides that, for a period of 30 years, those agricultural sections of the general plan, which it readopts through the initiative power, can be amended only by a vote of the people except in certain specified conditions.   To the extent that it requires a vote of the people for amendment, the initiative merely makes explicit a restriction that would otherwise apply by law.  Elections Code sections 3719 and 4013, which apply to county and city ordinances respectively, provide in identical language:  “No ordinance proposed by initiative petition and ․ adopted by the voters, shall be repealed or amended except by a vote of the people․” 7  By permitting the board of supervisors to amend the agricultural sections of the general plan under certain conditions, Measure J actually introduces an element of flexibility that would not otherwise be allowed by law.   And by restricting amendment only for a 30–year period, the measure again moderates the provisions of the Elections Code which would restrict amendment indefinitely.

Elections Code sections 3719 and 4013 represent legislative recognition that initiative measures, “to be effective, must limit the power of a hostile city council to evade or repeal the initiative ordinance.”   (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.)   The power reserved to the people through the initiative and referendum “is, in the sense that it gives [the people] the final legislative word, a limitation upon the power of the Legislature.”  (Carlson v. Cory, supra, 139 Cal.App.3d 724, 728, 189 Cal.Rptr. 185.)   But “[s]ince initiative and referendum matters frequently follow in response to unpopular action or inaction by the local government” (Save Stanislaus Area Farm Economy v. Board of Supervisors, supra, 13 Cal.App.4th at p. 148, 16 Cal.Rptr.2d 408), the power could be easily undermined by local legislative bodies in the absence of a requirement for voter approval of amendments.

Section 65358, the statute on which appellants predicate the board of supervisors “duty to amend,” provides in pertinent part:  “(a) If it deems it to be in the public interest, the legislative body may amend all or part of an adopted general plan.   An amendment to the general plan shall be initiated in the manner specified by the legislative body․  [A] legislative body that permits persons to request an amendment of the general plan may require that an amount equal to the estimated cost of preparing the amendment be deposited with the planning agency․  (b) Except as otherwise provided in subdivision (c) or (d), no mandatory element of a general plan shall be amended more frequently than four times during any calendar year.   Subject to that limitation, an amendment may be made at any time, as determined by the legislative body.   Each amendment may include more than one change to the general plan.”   Subdivisions (c) and (d) set forth exceptions to the provisions of the preceding subdivisions.

The statute regulates the police powers conferred on the local legislative body by California Constitution, article XI, section 7.   It does not confer on the board of supervisors power to amend the general plan but rather provides procedures for the exercise of this power.  “Land use regulation in California has historically been a function of local government under the grant of police power contained in California Constitution, article XI, section 7.”   (Bownds v. City of Glendale, supra, 113 Cal.App.3d 875, 879, 170 Cal.Rptr. 342, fn. deleted.)   With respect to zoning, the court in Scrutton v. County of Sacramento (1969) 275 Cal.App.2d 412, 417, 79 Cal.Rptr. 872, observes, “County zoning regulations are a manifestation of the local police power conferred by article XI, section 11, of the state Constitution, not an exercise of authority delegated by statute.  [Citations.]   In their intrinsic character and by express declaration the state laws on county and city zoning are designed as standardizing limitations over local zoning practices, not as specific grants of authority to legislate.”   Although local planning touches on some areas of state interest, it is clearly also an attribute of the police power;  cities and counties could prepare and amend land use plans in the absence of statutory authorization.

In the case at bar, Section 65358 can be easily reconciled with Elections Code section 3719.   Section 65358 can be viewed as providing procedures for a board of supervisors to amend its general plan, except as limited by Elections Code section 3719.   This interpretation gives equal status to the two statutes, appropriately reflecting their function in carrying out separate constitutional powers.   It is demanded by the maxim of statutory interpretation that “apparently conflicting code sections should be reconciled, if possible, so that both may be given effect.”  (Holiway v. Woods (1983) 143 Cal.App.3d 1006, 1011, 192 Cal.Rptr. 445.)   Moreover, by recognizing the effect of Elections Code section 3719, it is consistent with principles governing exercise of the initiative power.  “Statutes regulating that power are liberally construed in favor of its broadest exercise, or put another way, restrictions on the right are not read into the statutes.”  (Coalition for Fair Rent v. Abdelnour (1980) 107 Cal.App.3d 97, 104, 165 Cal.Rptr. 685.)

 Appellants' arguments are based on the assumption that the policy of Section 65358 should prevail over Elections Code section 3719.   They do not articulate the basis for this assumption and we see none.   The arguments also assume that planning is a matter of state concern that is delegated to the local governments in the Planning and Zoning Law;  in such a situation, the state would at least have power to preclude restrictions on the amendment of a general plan.  (See Lesher Communications, Inc. v. City of Walnut Creek, supra, 52 Cal.3d 531, 540, fn. 8, 277 Cal.Rptr. 1, 802 P.2d 317.)   But we have seen that the reality is more complex.   Planning involves a core area of local concern that is inextricably connected with many matters of state concern.   In view of the essential element of local concern, any attempt to limit the local power of initiative would present constitutional questions.   The right of initiative over matters of local concern is guaranteed by the California Constitution and cannot be limited by state legislation.  (Associated Home Builders, etc., Inc. v. City of Livermore, supra, 18 Cal.3d 582, 595, 135 Cal.Rptr. 41, 557 P.2d 473;  Cal. Const., art. II, § 11.)

A closely analogous issue was raised in Lee v. City of Monterey Park, supra, 173 Cal.App.3d 798, 219 Cal.Rptr. 309.   An initiative required amendments of the city's zoning ordinance and general plan to be approved by the voters.   The plaintiffs argued that the initiative conflicted with the referendum provisions of the constitution.   The Lee court noted precedents upholding initiatives freezing zoning restrictions (Builders Assn. of Santa Clara–Santa Cruz Counties v. Superior Court, supra, 13 Cal.3d 225, 231, 118 Cal.Rptr. 158, 529 P.2d 582) or barring the city council from altering zoning established by the initiative (Fletcher v. Porter, supra, 203 Cal.App.2d 313, 323, 21 Cal.Rptr. 452.)   It reasoned that, if the city could lawfully preclude amendment, it could require amendments to be subject to a vote of the electorate:  “[W]e see no difference between an initiative ordinance which precludes any amendment and one which permits amendments but requires voter approval to become effective.”  (Lee v. City of Monterey Park, supra, 173 Cal.App.3d at p. 812, 219 Cal.Rptr. 309.)

Unlike L.I.F.E. Committee v. City of Lodi, supra, 213 Cal.App.3d 1139, 262 Cal.Rptr. 166, Measure J does not involve an attempt to exercise the initiative power in an area preempted by state legislation.   The L.I.F.E. decision concerned an initiative measure that required certain amendments of the general plan by a citywide election prior to the annexation of land in a surrounding greenbelt.   Annexation procedures are a matter of state concern and are exclusively regulated by statute.   Accordingly, the court held that the measure dealt with a matter beyond the scope of the initiative power.

We see no factual basis for finding that Measure J will frustrate land use planning in Napa County.  (Cf. Simpson v. Hite (1950) 36 Cal.2d 125, 134, 222 P.2d 225.)   At the time of trial, the measure seems to have passed the test of experience by allowing sufficient flexibility to make needed modifications in the plan.   The trial court found:  “Since the adoption of Measure J, the Board [of Supervisors] has continued to review and update the General Plan․”   Specifically, “the Board has amended the Land Use Element of the General Plan by resolutions redesignating certain Agricultural Land consistent with its requirements.”   In addition, “the Board has established procedures whereby any proposed General Plan Amendment redesignating Agricultural Land pursuant to the Initiative can be readily placed before the voters․   The Board has invoked these procedures to place on the ballot for vote a particular land owner's request for redesignation of Agricultural land.”  “As to the housing element of the General Plan, the Board ․ adopted extensive updates of the county's housing element meeting its obligation under the Government Code (these amendments require no voter approval under Measure J).”

Appellants' predictions of the dire practical consequences of Measure J have a highly hypothetical character.   If such problems do occur, they can be dealt with when they arise.   As stated in Yost v. Thomas, supra, 36 Cal.3d 561, 574, 205 Cal.Rptr. 801, 685 P.2d 1152, “if down the road the people exercise their referendum power in such a way as to frustrate any feasible implementation of the LUP [land use plan], some way out of the impasse will have to be found.   At this point, however, the system is not being put to so severe a test.”

We conclude that Measure J represents a valid exercise of the initiative power.

The judgment is affirmed.   Costs to County.


1.   Garat v. City of Riverside, supra, 2 Cal.App.4th 259, 271, 3 Cal.Rptr.2d 504, and Building Industry Assoc. v. Superior Court, supra, 211 Cal.App.3d 277, 297, 259 Cal.Rptr. 325, did not decide whether the initiative measure at issue constituted an amendment to the general plan or merely a zoning amendment but, by declining to reach this issue, the decisions appear to reflect an assumption that the general plan may be amended by initiative.  (See also Id. at p. 296, fn. 12, 259 Cal.Rptr. 325.)  Lee v. City of Monterey Park, supra, 173 Cal.App.3d 798, 219 Cal.Rptr. 309, rejected a challenge to the substantive legality of the initiative measure amending the general plan without reaching the issue of the initiative power.

2.   All further statutory references are to the Government Code unless otherwise indicated.

3.   Alternatively, appellants point to certain specific statutory references to the “planning agency.”  (E.g. § 65103, subd. (a).)  We see nothing in these statutes relevant to the scope of the initiative power.   The planning agency itself has no power to adopt or amend a general plan but merely exists to assist the legislative body.  (§§ 65103 and 65354.)   The fact that the legislative body enjoys this assistance from the planning agency has no bearing of the power of the electorate amend the general plan.

4.   We see no merit in the other statutory arguments advanced by appellants.First, they point to certain procedural provisions in Section 65356 that can apply only to action by the board of supervisors or city council, e.g. “the affirmative vote of not less than a majority of the total membership,” and argue that the term “legislative body” should have a similar reference.   The argument, however, is merely a variation of a theory authoritatively rejected in Associated Home Builders, etc., Inc. v. City of Livermore, supra, 18 Cal.3d 582, 596, 135 Cal.Rptr. 41, 557 P.2d 473, which holds that procedural requirements governing ordinances enacted by city council action do not limit the power of municipal electors to enact legislation by initiative.Secondly, they argue that, by allowing the legislative body to “adopt or amend a general plan by resolution,” Section 65356 displays an intention to preclude initiatives since Elections Code section 3700 speaks of the enactment of ordinances, not resolutions, by initiative.   But it is well established that the constitutional right of initiative and referendum applies generally to local legislation, whether enacted by resolution or ordinance.  (Save Stanislaus Area Farm Economy v. Board of Supervisors, supra, 13 Cal.App.4th 141, 153, 16 Cal.Rptr.2d 408;  Midway Orchards v. County of Butte, supra, 220 Cal.App.3d 765, 778, 269 Cal.Rptr. 796.)Thirdly, appellants argue that Sections 65356 and 65358 should not be interpreted to “sidestep” the environmental review of general plans required by the California Environmental Quality Act (CEQA).  (Cal.Code Regs., tit. 14, § 15206, subd. (b)(1).   But CEQA applies only to “discretionary projects proposed to be carried out or approved by public agencies” and reflects policies relevant only to such agency action;  it has never been construed to apply to initiatives and special elections.   (Lee v. City of Lompoc, supra, 14 Cal.App.4th 1515, 1520, 18 Cal.Rptr.2d 389;  Stein v. City of Santa Monica (1980) 110 Cal.App.3d 458, 460, 168 Cal.Rptr. 39.)   We see no logic in bending the interpretation of Sections 65356 and 65358 to extend CEQA beyond the scope established by the Legislature.

5.   Although the legislative history adds little, the legislative committee reports are consistent with our interpretation.  (See Pacific Bell v. California State & Consumer Services Agency (1990) 225 Cal.App.3d 107, 275 Cal.Rptr. 62.)  Elections Code section 3705.5 was introduced in 1987 as Assembly Bill No. 2202.   The committee reports contain repeated references to the bill's intent to provide voters with information regarding an initiative's “effect on the city's or county's general plan․”   An initiative will not have an effect on the general plan unless it changes the plan by amendment.

6.   As originally introduced in 1988, Assembly Bill No. 4678 would have required a local government to prepare an environmental impact report on proposed initiative measures.   When enacted, it merely made a minor amendment to Elections Code section 3705.5.   As originally proposed in 1989, Assembly Bill No. 628 would have given the Office of Local Government Affairs the power to review all proposed local initiatives.   The amended bill merely imposed on the state agency the duty to compiling information on local initiative measures.We do not wish to attach too much significance to this ambiguous legislative history;  it has been said that “[t]he light shed by such unadopted proposals is too dim to pierce statutory obscurities.”   (Sacramento Newspaper Guild v. Sacramento County Bd. of Suprs. (1968) 263 Cal.App.2d 41, 58, 69 Cal.Rptr. 480.)   We note only that it is consistent with a legislative intent to preserve local control over planning that may be inferred from an examination of the statutes themselves.

7.   The statutes unquestionably apply to local legislation, such as resolutions adopting a general plan, that are “not denominated ‘ordinances' in traditional local government law classification.”  (Save Stanislaus Area Farm Economy v. Board of Supervisors, supra, 13 Cal.App.4th at p. 153, 16 Cal.Rptr.2d 408.)

NEWSOM, Associate Justice.

STRANKMAN, P.J., and STEIN, J., concur.