COMMITTEE OF SEVEN THOUSAND v. CITY OF IRVINE

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Court of Appeal, Fourth District, Division 3, California.

COMMITTEE OF SEVEN THOUSAND (C.O.S.T.), William L. Speros, Antoinette M. Olivera, and James W. Johnson, Petitioners, v. SUPERIOR COURT of Orange County, Respondent; CITY OF IRVINE;  the City Council of the City of Irvine;  Nancy Lacey, City Clerk of the City of Irvine;  Richard Munsell;  Lyndon Calderine;  the Building Industry Association of Southern California, Inc., Orange County Region;  the Irvine Chamber of Commerce;  the Industrial League of Orange County;  and the Orange County Chamber of Commerce, Real Parties in Interest.

G003323.

Decided: December 31, 1985

Fredric D. Woocher and Carlyle W. Hall, Jr., Los Angeles, for petitioners. Rutan & Tucker, Roger A. Grable and Heather A. Mahood, Costa Mesa, for real parties in interest City of Irvine, City Council of the City of Irvine, and Nancy Lacey, City Clerk of the City of Irvine. Nossaman, Guthner, Knox & Elliott, Alvin S. Kaufer, Los Angeles, Robert D. Thornton, Costa Mesa, Peter C. Hoffman, Los Angeles, and James E. Erickson, Orange, for remaining real parties in interest. Donald V. Collin as amicus curiae on behalf of real parties in interest. Adrian Kuyper, County Counsel (Orange), Eugene Axelrod and Benjamin De Mayo, Deputy County Counsel, Santa Ana, as amicus curiae on behalf of real parties in interest. Parker & Covert, Clayton H. Parker, Santa Ana, and Wendy H. Wiles, Newport Beach, as amicus curiae on behalf of real parties in interest.

In this original proceeding occasioned by an order of the superior court barring an election on a municipal initiative, we must resolve the following question:  Does the electorate of a municipality have the power to pass an initiative measure to require voter approval of any city tax or fee to finance freeways or transportation corridors despite the Legislature's specific grant of authority to the city council to make that determination?

I

This case concerns the most recent effort of local governments in Orange County to overcome a one-billion-dollar conundrum:  How to build new freeways with much reduced federal and state financial assistance?   At issue is a development fee funding scheme designed to underwrite three massive proposed freeways in Orange County, known as the Eastern, Foothill, and San Joaquin Hills corridors.   It is conceded state and federal highway funds are no longer available in adequate amounts for these projects, nor are they likely to be in the future.   A previous attempt to raise the required monies by means of a county gas tax measure suffered a lopsided defeat at the polls.

Special legislation to permit local government in Orange County to adopt development fee financing was provided in Government Code section 66484.3, a specific statute applying only to that county.   The lengthy section is set forth verbatim in the appendix.   It permits the county board of supervisors or any city council of a city within the county to impose fees on new development for the purpose of funding freeway or bridge construction.

The City of Irvine is a charter city, and under its charter residents may enact any ordinance by initiative the city council is capable of passing.   The Committee of Seven Thousand, appropriately acronymed “C.O.S.T.,” collected more than ten-thousand signatures of citizens of the City of Irvine in order to qualify an initiative entitled “The Citizens' Right-To-Vote Ordinance.”   The proposed legislation is set forth verbatim in the appendix.   Its key provisions are the following:

“Section 2.   Findings.  The People of the City of Irvine find:

“(a) Under the County of Orange's proposed Major Thoroughfare and Bridge Fee Program, the construction of new ‘transportation corridors' or freeways (San Joaquin Hills Transportation Corridor, Foothill Transportation Corridor, and Eastern Transportation Corridor) will require taxpayers to pay new taxes or fees of up to $150 million, or more, in Irvine, thereby imposing both direct and indirect economic burdens on residents and business entities in Irvine.

“(b) These new taxes or fees should not be imposed or collected, nor should the City Council participate in their imposition or collection, without direct approval by City of Irvine voters at a regular or special election.

“(c) The actual construction of massive new transportation corridors or freeways, if approved, will entail major environmental damage, including but not limited to:  air pollution, noise pollution, visual blight, traffic congestion on connecting arterials, and the destruction of scarce open space resources.”

The petition was certified by the city clerk;  but before the council adopted either of the options available to it under the city charter, enactment of the ordinance or submission to the voters, the superior court, acting on a petition brought by Richard Munsell, Lyndon Calderine, the Building Industry Association of Southern California, Inc., the Irvine Chamber of Commerce, the Industrial League of Orange County, and the Orange County Chamber of Commerce, blocked further action by writ of mandate.   The court ruled by minute order as follows:  “The court finds that, based on the entire record in this action, that the electorate does not have the power to enact the proposed ordinance inasmuch as it is a matter of statewide concern and not a municipal affair.   Brosnahan v. Eu (1982) 31 Cal.3d 1 [181 Cal.Rptr. 100, 641 P.2d 200];  American Federation of Labor v. Eu (1984) 36 Cal.3d 687 [206 Cal.Rptr. 89, 686 P.2d 609].   In reaching its decision based on the applicable case law as cited by the parties, the court has further considered the entire statutory scheme of which Government Code Section 66484.3 is a part.”

Although the order is appealable, any judicial restraint of the electoral process is immediately suspect.   For this reason, and at the request of all parties, we determined to expedite the matter by means of this writ proceeding.

II

C.O.S.T. makes the following arguments in opposition to the superior court's actions:  It claims the proposed ordinance addresses “quintessentially municipal issues and not statewide issues ․”  But even if it does address matters of statewide concern, Government Code section 66484.3 is subject to the construction that it provides for initiative action by the electorate.   At least it cannot be said that the section provides the opposite, i.e., to in effect “establish a pervasive system of state regulation that would convert the Irvine City Council into an administrative agent of the state and thus preclude an initiative.”   The city charter reserves more power to the citizens of Irvine to legislate by initiative than does the Constitution of California, which contains a prohibition on referenda seeking to overturn tax measures for “usual current expenses.”  (Cal. Const., art. II, § 9, subd. (a).)  And, in any event, the ordinance would not affect taxes, only fees, and the size of the projects to be financed would not fit within the “usual current” rubric.

The City of Irvine takes no position on the proposed initiative other than to request speedy resolution of the judicial proceedings concerning it.   The remaining real parties in interest reply as follows:  Initially, they note the County of Orange adopted the “Major Thoroughfare and Bridge Fee Program” in response to passage of Government Code section 66484.3 to assist in financing the three transportation corridors.   The county began collecting fees under the program over a year ago.   Since, eight cities have joined the program and are collecting fees or will start soon.   Other cities may join, but participation of the City of Irvine is essential to the success of the program.   It is geographically situated in the midst of the three corridors to be developed and is expected to be the source of about a quarter of the fees.   After extensive public hearings the city council voted four-to-one to join the program and began collecting fees in November 1985.

Legally, real parties fault the proposed ordinance in the following ways:  First, it would impair the authority of the city council to tax and would “significantly interfere with the undoubtedly essential governmental function of financing roads.”   And, it is argued, the charter does not reserve greater initiative powers than the state Constitution reserves to the voters of general law cities.

Second, the initiative may “delay or preclude the participation of the City of Irvine in the Major Thoroughfare Fee Program which will partially fund the Transportation Corridors.”   The corridors are “critical to both local and regional transportation plans and to management of traffic ․”

Third, the Legislature has expressly delegated to the city councils of Orange County the authority to impose fees, and they are, consequently, “administrative agent[s] of the Legislature.”   Because the ordinance would “control actions expressly delegated by the Legislature to the [council], it is invalid ․”

Fourth, the ordinance would significantly affect the interests of nonresidents of the city.   Because the “regional burdens imposed by the [ordinance] would be substantial,” it must be invalid.

Fifth, the ordinance purports to be retroactive to January 1, 1985.   But the city council adopted a Major Thoroughfare and Bridge Fee Program pursuant to Government Code section 66484.3 on October 22, 1985.   Thus, the initiative, if allowed to affect the council's October action, would be, in effect, a referendum, not an initiative;  and the proper procedures to proceed with a referendum have not been followed.   Finally, we are told, the short title of the initiative “is misleading and designed to confuse voters.”

We will not find it necessary to deal with most of these contentions.   Many of them would obviously more appropriately be aired in campaign literature, but it is not for us to pass on the merits of the funding scheme or the projects it is intended to create.

III

The first question which must be addressed in any proceeding brought to disenfranchise the electorate is whether preelection review should be available at all.   The general rule is this:  “[I]t is usually more appropriate to review constitutional and other challenges to ballot propositions or initiative measures after an election rather than to disrupt the electoral process by preventing the exercise of the people's franchise, in the absence of some clear showing of invalidity.  [Citations.]”  (Brosnahan v. Eu, supra, 31 Cal.3d 1, 4, 181 Cal.Rptr. 100, 641 P.2d 200;  deBottari v. City Council (1985) 171 Cal.App.3d 1204, 1209, 217 Cal.Rptr. 790.)

That statement must be qualified by the following, however:  “[T]he general rule inhibiting preelection review ‘applies only to the contention that an initiative is unconstitutional because of its substance.   If it is determined that the electorate does not have the power to adopt the proposal in the first instance ․ the measure must be excluded from the ballot.’  [Citation.]”  (American Federation of Labor v. Eu, supra, 36 Cal.3d 687, 695, 206 Cal.Rptr. 89, 686 P.2d 609.)   In American Federation of Labor the Supreme Court struck an initiative measure from the ballot which would have permitted the electorate to instruct the Legislature to call for a convention to enact a federal balanced budget amendment.   The court held there was no power to enact the proposed measure because the purpose of the initiative process is to legislate, not to cajole the Legislature.

The court acted similarly in Legislature v. Deukmejian (1983) 34 Cal.3d 658, 194 Cal.Rptr. 781, 669 P.2d 17.   It held an attempt to redistrict the Legislature by initiative could not be effective because redistricting may occur but once in a decade under our state Constitution:  “Here ․ the challenge goes to the power of the electorate to adopt the proposal in the first instance․  The question raised is, in a sense, jurisdictional.”   (Id., at p. 667, 194 Cal.Rptr. 781, 669 P.2d 17.)

IV

Does the electorate of Irvine have the power to enact C.O.S.T.'s proposed ordinance?   The trial court concluded it does not, and we must agree.   But the cases the court cited, American Federation of Labor v. Eu, supra, 36 Cal.3d 687, 206 Cal.Rptr. 89, 686 P.2d 609, and Brosnahan v. Eu, supra, 31 Cal.3d 1, 181 Cal.Rptr. 100, 641 P.2d 200, seem inapt.   In one the initiative was to be used for an improper, nonlegislative purpose, i.e., to instruct the Legislature to act on a proposal for a constitutional convention;  in the other the initiative was actually allowed to go forward.

There is no basis for an improper purpose finding in this case, however.   The electorate may not be disenfranchised on that ground as it was in American Federation of Labor and Legislature v. Deukmejian.   A brief review of some of the land use cases where the same doctrine was considered will demonstrate why:  In Simpson v. Hite (1950) 36 Cal.2d 125, 222 P.2d 225, Housing Authority v. Superior Court (1950) 35 Cal.2d 550, 219 P.2d 457, Fishman v. City of Palo Alto (1978) 86 Cal.App.3d 506, 150 Cal.Rptr. 326, and Lincoln Property Co. No. 41, Inc. v. Law (1975) 45 Cal.App.3d 230, 119 Cal.Rptr. 292, initiatives or referenda were held improper because they were not legislative in character.  Simpson dealt with an initiative to repeal the Los Angeles County Board of Supervisor's choice of a site for municipal and superior courts.   The Supreme Court found the subject to be administrative, not legislative.   Similarly, in Housing Authority the court found a city's application for a federal loan for low cost housing to be administrative and consequently not an appropriate subject of a referendum.

Fishman and Lincoln Property concerned proposed changes in so-called planned community districts.   These changes were also found to be administrative in nature:  “Legislative acts generally are those which declare a public purpose and make provisions for the ways and means of its accomplishment.   Administrative acts, on the other hand, are those which are necessary to carry out the legislative policies and purposes already declared by the legislative body.”  (Fishman v. City of Palo Alto, supra, 86 Cal.App.3d at p. 509, 150 Cal.Rptr. 326;  but see Farley v. Healey (1967) 67 Cal.2d 325, 62 Cal.Rptr. 26, 431 P.2d 650 [power of electorate of San Francisco to pass antiwar initiative upheld].)

In Johnston v. City of Claremont (1958) 49 Cal.2d 826, 323 P.2d 71, disapproved on another point in Associated Home Builders Etc., Inc., v. City of Livermore (1976) 18 Cal.3d 582, 596, footnote 14, 135 Cal.Rptr. 41, 557 P.2d 473, however, a zoning plan was held to be legislative in nature;  and in Wheelright v. County of Marin (1970) 2 Cal.3d 448, 85 Cal.Rptr. 809, 467 P.2d 537, the Supreme Court found an access road to a planned community was the proper subject of a referendum:  “Intervenors argue that this ordinance was passed merely for the purpose of giving effect to the previously declared legislative policy [approving the planned community] and was administrative, not legislative.   Roadways are of sufficient public interest and concern to weight the scales in favor of construing this ordinance as being legislative and to be well within the referendum powers reserved by the people.”  (Id., at p. 458, 85 Cal.Rptr. 809, 467 P.2d 537;  see also Hopping v. Council of City of Richmond (1915) 170 Cal. 605, 150 P. 977.)   Our facts more closely resemble these latter cases.   Thus, we have no difficulty with the purpose of this ordinance;  it would be a proper exercise of legislative power.

Notwithstanding, however, we agree with the trial court.   The city electorate does lack the power to utilize the initiative in this instance, but for this reason:  The subject of the initiative, funding for three massive freeways, is a matter of statewide concern in which the power to make the decision was specifically entrusted to the board of supervisors and city councils.   Under similar circumstances in Riedman v. Brison (1933) 217 Cal. 383, 18 P.2d 947 (dealing with municipal membership in a water district) and Mervynne v. Acker (1961) 189 Cal.App.2d 558, 11 Cal.Rptr. 340 (concerning traffic control in the City of San Diego by means of parking meters), the electorate was held to be barred.   The subject matter of the proposed initiative in each instance, although appropriately legislative, was found not to involve a municipal affair, but a matter of statewide concern in which the Legislature had reposed the exclusive power to act in the city council.   As Mervynne explains, “When, in a matter of statewide concern, the state Legislature has specifically delegated a particular authority to the governing board, our courts have uniformly held that the initiative processes do not ordinarily apply.”  (Id., at p. 562, 11 Cal.Rptr. 340.)

The projects involved here are obviously of statewide concern.   C.O.S.T.'s claims to the contrary are not at all persuasive.   Three large freeway corridors trisecting the state's second largest county, costing a billion or so dollars, and slated to become state or federal highways will obviously have a far greater effect on transportation in this state than the City of San Diego's parking meters in the Mervynne case.

Moreover, passage of Government Code section 66484.3 itself is a persuasive indication of the Legislature's interest in the matter:  “The Legislature finds and declares that unique circumstances which exist in the County of Orange dictate the necessity of providing an alternative procedure for that county and the cities within that county, as set forth in Section 1 of this act, and that a general statute cannot be made applicable within the meaning of Section 16 of Article IV of the California Constitution.”  (Stats.1984, ch. 708, § 2, p. 337.)   It could be argued that Government Code section 66484.3 covers such a variety of projects that not all would necessarily be of statewide concern.   Perhaps so, but the target of this initiative, financing of three major freeways would not be among the exceptions.

The more difficult question is this:  Has the Legislature placed the ultimate legislative power to administer Government Code section 66484.3 financing in the highest legislative body of, in this case, the City of Irvine, to the derogation of the city charter's initiative and referendum provisions?   We hold that it has.

Subdivision (a) of section 66484.3 authorizes imposition of development fee funding in the County of Orange and the cities within the county;  and it specifically reposes the authority to actually assess the fees in the respective governing bodies of the cities and county:  “The board of supervisors of the County of Orange and the city council of any city in that county may, by ordinance, require the payment of a fee as a condition of approval of a final map or as a condition of issuing a building permit for purposes of defraying [the costs of bridges and highways].”   Section (b) provides in part, “The local ordinance may require payment of fees pursuant to this section if:  [¶ ] (2) The ordinance provides that there will be a public hearing held by the governing body for each area benefited․”  Section 66484.3, subdivision (b)(3) describes what must be accomplished at the public hearing, particularly with respect to the allocation of costs and apportionment of fees, and requires that the information “be incorporated in a resolution of the governing body.”

Subdivision (b)(6) adds an elaborate protest scheme which permits the owners of more than one-half the affected area to veto the proceedings, “and the legislative body shall not, for one year from the filing of that written protest, commence or carry on any proceedings for the same improvement or acquisition under the provisions of this section, unless the protests are overruled by an affirmative vote of four-fifths of the legislative body.”   The same subdivision also provides, “If any majority protest is directed against only a portion of the improvement then all further proceedings under the provisions of this section to construct that portion of the improvement so protested against shall be barred for a period of one year, but the legislative body shall not be barred from commencing new proceedings not including any part of the improvement or acquisition so protested against.   Nothing in this section shall prohibit the legislative body, within the one-year period, from commencing and carrying on new proceedings for the construction of a portion of the improvement so protested against if it finds, by the affirmative vote of four-fifths of its members, that the owners of more than one-half of the area of the property to be benefited are in favor of going forward with that portion of the improvement or acquisition.”

Thus, it is reasonably clear the Legislature has created a scheme which is to be implemented and administered, sometimes to be withdrawn and reimplemented within relatively short time periods, by the governing body of the county or city.   C.O.S.T.'s attempt to overcome this difficulty with its position can be summarized in its quotation of the following from Reagan v. City of Sausalito (1962) 210 Cal.App.2d 618, 624, 26 Cal.Rptr. 775:  “The mere granting by the Legislature to the legislative body of a city of the discretionary power to determine what lands should be acquired for park purposes does not, and could not, prevent the application of the right of referendum, which is provided by the Constitution, as to legislative acts of a city's legislative body.”   True, but C.O.S.T. should have noted the next line in the text:  “It is only in matters of statewide concern that the Legislature can be held to delegate such a particular authority to the governing board as to prevent the application of the referendum process.  [ ( ]See Mervynne v. Acker [supra] 189 Cal.App.2d 558, 562 [11 Cal.Rptr. 340].)”  (Id., at pp. 624–625, 26 Cal.Rptr. 775.)   This initiative touches projects of statewide concern;  consequently, it can only be concluded that the Legislature's grant of authority to the Irvine City Council is not subject to initiative or referendum.  (Ferrini v. City of San Luis Obispo (1983) 150 Cal.App.3d 239, 248, 197 Cal.Rptr. 694.)

Reagan's discussion of Alexander v. Mitchell (1953) 119 Cal.App.2d 816, 260 P.2d 261 further illustrates the point.   The referendum measure upheld in Reagan sought to repeal an ordinance to acquire certain property for an “ ‘acquatic [sic ] park, playground, open space and public ground purposes.’ ”  (Reagan v. City of Sausalito, supra, 210 Cal.App.2d at p. 621, 26 Cal.Rptr. 775.)   The court rejected the project's opponents' reliance on Alexander:  “Merely because the power of eminent domain might be involved, [sic ] does not make the purchase of a park site by a city a matter of statewide concern, and hence no longer a municipal matter.   In Alexander the attempt made was to completely abrogate the power of eminent domain, an entirely different matter from that with which we are here concerned.”   (Id., at p. 627, 26 Cal.Rptr. 775.)   This initiative, as we have noted, does involve issues of statewide concern.

To repeat, the Legislature has rather unambiguously provided, “The board of supervisors of the County of Orange and the city council of any city in that county may, by ordinance, require the payment of a [development] fee ․ for purposes of defraying the ․ cost of constructing bridges over waterways, railways, freeways, and canyons, or constructing major thoroughfares.”   (Gov.Code, § 66484.3, subd. (a), emphasis added.)   Since the portion of the statute addressed by the proposed initiative clearly involves projects of statewide concern, C.O.S.T. must pursue its objectives, if at all, in other ways.   The initiative and referendum is not a legally appropriate means to check or review the actions of the city council in this instance.

The alternative writ is discharged.   The peremptory writ is denied.

APPENDIX

§ 66484.3.  Orange county;  fees as condition for defrayment of costs of bridges and major thoroughfares;  ordinance;  modification of apportionment;  protests;  overruling of protests;  deposits;  contest of validity of fees;  legislative findings and declaration

(a) The board of supervisors of the County of Orange and the city council of any city in that county may, by ordinance, require the payment of a fee as a condition of approval of a final map or as a condition of issuing a building permit for purposes of defraying the actual or estimated cost of constructing bridges over waterways, railways, freeways, and canyons, or constructing major thoroughfares.

(b) The local ordinance may require payment of fees pursuant to this section if:

(1) The ordinance refers to the circulation element of the general plan and, in the case of bridges, to the transportation provisions or flood control provisions of the general plan which identify railways, freeways, streams, or canyons for which bridge crossings are required on general plan or local roads and in the case of major thoroughfares, to the provisions of the circulation element which identify those major thoroughfares whose primary purpose is to carry through traffic and provide a network connecting to or which is part of the state highway system, and the circulation element, transportation provisions, or flood control provisions have been adopted by the local agency 30 days prior to the filing of a map or application for a building permit.   Bridges which are part of a major thoroughfare need not be separately identified in the transportation or flood control provisions of the general plan.

(2) The ordinance provides that there will be a public hearing held by the governing body for each area benefited.   Notice shall be given pursuant to Section 65905.   In addition to the requirements of Section 65905, the notice shall contain preliminary information related to the boundaries of the area of benefit, estimated cost, and the method of fee apportionment.   The area of benefit may include land or improvements in addition to the land or improvements which are the subject of any map or building permit application considered at the proceedings.

(3) The ordinance provides that at the public hearing, the boundaries of the area of benefit, the costs, whether actual or estimated, and a fair method of allocation of costs to the area of benefit and fee apportionment are established.   The method of fee apportionment, in the case of major thoroughfares, shall not provide for higher fees on land which abuts the proposed improvement except where the abutting property is provided direct usable access to the major thoroughfare.   A description of the boundaries of the area of benefit, the costs, whether actual or estimated, and the method of fee apportionment established at the hearing shall be incorporated in a resolution of the governing body, a certified copy of which shall be recorded by the governing body conducting the hearing with the recorder of the county in which the area of benefit is located.   The costs and method of fee apportionment may subsequently be modified to reflect revised cost estimates or actual costs and changes in apportionment due to changes in land use or other factors.   Modifications shall be adopted in the same manner as the original resolution.   The resolution may provide for automatic periodic adjustment of fees based upon the Consumer Price Index or some other indicator not under control of the governing body, without further action of the governing body, including, but not limited to, public notice or hearing.   The apportioned fees shall be applicable to all property within the area of benefit and shall be payable as a condition of approval of a final map or as a condition of issuing a building permit for any of the property or portions of the property.   Where the area of benefit includes lands not subject to the payment of fees pursuant to this section, the governing body shall make provision for payment of the share of improvement costs apportioned to those lands from other sources, but those sources need not be identified at the time of the adoption of the resolution.

(4) The ordinance provides that payment of fees shall not be required unless the major thoroughfares are in addition to, or a reconstruction or widening of, any existing major thoroughfares serving the area at the time of the adoption of the boundaries of the area of benefit.

(5) The ordinance provides that payment of fees shall not be required unless the planned bridge facility is an original bridge serving the area or an addition to any existing bridge facility serving the area at the time of the adoption of the boundaries of the area of benefit.   Fees imposed pursuant to this section shall not be expended to reimburse the cost of existing bridge facility construction, unless these costs are incurred in connection with the construction of an addition to an existing bridge for which fees may be required.

(6) The ordinance provides that if, within the time when protests may be filed under its provisions, there is a written protest, filed with the clerk of the legislative body, by the owners of more than one-half of the area of the property to be benefited by the improvement, and sufficient protests are not withdrawn so as to reduce the area represented to less than one-half of that to be benefited, then the proposed proceedings shall be abandoned, and the legislative body shall not, for one year from the filing of that written protest, commence or carry on any proceedings for the same improvement or acquisition under the provisions of this section, unless the protests are overruled by an affirmative vote of four-fifths of the legislative body.

Nothing in this section shall preclude the processing and recordation of maps in accordance with other provisions of this division if proceedings are abandoned.

Any protests may be withdrawn in writing by the owner who filed the protest, at any time prior to the conclusion of a public hearing held pursuant to the ordinance.

If any majority protest is directed against only a portion of the improvement then all further proceedings under the provisions of this section to construct that portion of the improvement so protested against shall be barred for a period of one year, but the legislative body shall not be barred from commencing new proceedings not including any part of the improvement or acquisition so protested against.   Nothing in this section shall prohibit the legislative body, within the one-year period, from commencing and carrying on new proceedings for the construction of a portion of the improvement so protested against if it finds, by the affirmative vote of four-fifths of its members, that the owners of more than one-half of the area of the property to be benefited are in favor of going forward with that portion of the improvement or acquisition.

(c) Fees paid pursuant to an ordinance adopted pursuant to this section shall be deposited in a planned bridge facility or major thoroughfare fund.   A fund shall be established for each planned bridge facility project or each planned major thoroughfare project.   If the benefit area is one in which more than one bridge or major thoroughfare is required to be constructed, a fund may be so established covering all of the bridge or major thoroughfare projects in the benefit area.   Moneys in the fund shall be expended solely for the construction or reimbursement for construction of the improvement serving the area to be benefited and from which the fees comprising the fund were collected, or to reimburse the county or a city for the cost of constructing the improvement.

(d) An ordinance adopted pursuant to this section may provide for the acceptance of considerations in lieu of the payment of fees.

(e) The county or a city imposing fees pursuant to this section may advance money from its general fund or road fund to pay the cost of constructing the improvements and may reimburse the general fund or road fund from planned bridge facility or major thoroughfares funds established to finance the construction of the improvements.

(f) The county or a city imposing fees pursuant to this section may incur an interest-bearing indebtedness for the construction of bridge facilities or major thoroughfares.   The sole security for repayment of the indebtedness shall be moneys in planned bridge facility or major thoroughfares funds.

(g) The term “construction,” as used in this section, includes design, acquisition of right-of-way, administration of construction contracts, and actual construction.

(h) Nothing in this section shall be construed to preclude the County of Orange or any city within that county from providing funds for the construction of bridge facilities or major thoroughfares to defray costs not allocated to the area of benefit.

(i) Any city within the County of Orange may require the payment of fees in accordance with this section as to any property in an area of benefit within the city's boundaries, for facilities shown on its general plan or the county's general plan, whether the facilities are situated within or outside the boundaries of the city, and the county may expend fees for facilities or portions thereof located within cities in the county.

(j) The validity of any fee required pursuant to this section shall not be contested in any action or proceeding unless commenced within 60 days after recordation of the resolution described in paragraph (3) of subdivision (b).  The provisions of Chapter 9 (commencing with Section 860) of Title 10 of Part 2 of the Code of Civil Procedure shall be applicable to any such action or proceeding.   This subdivision shall also apply to modifications of fee programs.

(Added by Stats.1984, c. 708, p. 334, § 1.)

PROPOSED LEGISLATION

“Section 1.   This ordinance shall be known as, and may be cited as, ‘The Citizens' Right-To-Vote Ordinance.’

“Section 2.   Findings.  The People of the City of Irvine find:

“(a) Under the County of Orange's proposed Major Thoroughfare and Bridge Fee Program, the construction of new ‘transportation corridors' or freeways (San Joaquin Hills Transportation Corridor, Foothill Transportation Corridor, and Eastern Transportation Corridor) will require taxpayers to pay new taxes or fees of up to $150 million, or more, in Irvine, thereby imposing both direct and indirect economic burdens on residents and business entities in Irvine.

“(b) These new taxes or fees should not be imposed or collected, nor should the City Council participate in their imposition or collection, without direct approval by City of Irvine voters at a regular or special election.

“(c) The actual construction of massive new transportation corridors or freeways, if approved, will entail major environmental damage, including but not limited to:  air pollution, noise pollution, visual blight, traffic congestion on connecting arterials, and the destruction of scarce open space resources.

“(d) The Citizens' Right-To-Vote Ordinance, upon enactment, will assure citizen participation in the planning process on matters of overriding environmental and economic concern.

“Section 3.   The Citizens' Right-To-Vote.

“Sections VI.F–450–452 are hereby added to the Code of Ordinances of the City of Irvine and read as follows:

“VI.F–450.   Except as provided in Section VI.F–451 or VI.F–452, on and after January 1, 1985, the City Council shall not impose or collect, nor shall the City Council participate in or join any agency or other authority for the purpose of imposing or collecting any new fee or tax which would finance or aid in the financing of:  the San Joaquin Hills Transportation Corridor (Freeway);  the Foothill Transportation Corridor (Freeway);  the Eastern Transportation Corridor (Freeway);  or any new corridor, freeway, highway, or other road of any designation.

“VI.F–451.   Such new fee or tax may only be imposed by passage of a ballot measure approved by a majority of the qualified electors of the City voting on the measure at a regular or special election.

“VI.F–452.   The provisions of Sections VI.F–450 and VI.F–451 shall not apply to proceedings for the construction of City owned streets the cost of which, or any portion of which, is to be borne by special assessments upon real property;  nor to any fees established pursuant to the provisions of Section V.E.–736 of the Code of Ordinances of the City of Irvine (Irvine Business Complex).

“Section 4.   Severability.  If any section, subsection, part, subpart, paragraph, subparagraph, clause or phrase of this ordinance, or any amendment or revision of this ordinance is for any reason held to be invalid or unconstitutional;  the remaining sections, subsections, parts, subparts, paragraphs, subparagraphs, clauses or phrases shall not be affected, but shall remain in full force and effect.”

CROSBY, Associate Justice.

TROTTER, P.J., and WALLIN, J., concur.