PATTERSON v. Nancy Trent et al., Interveners and Appellants. (1987)

This lawsuit presents a facial challenge to the constitutionality of a county ordinance enacted by initiative.   The ordinance purports to limit governmental authority to regulate the use of privately owned real property.

For reasons that follow, we determine that certain provisions of the ordinance conflict with general law in violation of article XI, section 7, of the California Constitution ¹ and are therefore invalid.  (All subsequent references to article XI, section 7 are to this constitutional provision.)   Other provisions of the ordinance do not conflict with general law and remain enforceable.

We also award interveners their attorneys fees on appeal.   Finally, we impose sanctions upon defendant County of Tehama (County) for its failure to file a respondent's brief in violation of rule 14(a) of the California Rules of Court.

BACKGROUND

In June 1982, seven citizens of Tehama County caused to be published a “Notice of Intention to Circulate County Initiative Petition.”  (Elec.Code, § 3702.)   The ordinance proposed by the initiative, entitled “Landowners Bill of Rights,” provided as follows:

“(1) No public entity shall impose any restrictions as to the use of privately owned real property, except as set forth herein.

“(2) No public entity shall impose any requirements or specifications as to private roads.

“(3) No public entity shall require the owners of adjacent privately owned real property to repair, build, maintain, broaden or donate land for public roads.

“(4) No public entity shall impose any requirements or specifications as to type or size of housing or other buildings to be constructed on privately owned real property.

“(5) No public entity shall restrict any commercial business as to size or location within the County of Tehama, nor shall any public entity place any requirements as to access on any commercial business.

“(6) No public entity shall impose requirements or specifications as to size, shape or fencing to be required as a condition for development or obtaining any permit.

“(7) No public entity shall impose any restriction upon the use of privately owned real property by declaring said property to be a historical site, an archaeological site, or open space unless the owner or owners of said property are justly compensated for the diminution in the value of said property caused by the restrictions so imposed.

“(8) No public entity may impose any restriction upon any use of privately owned real property which exists at the time of passage of this ordinance.

“(9) A public entity may require a public hearing as to land use related matters only when the location of a subdivision or a commercial manufacturing facility is to be considered.   When application is made to a public entity for establishment of a subdivision or placement of a commercial manufacturing facility, said entity shall give notice of said application by publication in a newspaper of general circulation within the proposed location, stating that such application has been made, and stating that if no objection to said application has been made and stating that if no objection to said application be received [sic ] from a resident of the immediate vicinity of said location, within 30 days, said application will be granted.   Should objection be received from a resident of the immediate vicinity of said proposed location, a public hearing shall be held within 60 days of filing complaint, as to the location of said subdivision or commercial manufacturing facility.

“(10) No public entity shall consider either soil type or parcel size as a factor in determining whether a subdivision of land shall be accepted.

“(11) No public entity shall impose any restriction upon the rights of the owner of privately owned real property to surface water, percolating water or underground water appurtenant thereto.   The metering of private water wells by any public entity is specifically prohibited.

“(12) No part of this ordinance may be amended except by majority vote of the qualified electors of Tehama County.

“(13) If any section, part, clause or phrase hereof is for any reason held to be unconstitutional, the remaining sections shall not be affected, but will remain in full force and effect.

“(14) As used herein, the word ‘shall’ is mandatory, and the word ‘may’ is permissive.

“(15) Should any provision of this ordinance be contrary to, or in any way inconsistent with, existing laws, ordinances, regulations or procedures, the provisions of this ordinance shall preempt such laws, ordinances, regulations or procedures.”

The proponents of the initiative also caused to be published a statement of reasons in support of the initiative.  (See Elec.Code, § 3702, subd. (a).)  It provided:

“The reasons for the proposed petition are as follows:

“ ‘The right to acquire and own property and to deal with it and use it as the owner chooses, so long as the use harms nobody, is a natural right.   It does not owe its origin to constitutions.   It existed before them.   It is a part of the citizen's natural liberty, a right to which the police power is subordinated.

“ ‘Because these rights and privileges have been violated by the Tehama County governing body through planning, decisions and other official acts, we the undersigned intend to restore the above rights and privileges to all citizens of Tehama County.

“ ‘Through the passage of the Landowners' Bill of Rights, it is our intention to limit the power of public entities to restrict the use of privately owned real property.   Landowners will again be free of unwarranted restrictions on private roads, construction of buildings, fences, commercial development, subdivision of parcels and other uses of private property.   Metering of private wells will be prohibited, and public entities will not be able to effectively destroy the value of property through zoning.[’]

“Our voices have been raised in the past, but have not been heeded.   We feel that the initiative process, which is available to us under California Law, is the remedy which remains to enable us to win back our freedom to enjoy private property rights.”

The ordinance was ultimately submitted to the voters on the November 1982 ballot.   The ballot argument in support of the initiative provided:

“THE INTENT OF THIS INITIATIVE IS TO:

“Re-affirm the citizens inalienable right to acquire, own and protect property.

“This is the basic driving force behind this initiative.

“Allow for accomplishment of individual goals.

“Encourage innovation and advancement in land use methods.

“Permit supply and demand to allocate the distribution of land resources.

“Economics is the most honest regulator of land use.

“Acknowledge where land can sustain the costs of agricultural production, then and only then, will this use perservere.

“Return to property owners their precious rights that have been stripped from them for the sake of easier enforcement of land regulations.

“Expose the fallacy of governmentally dictated land use control.   The current County plan has been declared a failure by the very governmental body that created it.   Truthfully, land use planning is the sum of all the individual plans of property owners and would be property owners.   To think that any public body is wise enough to gather all this thinking and draft it into a set of regulations is not rational.   The results can only be regulations that implement what the regulators believe to be best.

“Reduce the burden of the people upon their government and to a greater extent, reduce the burden of government upon ourselves.

“Reduce the chance for favoritism and opportunity for those in political power to take advantage of their positions.

“Recognize that productivity from a parcel of land is not related to its size.   Productivity is governed by investment and management.

“Secure stability in land use classification.

“THIS INITIATIVE'S INTENT IS TO DEAL WITH LAND USE DEVELOPMENT AND SHOULD NOT BE CONSTRUED AS CHANGING THE COUNTY'S BUILDING, HEALTH AND SAFETY ORDINANCES.”  (Emphasis in original.)

On November 2, 1982, the voters of Tehama County adopted the ordinance.   Thereafter in the capacity of individual citizens and taxpayers residing within the county, plaintiffs challenged the constitutionality of the ordinance by bringing suit against the county and its official representatives.   Plaintiffs sought declaratory and injunctive relief, as well as a writ of mandate compelling county officials to perform duties imposed by state law without regard to the provisions of the ordinance.   Apparently concurring with the opinion of its legal counsel that the ordinance is unconstitutional, the county elected not to contest the lawsuit and stipulated to the entry of judgment in favor of plaintiffs.

Responding to notice of the intended judgment served upon them by order of court, several county residents intervened in support of the ordinance before judgment became final.   The cause then proceeded to trial after which the court rendered judgment declaring the ordinance unlawful on the ground the term “public entity” in the ordinance applied to the state of California so that the ordinance purported to abrogate state laws.   The court issued a peremptory writ of mandate as prayed.

Interveners appealed from the judgment.   On appeal, the Attorney General, appearing as amicus curiae, submitted a responsive brief and argued orally in support of plaintiffs and in opposition to interveners.

As is more fully discussed below, County originally maintained a neutral stance in these proceedings and filed no brief in this court.   However, after our original opinion in this case was filed, upholding certain paragraphs of the ordinance, County filed a petition for rehearing that raised numerous novel contentions.   We granted rehearing and issued an order to show cause why sanctions should not be imposed on County for its failure to raise these arguments earlier in its brief.

DISCUSSION

IStanding and Ripeness

Of first concern are issues of standing and ripeness.   Interveners question plaintiffs' standing to contest the constitutionality of the ordinance and the ripeness of the controversy for adjudication.   We shall conclude the controversy is justifiable.

A. Plaintiffs have standing to challenge the ordinance.

 A writ of mandate ordinarily will issue only in favor of persons who are “beneficially interested.”  (Code Civ.Proc., § 1086;  Green v. Obledo (1981) 29 Cal.3d 126, 144, 172 Cal.Rptr. 206, 624 P.2d 256;  Carsten v. Psychology Examining Com. (1980) 27 Cal.3d 793, 796, 166 Cal.Rptr. 844, 614 P.2d 276.)   Generally, beneficial interest refers to “some special interest to be served or some particular right to be preserved or protected over and above the interest held in common with the public at large.”  (Carsten, supra, at p. 796, 166 Cal.Rptr. 844, 614 P.2d 276.)   Interveners point out that plaintiffs have shown no special interest in the controversy beyond that of other citizen-taxpayers residing in the county who are affected by the ordinance.

 An exception to the special interest requirement is recognized when the question litigated is “ ‘ “one of public right and the object of the [proceeding] is to procure the enforcement of a public duty, ․” ’ ” (Green v. Obledo, supra, 29 Cal.3d at p. 144, 172 Cal.Rptr. 206, 624 P.2d 256, quoting Bd. of Soc. Welfare v. County of L.A. (1945) 27 Cal.2d 98, 100–101, 162 P.2d 627.)   Under this exception, it is sufficient that a person seeking a writ is “ ‘ “interested as a citizen in having the laws executed and the duty in question enforced” ’ ”;  no special interest need be shown.  (Green, supra, 29 Cal.3d at p. 144, 172 Cal.Rptr. 206, 624 P.2d 256;  quoting Bd. of Soc. Welfare v. County of L.A., supra, 27 Cal.2d at pp. 100–101, 162 P.2d 627;  see also American Friends Service Committee v. Procunier (1973) 33 Cal.App.3d 252, 256, 109 Cal.Rptr. 22.)   Accordingly, plaintiffs, as county residents, have standing to secure the enforcement of public duties enjoined upon the county by state planning and land use statutes.  (Cf. Gov.Code, § 65860, subd. (b), applicable to “zoning” ordinances;  all subsequent references to sections of an unspecified code are to the Government Code.)

B. The controversy is ripe for adjudication.

 A controversy is “ripe” for judicial resolution when “ ‘it has reached, but has not passed, the point that the facts have sufficiently congealed to permit an intelligent and useful decision to be made.’ ”   (Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 171, 188 Cal.Rptr. 104, 655 P.2d 306, quoting California Water & Telephone Co. v. County of Los Angeles (1967) 253 Cal.App.2d 16, 22, 61 Cal.Rptr. 618.)   The legal issues posed must be framed with sufficient concreteness and immediacy so that the court can render a conclusive and definitive judgment rather than a purely advisory opinion based on hypothetical facts or speculative future events.  (See id., 33 Cal.3d at pp. 170–173, 188 Cal.Rptr. 104, 655 P.2d 306.)   Where doubt exists as to the fitness of the issues for review, account is taken of the public interest in a prompt answer to a particular legal question and the relative hardship on the parties if decision is deferred.  (Id., at pp. 170, 172–173, 188 Cal.Rptr. 104, 655 P.2d 306;  see also California Water & Telephone Co. v. County of Los Angeles, supra, 253 Cal.App.2d at p. 26, 61 Cal.Rptr. 618.)

 Here the ordinance does not require application to discern the boundaries of legislative intent (see Pacific Legal Foundation v. California Coastal Com., supra, 33 Cal.3d at pp. 173–174, 188 Cal.Rptr. 104, 655 P.2d 306;  Selby Realty Co. v. City of San Buenaventura (1973) 10 Cal.3d 110, 118, 109 Cal.Rptr. 799, 514 P.2d 111).   Various provisions of the ordinance ostensibly circumscribe the county's exercise of its statutorily conferred authority to impose all manner of land use restrictions.   The Legislature has declared that the ability of local decision makers to plan intelligently and effectively for the preservation and use of California's exhaustible land resources, within the framework of statewide goals and policies, is essential to the general well-being of the people of California.   (See §§ 65030, 65030.1, 65030.2, 65033.)   Since plaintiffs allege the county is under a present duty imposed by state law to disregard the prohibitions of the ordinance, the existence of the ordinance places the county in an immediate dilemma.   Failure to resolve the dilemma now will only create “lingering uncertainty” in respect to a law which is the subject of widespread public interest in Tehama County.  (Pacific Legal Foundation v. California Coastal Com., supra, 33 Cal.3d at p. 170, 188 Cal.Rptr. 104, 655 P.2d 306.)   We conclude that adjudication of the facial validity of the ordinance, without anchor in particular facts, is not premature.

Now, to the merits of the controversy.

II

General Rules Guiding the Court's Review of the Legality of the Initiative Ordinance

Plaintiffs and County contend the ordinance is void on its face because it conflicts with paramount laws in violation of the state Constitution.   At the outset, we discuss general rules of law that must guide our review of the ordinance, since, as our colleague Justice Blease has pointed out, “success in mounting the horse may vary with the side from which it is approached.   A misapproach may leave one looking at the wrong end of the horse.”  (Andalon v. Superior Court (1984) 162 Cal.App.3d 600, 610–611, fn. 6, 208 Cal.Rptr. 899.)

A. The initiative ordinance may not conflict with state law.

Article XI, section 7, of our Constitution (see fn. 1, ante ) expressly states that counties may make and enforce ordinances “not in conflict with general laws.” ²  A county ordinance in conflict with state law is therefore void.  (Chavez v. Sargent (1959) 52 Cal.2d 162, 176, 339 P.2d 801, overruled on other grounds in Petri Cleaners, Inc. v. Automotive Employees, etc. Local No. 88 (1960) 53 Cal.2d 455, 475, 2 Cal.Rptr. 470, 349 P.2d 76;  Bruce v. City of Alameda (1985) 166 Cal.App.3d 18, 212 Cal.Rptr. 304;  see People ex rel. Deukmejian v. County of Mendocino (1984) 36 Cal.3d 476, 484, 204 Cal.Rptr. 897, 683 P.2d 1150.)

“ ‘Conflicts exist if the ordinance duplicates [citations], contradicts [citation], or enters an area fully occupied by general law, either expressly or by legislative implication [citations].   If the subject matter or field of the legislation has been fully occupied by the state, there is no room for supplementary or complementary local legislation, even if the subject [was] otherwise one properly characterized as a “municipal affair.”  [Citation].’ ”  (Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, 290–291, 219 Cal.Rptr. 467, 707 P.2d 840;  quoting Lancaster v. Municipal Court (1972) 6 Cal.3d 805, 807–808, 100 Cal.Rptr. 609, 494 P.2d 681;  see People ex rel. Deukmejian v. County of Mendocino, supra, 36 Cal.3d at pp. 484–485, 204 Cal.Rptr. 897, 683 P.2d 1150.)

In the face of paramount law local voters exercising the power of initiative may no more legislate than may local legislatures.  (Building Industry Assn. v. City of Camarillo (1986) 41 Cal.3d 810, 821, 226 Cal.Rptr. 81, 718 P.2d 68;  Legislature v. Deukmejian (1983) 34 Cal.3d 658, 674, 194 Cal.Rptr. 781, 669 P.2d 17;  People v. Smith (1983) 34 Cal.3d 251, 259, 193 Cal.Rptr. 692, 667 P.2d 149;  Blotter v. Farrell (1954) 42 Cal.2d 804, 810, 270 P.2d 481;  Comments, The Initiative and Referendum's Use in Zoning (1976) 64 Cal.L.Rev. 74, 104.)

B. The wisdom of the ordinance is not properly at issue in this lawsuit.

Opponents of the initiative assert, among other things, that the ordinance is manifestly unwise.   However, in the words of our Supreme Court, “We stress initially the limited nature of our inquiry.   We do not consider or weigh the economic or social wisdom or general propriety of the initiative.   Rather, our sole function is to evaluate [the ordinance] legally in the light of established constitutional standards.”  (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 219, 149 Cal.Rptr. 239, 583 P.2d 1281.)

C. The ordinance is entitled to special status as the product of the initiative process.

Commenting on the appropriate method of judicial review of local initiative measures, our Supreme Court said recently, “The 1911 amendment to the California Constitution, which provides for the initiative and referendum, ‘[d]rafted in light of the theory that all power of government ultimately resides in the people, ․ speaks of the initiative and referendum, not as a right granted the people, but as a power reserved by them.   Declaring it “the duty of the courts to jealously guard this right of the people” (Martin v. Smith (1959) 176 Cal.App.2d 115, 117 [1 Cal.Rptr. 307] ), the courts have described the initiative and referendum as articulating “one of the most precious rights of our democratic process” (Mervynne v. Acker [1961] 189 Cal.App.2d 558, 563 [11 Cal.Rptr. 340] ).  “[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.”  (Mervynne v. Acker, supra, 189 Cal.App.2d 558, 563–564 [11 Cal.Rptr. 340];  Gayle v. Hamm [1972] 25 Cal.App.3d 250, 258 [101 Cal.Rptr. 628].)’  (Associated Home Builders etc., Inc. v. City of Livermore, supra, [ (1976) ] 18 Cal.3d [582] at p. 591 [135 Cal.Rptr. 41, 557 P.2d 473], fn. omitted.)”  (Building Industry Assn. v. City of Camarillo, supra, 41 Cal.3d at p. 821, 226 Cal.Rptr. 81, 718 P.2d 68;  emphasis added;  see also American Federation of Labor v. Eu (1984) 36 Cal.3d 687, 708, 206 Cal.Rptr. 89, 686 P.2d 609;  Brosnahan v. Brown (1982) 32 Cal.3d 236, 241, 186 Cal.Rptr. 30, 651 P.2d 274;  Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization, supra, 22 Cal.3d at p. 219, 149 Cal.Rptr. 239, 583 P.2d 1281.)

D. This court has no authority to re-write the ordinance to save it.

Despite its status as an initiative measure, the ordinance is generally subject to the same rules of judicial interpretation as apply to statutes.   (People v. Davenport (1985) 41 Cal.3d 247, 263, fn. 6, 221 Cal.Rptr. 794, 710 P.2d 861.)

Historically, our Supreme Court has not followed a consistent rule delineating the authority of courts to disregard the plain meaning of statutory language and, in effect, to rewrite a statute to save it from constitutional conflict.   Clearly the historical record is replete with examples of creative judicial revision of the language of enactments in the name of fulfulling the intent of the enactors or of avoiding constitutional conflict.  (See, e.g., Metromedia, Inc. v. City of San Diego (1982) 32 Cal.3d 180, 192–196, 185 Cal.Rptr. 260, 649 P.2d 902 (dis. opn. of Kaus, J.), and authorities cited therein;  Younger v. Superior Court (1978) 21 Cal.3d 102, 113, 145 Cal.Rptr. 674, 577 P.2d 1014;  People v. Daniels (1969) 71 Cal.2d 1119, 1130, 80 Cal.Rptr. 897, 459 P.2d 225;  Bruce v. Gregory (1967) 65 Cal.2d 666, 673–674, 56 Cal.Rptr. 265, 423 P.2d 193, and authorities cited therein.)

We think the current rule was established in Metromedia, Inc. v. City of San Diego, supra, 32 Cal.3d 180, 185 Cal.Rptr. 260, 649 P.2d 902.   At issue there was an ordinance prohibiting “outdoor advertising display signs.”  (P. 185, 185 Cal.Rptr. 260, 649 P.2d 902.)   The court considered whether the prohibition could be construed as limited to commercial speech to avoid prohibition of noncommercial speech resulting in constitutional conflict.  (P. 186, 185 Cal.Rptr. 260, 649 P.2d 902.)   Over a vigorous dissent by Justice Kaus (pp. 191–196, 185 Cal.Rptr. 260, 649 P.2d 902), the majority concluded the language of the ordinance would not allow a narrowing construction:  “We first consider the question of interpreting the term ‘outdoor advertising display signs' to limit it to commercial signs.   Judicial doctrine governing construction of a law to avoid unconstitutionality is well settled.   If ‘the terms of a statute are by fair and reasonable interpretation capable of a meaning consistent with the requirements of the Constitution, the statute will be given that meaning, rather than another in conflict with the Constitution.’  [Citations.]  Consequently, ‘[i]f feasible within bounds set by their words and purposes, statutes should be construed to preserve their constitutionality.’  [Citation.]

“There are limits, however, to the ability of a court to save a statute through judicial construction.   As we explained in Blair v. Pitchess (1971) 5 Cal.3d 258 [96 Cal.Rptr. 42, 486 P.2d 1242, 45 A.L.R.3d 1206], ‘ “[t]his court cannot ․ in the exercise of its power to interpret, rewrite the statute.   If this court were to insert in the statute all or any of the ․ qualifying provisions [required to render it constitutional], it would in no sense be interpreting the statute as written, but would be rewriting the statute in accord with the presumed legislative intent.   That is a legislative and not a judicial function.” ’  (P. 282 [96 Cal.Rptr. 42, 486 P.2d 1242], quoting Seaboard Acceptance Corp. v. Shay (1931) 214 Cal. 361, 369 [5 P.2d 882];  see Flood v. Riggs (1978) 80 Cal.App.3d 138, 156–157 [145 Cal.Rptr. 573].)

“The issue before us, therefore, is whether a construction of section B to avoid any prohibition upon noncommercial signs would constitute a fair and reasonable interpretation of the language of the ordinance.   We conclude that it is not a fair and reasonable interpretation, but would instead constitute a judicial amendment of the ordinance to conform it to constitutional doctrine unanticipated by its drafters.”  (Id., at pp. 186–187, 185 Cal.Rptr. 260, 649 P.2d 902, fn. omitted.)

Construing a local initiative, our Supreme Court recently reaffirmed that, “If the language is clear, there can be no room for interpretation;  effect must be given to the plain meaning of the words.  [Citation.]  [¶] ․ ‘[T]he “intention of the legislature will be determined so far as possible from the language of its statutes, read as a whole, and if the words of an enactment, given their ordinary and popular signification, are reasonably free from ambiguity and uncertainty, the courts will look no further to ascertain its meaning.”  [Citation.]’ ”  (Building Industry Assn. v. City of Camarillo, supra, 41 Cal.3d at pp. 818–819, 226 Cal.Rptr. 81, 718 P.2d 68, quoting Pepper v. Board of Directors (1958) 162 Cal.App.2d 1, 4, 327 P.2d 928;  see also Mills v. Superior Court (1986) 42 Cal.3d 951, 957, 232 Cal.Rptr. 141, 728 P.2d 211, [“We may not ․ insert qualifying provisions not included or rewrite the statute to conform to an inferred intention that does not appear from its language.  [Citations.]”].)

This court recently applied these rules to an initiative measure in People's Advocate, Inc. v. Superior Court (1986) 181 Cal.App.3d 316, 226 Cal.Rptr. 640, where we noted “the fundamental principle that a court may not rewrite a statute to save its constitutionality.   A court has no power to produce ‘a judicially reformed statute,’ one which is made constitutional only ‘by inserting qualifications and exceptions in the statutory language, ․’ [Citations.]”  (P. 330, fn. 15, 226 Cal.Rptr. 640.)

 Consequently, in the absence of ambiguity in the language of the ordinance (see, e.g., City and County of San Francisco v. Farrell (1982) 32 Cal.3d 47, 53, 184 Cal.Rptr. 713, 648 P.2d 935), “ ‘there is no need for construction, and courts should not indulge in it.’ ”  (Board of Supervisors v. Lonergan (1980) 27 Cal.3d 855, 866, 167 Cal.Rptr. 820, 616 P.2d 802, quoting Solberg v. Superior Court (1977) 19 Cal.3d 182, 198, 137 Cal.Rptr. 460, 561 P.2d 1148.)

 An exception to this rule may be applied where it appears clear that a drafting error has been made by those who drafted an enactment.  (People v. Skinner (1985) 39 Cal.3d 765, 775, 217 Cal.Rptr. 685, 704 P.2d 752.)   In such circumstances, “The literal language of enactments may be disregarded to avoid absurd results and to fulfill the apparent intent of the framers.   [Citations].”  (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization, supra, 22 Cal.3d at p. 245, 149 Cal.Rptr. 239, 583 P.2d 1281.)   This exception to the general rule may not be applied here.   While the language of the subject ordinance contains ambiguities subject to interpretation, no party contends the language may be disregarded on the ground it contains drafting errors.

E. If the ordinance conflicts in any manner with a statute enacted by the Legislature, it is void even though the ordinance may have lawful applications, except to the extent the conflicting provisions may be mechanically severed from the ordinance.

Finally, we arrive at the question:  what do plaintiffs have to show in order to have the ordinance, or any of its paragraphs, declared void?   Assuming the individual paragraphs may be considered separately, if any paragraph conflicts with a state statute in some applications but not in others, may the paragraph survive, with its application limited to those situations where there is no conflict with the statute?   As we shall explain, the answer is “no”;  any conflict with a statute voids the paragraph unless the conflicting language can be mechanically severed from the paragraph.

To explain this conclusion we begin with the rules by which legislative enactments have been declared void because of “overbreadth,” i.e., because broad language of an enactment premitted it to be applied in both constitutional and unconstitutional ways.

Before 1974, the rule was:  “The unconstitutionality of legislation must be clear before it can be declared invalid, and if the statutory language reasonably permits, courts will limit the operation of a statute by construction or severance of the language to avoid unconstitutionality.   Where, however, unconstitutionality cannot reasonably be avoided in this way, a statute cannot be upheld merely because a particular factual situation to which it is applicable may not involve the objections giving rise to its invalidity.  [Citations.]”  (People v. Stevenson (1962) 58 Cal.2d 794, 798, 26 Cal.Rptr. 297, 376 P.2d 297;  see, e.g., City of Los Angeles v. Lewis (1917) 175 Cal. 777, 167 P. 390;  County of Los Angeles v. Jessup (1938) 11 Cal.2d 273, 278–279, 78 P.2d 1131;  In re Bell (1942) 19 Cal.2d 488, 122 P.2d 22;  In re Blaney (1947) 30 Cal.2d 643, 184 P.2d 892;  Fort v. Civil Service Commission (1964) 61 Cal.2d 331, 339, 38 Cal.Rptr. 625, 392 P.2d 385;  Mulkey v. Reitman (1966) 64 Cal.2d 529, 544, 50 Cal.Rptr. 881, 413 P.2d 825;  Blair v. Pitchess (1971) 5 Cal.3d 258, 282–283, 96 Cal.Rptr. 42, 486 P.2d 1242.) ³

The “severance of the language” (Stevenson, supra, 58 Cal.2d at p. 798, 26 Cal.Rptr. 297, 376 P.2d 297) meant a mechanical severance, i.e., “where the valid and invalid parts can be separated by paragraph, sentence, clause, phrase, or even single words.  [Citations.]”  (In re Blaney, supra, 30 Cal.2d at p. 655, 184 P.2d 892;  see Santa Barbara Sch. Dist. v. Superior Court (1975) 13 Cal.3d 315, 330, 118 Cal.Rptr. 637, 530 P.2d 605;  People's Advocate, Inc. v. Superior Court, supra, 181 Cal.App.3d at pp. 330–331, 226 Cal.Rptr. 640.)

Thus, where an enactment resulted in both constitutional and unconstitutional applications, unless the unconstitutional applications could be avoided by interpretation or mechanical severance of the language of the enactment, the enactment fell in its entirety.  (See authorities discussed in fn. 3, ante.)   The reason for invalidating the enactment in its entirety was that, if it were to survive, its scope of application was assumed to remain vague during the time its lawful scope was determined on a case-by-case basis by the courts.  (People v. Stevenson, supra, 58 Cal.2d at p. 798, 26 Cal.Rptr. 297, 376 P.2d 297;  In re Blaney, supra, 30 Cal.2d at p. 656, 184 P.2d 892;  In re Bell, supra, 19 Cal.2d at p. 496, 122 P.2d 22.)   This vagueness, in turn, would chill the legitimate exercise of free speech or would deny due process of law to those charged under criminal enactments:  “First, where an entire statute in general terms infringes upon the constitutional right of free speech, it will be stricken down in its entirety;  and second, where, by reason of invalidity of some applications of a criminal statute it fails to state definite criteria of guilt, the whole constitutes an unconstitutional denial of due process of law.”  (Blaney, supra, 30 Cal.2d at p. 656, 184 P.2d 892;  see Tribe, American Constitutional Law (1978) §§ 12–24, 12–25, pp. 710–714;  Monaghan, Overbreadth (1981) Sup.Ct.Rev. 1, 10–14;  Note, The First Amendment Overbreadth Doctrine (1970) 83 Harv.L.Rev. 844.)   Despite its concern with the protection of First Amendment rights and with the application of criminal statutes, the Bell-Blaney rule has been applied where neither concern was at issue.  (See, e.g., Blair v. Pitchess, supra, 5 Cal.3d 258, 96 Cal.Rptr. 42, 486 P.2d 1242;  County of Los Angeles v. Jessup, supra, 11 Cal.2d 273, 122 P.2d 22;  City of Los Angeles v. Lewis, supra, 175 Cal. 777, 167 P.2d 390.)

Implicit in these cases is the recognition that, ordinarily, conflict between a statute and the Constitution does not perforce compel invalidation of the statute.   Rather, invalidation is ordinarily a court-made remedy for constitutional conflict.   These cases recognize the remedy has been chosen for policy reasons:  to protect against dangers arising out of the continuing application of a vague statute.⁴

County of Nevada v. MacMillen (1974) 11 Cal.3d 662, 114 Cal.Rptr. 345, 522 P.2d 1345 arguably represents a significant departure from the line of authorities discussed above.   There, the court considered a facial attack on the 1973 conflict of interest law that required public officials to disclose certain personal financial information.   Plaintiffs asserted the law was “overbroad” in that it required both lawful and constitutionally protected disclosures.  (Id., at pp. 670–671, 114 Cal.Rptr. 345, 522 P.2d 1345.)   The court concluded, “the 1973 act is not free of uncertainties and may generate considerable litigation before those matters are resolved.   Yet, as the United States Supreme Court recently stated ‘․ particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep․  [W]hatever overbreadth may exist should be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly, may not be applied.’  (Broadrick v. Oklahoma, 413 U.S. 601, 615–616 [93 S.Ct. 2908, 2918, 37 L.Ed.2d 830, 842], involving a state statute restricting political activities of state employees.)”  (Id., at p. 672, 114 Cal.Rptr. 345, 522 P.2d 1345.) ⁵

In a similar vein is Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168, 172 Cal.Rptr. 487, 624 P.2d 1215.   There, the court considered a facial constitutional attack on the State Employer-Employee Relations Act (SEERA;  Stats.1977, ch. 1159, § 4, p. 3751;  Gov.Code, § 3512 et seq.):  “Petitioners principally contend that SEERA is unconstitutional on its face because it allegedly conflicts with the ‘merit system’ of employment embodied in the civil service provisions of article VII of the California Constitution, and, in particular, with the powers that article VII assertedly assigns exclusively to the jurisdiction of the State Personnel Board.”  (Pacific Legal Foundation, supra, at p. 174, 172 Cal.Rptr. 487, 624 P.2d 1215.)

“To support a determination of facial unconstitutionality, voiding the statute as a whole,” said the court, “petitioners cannot prevail by suggesting that in some future hypothetical situation constitutional problems may possibly arise as to the particular application of the statute, ․ Rather, petitioners must demonstrate that the act's provisions inevitably pose a present total and fatal conflict with applicable constitutional prohibitions.”  (Id., at pp. 180–181, 172 Cal.Rptr. 487, 624 P.2d 1215, emphasis added.)

County of Nevada and Pacific Legal Foundation may stand for the proposition that if a non-penal enactment does not impact upon the exercise by citizens of constitutional rights, the enactment ordinarily need not be invalidated where it has unconstitutional applications unless its unlawful applications are substantial in relation to its lawful applications.   Rather, the appropriate remedy may be to enjoin those responsible for enforcement of the enactment from enforcing it in unlawful ways.⁶  We note that the United States Supreme Court has recently endorsed such a remedy.  (See Brockett v. Spokane Arcades, Inc. (1985) 472 U.S. 491, 502, 105 S.Ct. 2794, 2801, 86 L.Ed.2d 394, 405;  New York v. Ferber (1982) 458 U.S. 747, 772, 102 S.Ct. 3348, 3362, 73 L.Ed.2d 1113, 1132–1133.) ⁷

In this case, we have no occasion to determine whether County of Nevada or Pacific Legal Foundation sanction a new remedy for constitutional conflict—one that enjoins unlawful applications of an enactment but permits its survival—because we do not think we may use such a remedy in this instance.

Here, the remedy for conflict is necessarily implied in the very constitutional provision that is at issue.  Article XI, section 7 provides in pertinent part, “A county ․ may make ․ within its limits all local ․ ordinances ․ not in conflict with general laws.”  (Emphasis added.)   A county may not adopt an ordinance except insofar as it is authorized by the subject constitutional provision.⁸  (Ex parte Hodges (1890) 87 Cal. 162, 165–166;  see City of Lafayette v. County of Contra Costa (1979) 91 Cal.App.3d 749, 754, 154 Cal.Rptr. 374.)  “The constitutional and statutory power of the board of supervisors is limited to the enactment of such police regulations as are not inconsistent with the general law.”  (In re Mingo (1923) 190 Cal. 769, 772, 214 P. 850.)   An ordinance that conflicts with general law “is unauthorized and void.”  (Ex parte Keeney (1890) 84 Cal. 304, 307, 24 P. 34;  see Cohen v. Board of Supervisors, supra, 40 Cal.3d at p. 290, 219 Cal.Rptr. 467, 707 P.2d 840;  Candid Enterprises, Inc. v. Grossmont Union High School Dist. (1985) 39 Cal.3d 878, 885, 218 Cal.Rptr. 303, 705 P.2d 876.)   The constitutional provision therefore requires the remedy of invalidation;  this court has no choice in the matter.

Nor may we construe “conflict” in article XI, section 7 to mean “substantial conflict.”   As we have noted, we have no power to insert qualifying words in the provision.  (Mills v. Superior Court, supra, 42 Cal.3d at p. 957, 232 Cal.Rptr. 141, 728 P.2d 211.)   Moreover, the subject constitutional provision has been construed by our Supreme Court to preclude survival of a local enactment, in the absence of mechanical severance, where the enactment conflicts with state law in some manner.   Thus in In re Means (1939) 14 Cal.2d 254, 93 P.2d 105, the court invalidated a local ordinance imposing certification and bonding requirements on all plumbers because its application to a single state-employee plumber conflicted with state civil service laws.   The court concluded, “the challenged ordinance, insofar as it attempts to regulate employees of the state, is not legislation having to do with a municipal affair, it cannot be upheld under the ․ provision of the Constitution if it conflicts with the general law.  [¶]  Although the legislature has enacted no statute regulating plumbing, if the city's ordinance is a valid exercise of power, then one whom the state has examined and found eligible for employment as a plumber and who has later entered the state civil service may be unable to work on state property because he cannot pass the examination of a city health officer or licensing board.   The result is a direct conflict of authority.   Either the local regulation is ineffective or the state must bow to the requirement of its governmental subsidiary.   Upon fundamental principles, that conflict must be resolved in favor of the state.”  (Id., at p. 260, 93 P.2d 105.)

In Chavez v. Sargent, supra, 52 Cal.2d at p. 214, 339 P.2d 801, the court invalidated a local “right-to-work” ordinance as in conflict with state statutes.   Following In re Blaney, supra, 30 Cal.2d 643, 184 P.2d 892, the Chavez court concluded the conflicts could not be avoided by a mechanical severance of the language of the ordinance and voided it in its entirety.   (Chavez, supra, 52 Cal.2d at p. 214, 339 P.2d 801.)   Of like result is In re Portnoy (1942) 21 Cal.2d 237 at page 242, 131 P.2d 1.

 We have no authority to disregard the manner in which the subject constitutional provision has been applied by our Supreme Court.  (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)   We think these cases make clear that any facial conflict between a local enactment and a state statute is sufficient to void the enactment unless the conflict may be avoided by an interpretation of ambiguous language or by mechanical severance of the conflict-producing language of the enactment.  (Art. XI, § 7;  Chavez v. Sargent, supra, 52 Cal.2d at p. 214, 339 P.2d 801;  In re Means, supra, 14 Cal.2d at p. 260, 93 P.2d 105.) ⁹

III

Certain Provisions of the Ordinance are Invalid While Others are NotA. The ordinance applies only to the County and its subordinate units of government;  it does not attempt to restrain the Legislature.

 The trial court concluded the subject ordinance purports to abrogate state law and is therefore void in its entirety.   In essence, the trial court concluded the ordinance tries to tell the state Legislature what it cannot do.   In this court, the dissenting opinion reaches the same conclusion.   However, that conclusion fails to interpret an obvious ambiguity in the ordinance in favor of survival of the ordinance as is required by law.

On its face the ordinance purports to impose certain restrictions on public entities.   In common parlance, “public entity,” as used throughout the ordinance, could encompass a component of any unit of government—federal, state, or local.   In the context of the ordinance, the term “public entity” is therefore ambiguous.  (See Building Industry Assn. v. City of Camarillo, supra, 41 Cal.3d at p. 818, 226 Cal.Rptr. 81, 718 P.2d 68 [term “governing body” ambiguous].)

The dissenting opinion concludes the term “public entity” is not ambiguous in part because the term is defined in the Evidence Code, the Government Code, and the Health and Safety Code necessarily to include the state.   However, we find no warrant for the application of these codes to interpret the initiative.   We do not think the voters of Tehama County carried these statutory definitions of “public entity” into the voting booth.  “ ‘The words [of an initiative] must be read in a sense which harmonizes with the subject-matter and the general purpose and object of the [enactment], consistent of course with the language itself.   The words must be understood, not as the words of the civil service commission, or the city council, or the mayor, or the city attorney, but as the words of the voters who adopted the [enactment].   They are to be understood in the common popular way, and, in the absence of some strong and convincing reason to the contrary, not found here, they are not entitled to be considered in a technical sense inconsistent with their popular meaning.’ ”   (Burger v. Employees' Retirement System (1951) 101 Cal.App.2d 700, 702–703, 226 P.2d 38;  followed in Creighton v. City of Santa Monica (1984) 160 Cal.App.3d 1011, 1018, 207 Cal.Rptr. 78 and Arvin Union School Dist. v. Ross (1985) 176 Cal.App.3d 189, 198, 221 Cal.Rptr. 720;  see also People v. Castro (1985) 38 Cal.3d 301, 310, 211 Cal.Rptr. 719, 696 P.2d 111;  Longshore v. County of Ventura (1979) 25 Cal.3d 14, 24, 157 Cal.Rptr. 706, 598 P.2d 866.)   We therefore pursue the meaning of the term, “public entity,” which is undeniably ambiguous when used in a common popular way.

We think it significant that the only “public entity” referred to in official materials supporting the initiative is the County.   The published notice of intention to circulate the initiative proposal expresses an intent to restore “rights and privileges” which “have been violated by the Tehama County governing body.”   Moreover, the ballot argument in favor of the ordinance makes reference to a “county plan” and also to “the very governmental body that created [the county plan]” and states that the ordinance will not affect the “county's building, health and safety ordinances.”

Indulging, as is required, all reasonable intendments in support of the ordinance's validity (Brosnahan v. Brown, supra, 32 Cal.3d at p. 241, 186 Cal.Rptr. 30, 651 P.2d 274), it must be presumed that the voters meant it to have application only to those entities that the ordinance could lawfully affect:  county government and any public entities subordinate to county government.   This interpretation avoids imputing to local voters the unlikely and clearly ultra vires purpose of restraining state or, indeed, federal government.¹⁰  (Cf. People v. Smith, supra, 34 Cal.3d at p. 262, 193 Cal.Rptr. 692, 667 P.2d 149.)

The dissent also disagrees with this conclusion.   In part, the dissent relies on a ballot argument against the initiative.   However, we are aware of no authority authorizing the courts to adopt the meaning of language of an initiative suggested by its opponents.

The most frequently cited rule in support of the use of ballot arguments to interpret an initiative is found in Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization, supra, 22 Cal.3d 208, 149 Cal.Rptr. 239, 583 P.2d 1281, where the Supreme Court opined that “the ballot summary and arguments and analysis presented to the electorate in connection with a particular measure may be helpful in determining the probable meaning of uncertain language.  (See Carter v. Seaboard Finance Co. (1949) 33 Cal.2d 564, 580–581 [203 P.2d 758];  People v. Ottey (1936) 5 Cal.2d 714, 723 [56 P.2d 193];  In re Quinn, supra, 35 Cal.App.3d 473, 483 [110 Cal.Rptr. 881].)”  (Pp. 245–246, 149 Cal.Rptr. 239, 583 P.2d 1281.)  Amador's language is broad enough to authorize reliance on opponents' ballot arguments.   However, neither Amador nor the cases it relied on—Carter, Ottey, and Quinn—use an opponent's ballot argument to define the terms of an initiative.   Rather, all three cases rely exclusively on proponents' arguments.  (See Carter v. Seaboard Finance Co. (1949) 33 Cal.2d 564, 581, 203 P.2d 758;  People v. Ottey (1936) 5 Cal.2d 714, 723, 56 P.2d 193;  In re Quinn (1973) 35 Cal.App.3d 473, 483, 110 Cal.Rptr. 881;  see also Carter v. Com. on Qualifications, etc. (1939) 14 Cal.2d 179, 185, 93 P.2d 140.)   Indeed, in Pacific Legal Foundation v. California Coastal Com., supra, 33 Cal.3d 158, 188 Cal.Rptr. 104, 655 P.2d 306, the court, following Amador, stated, “Statements in ballot arguments in support of a successful initiative measure are properly considered as evidence of the intent behind the measure.  [Citations.]”  (P. 162, fn. 1, 188 Cal.Rptr. 104, 655 P.2d 306, emphasis added.)

To our knowledge, only one Supreme Court case since Amador has considered opponents' ballot arguments to aid the interpretation of an initiative.   In In re Lance W. (1985) 37 Cal.3d 873, 210 Cal.Rptr. 631, 694 P.2d 744, the court mentioned that the ballot arguments of proponents and opponents were in agreement as to the scope and intent of an initiative measure.  (P. 889, fn. 9, 210 Cal.Rptr. 631, 694 P.2d 744.)

While this limited corroborative use of opponents' ballot arguments makes sense, we do not see how opponents' arguments can influence the interpretation of an initiative where, as here, there is a degree of conflict between the proponents' and opponents' arguments.   If our purpose is to ascertain the intent of the majority that passed the initiative, as we think it must be, then the only reasonable inference is that the voters rejected the opposition arguments by passage of the ordinance.   We conclude the opponents' arguments are entitled to no weight in ascertaining the proper meaning of the instant initiative.

The dissent also cites the analysis of the County District Attorney.  (Dis. opn. p. 901.)   The analysis is apparently the “impartial analysis” required by Elections Code section 3781.   Unlike the opponents' arguments, the district attorney's analysis is properly considered in interpreting ambiguous language in the initiative.  (See Carter v. Seaboard Finance Co., supra, 33 Cal.2d at pp. 580–581, 203 P.2d 758.)   However, the district attorney's analysis does not say the initiative is aimed at preventing the state from passing or enforcing its laws.   Rather, the district attorney argued the ordinance would prevent the county from enacting regulations necessary to comply with state legislative directives.  (See dis. opn. at p. 901.)   To a large extent, we agree with that view and shall invalidate various provisions of the ordinance accordingly.   We cannot agree however, that the district attorney's analysis may be used to conclude the voters intended to prohibit state government from acting.

We therefore conclude the instant ordinance does not nullify or abrogate existing state law nor does it purport to limit the power of the Legislature to enact laws in the future.   The trial court erred in concluding to the contrary.

B. Paragraphs (1), (2), (5), (8) and (10) of the ordinance on their face conflict with state laws and are therefore void.

Plaintiffs contend that even if the ordinance applies only to county government and its subordinate components, certain provisions of the ordinance conflict directly with various provisions of the Government Code commanding counties to adopt and enforce general plans.   We agree.

 The Legislature has left to local entities much discretion in planning for the uses of land.  (See Bownds v. City of Glendale (1980) 113 Cal.App.3d 875, 879, 170 Cal.Rptr. 342;  Castiglione v. County of San Diego (1971) 15 Cal.App.3d 880, 882–883, 93 Cal.Rptr. 499.)   Thus, section 65800 provides in pertinent part that “․ the Legislature declares that in enacting this chapter [4 of div. 1 of tit. 7, related to zoning] it is its intention to provide only a minimum of limitation in order that counties and cities may exercise the maximum degree of control over local zoning matters.”   Section 65850, set forth in the margin,¹¹ allows but does not require counties to adopt ordinances regulating the use of land.¹²  The adoption or amendment of a zoning ordinance by a local entity is therefore ordinarily a legislative act subject to referendum or initiative.  (Yost v. Thomas (1984) 36 Cal.3d 561, 570, 205 Cal.Rptr. 801, 685 P.2d 1152;  Associated Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, 590–596, 135 Cal.Rptr. 41, 557 P.2d 473.)

However, the discretion of a local entity to plan for the uses of land is limited by state laws commanding the adoption of a general plan meeting certain requirements.

Section 65300 provides in pertinent part:  “Each planning agency shall prepare and the legislative body of each county and city shall adopt a comprehensive, long-term general plan for the physical development of the county or city, and of any land outside its boundaries which in the planning agency's judgment bears relations to its planning․”  Every general plan must contain a statement of development policies and include nine discrete elements consisting of land use, circulation, housing, conservation, open space, seismic safety, noise, scenic highway, and safety.  (§ 65302.)   Section 65302 and related statutes set forth numerous requirements for the contents of the mandatory elements of a general plan.   For present purposes, a few examples will suffice.

The land use element must designate “the proposed general distribution and general location and extent of the uses of the land for housing, business, industry, open space, including agriculture, natural resources, recreation, and enjoyment of scenic beauty, education, public buildings and grounds, solid and liquid waste disposal facilities, and other categories of public and private uses of land.”  (§ 65302, subd. (a).)

The circulation element, which focuses on transportation needs, must be “closely, systematically, and reciprocally related to the land use element of the plan.”  (Concerned Citizens of Calaveras County v. Board of Supervisors (1985) 166 Cal.App.3d 90, 100, 212 Cal.Rptr. 273.)   One function of a circulation element is “to prohibit a general plan from calling for unlimited population growth in its land use element without providing, in its circulation element, ‘proposals' for how the transportation needs of the increased population will be met.”  (Ibid.)

The housing element must include a program for a five-year schedule of actions by local government to achieve goals of adequate housing through, inter alia, the administration of land use and development controls.  (§ 65583, subd. (c).)

The open space element “shall contain an action program consisting of specific programs which the legislative body intends to pursue in implementing its open-space plan.”  (§ 65564)

The noise element requires that sources of noise (including local industrial plants) be analyzed and quantified and that quantified noise levels “be used as a guide for establishing a pattern of land uses in the land use element that minimizes the exposure of community residents to excessive noise.”  (§ 65302, subd. (f).)

This court has recently twice recognized that a general plan serves as “ ‘a constitution for all future developments.’ ”  (Neighborhood Action Group v. County of Calaveras (1984) 156 Cal.App.3d 1176, 1183, 203 Cal.Rptr. 401;  see Concerned Citizens of Calaveras County v. Board of Supervisors, supra, 166 Cal.App.3d at pp. 96–97, 212 Cal.Rptr. 273.)   Thus “the propriety of virtually any local decision affecting land use and development depends upon consistency with the applicable general plan and its elements.”  (Resource Defense Fund v. County of Santa Cruz (1982) 133 Cal.App.3d 800, 806, 184 Cal.Rptr. 371;  see also Neighborhood Action Group v. County of Calaveras, supra, 156 Cal.App.3d 1176, 203 Cal.Rptr. 401.)   For example, all local zoning ordinances (§ 65860) and all approvals pursuant to the Subdivision Map Act must conform to the general plan.  (§§ 66473.5, 66474;  see also Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 936, 154 Cal.Rptr. 503, 593 P.2d 200.)   No building permit may be issued, no subdivision map approved, and no open-space zoning ordinance adopted, unless the proposed construction, subdivision or ordinance is consistent with the local open-space plan.  (§ 65567.)   Even a conditional use permit must be consistent with the general plan.  (Neighborhood Action Group v. County of Calaveras, supra, 156 Cal.App.3d at p. 1184, 203 Cal.Rptr. 401.)

 Paragraphs (1), (2), (5), (8) and (10) of the ordinance are set forth in the margin.¹³  Each of these paragraphs constitutes an effective repeal of the existing Tehama County General Plan ¹⁴ and, crucially and fatally, a prohibition upon the future adoption and enforcement of a general plan meeting the requirements of state law.   These paragraphs therefore inexorably conflict with the county's state-mandated duties to adopt a general plan and to enforce it in the ways previously described.

Paragraph (2) is also in direct conflict with section 66411, which requires a local agency to adopt an ordinance specifically providing for proper grading and erosion control in subdivisions.

Paragraph (10) is also in direct conflict with section 66474, which commands a county to deny approval of a tentative map or parcel map in the event the county makes one of several enumerated findings, including whether the map is consistent with the general plan or the site is not physically suitable for the type of development or its density.

The language of the affected paragraphs is not ambiguous.   On their face, the enumerated paragraphs plainly purport to prohibit the county from adopting or enforcing a general plan affecting private property in the ways indicated, in accordance with the announced purpose of the ordinance's proponents.

Nor do we perceive any way to save any of these paragraphs by principles of severability.  “ ‘Although not conclusive, a severability clause normally calls for sustaining the valid part of the enactment, especially when the invalid part is mechanically severable.  [Citation.]’  (McCafferty v. Board of Supervisors [ (1969) ] 3 Cal.App.3d [190] at p. 193 [83 Cal.Rptr. 229].)   Such a clause plus the ability to mechanically sever the invalid part while normally allowing severability, does not conclusively dictate it.   The final determination depends on whether ‘the remainder ․ is complete in itself and would have been adopted by the legislative body had the latter foreseen the partial invalidation of the statute’ (In re Bell [ (1942) ] 19 Cal.2d 488, 498 [122 P.2d 22] ) or ‘constitutes a completely operative expression of the legislative intent ․ [and] are [not] so connected with the rest of the statute as to be inseparable.’  (In re Portnoy [ (1942) ] 21 Cal.2d [237] at p. 242 [131 P.2d 1].)”  (Santa Barbara Sch. Dist. v. Superior Court, supra, 13 Cal.3d at p. 331, 118 Cal.Rptr. 637, 530 P.2d 605;  see also Sonoma County Organization of Public Employees v. County of Sonoma, supra, 23 Cal.3d at p. 320, 152 Cal.Rptr. 903, 591 P.2d 1.)   Paragraph 13 of the ordinance provides:  “If any section, part, clause, or phrase hereof is for any reason held to be unconstitutional, the remaining sections shall not be affected, but will remain in full force and effect.”   Nonetheless, we see no way to avoid the conflict with general law by pruning words, clauses or phrases from any of these paragraphs.   Each of these paragraphs is therefore unconstitutional on its face unless we may judicially rewrite it, and, as we have explained, that is something we are not permitted to do.  (Mills v. Superior Court, supra, 42 Cal.3d at p. 959, 232 Cal.Rptr. 141, 728 P.2d 211.)

Certainly all must respect the ability of people to control their lives through the democratic process.   This ordinance is unquestionably the product of a robust populism that is at the very core of the American political process.   One would have to be blind to fail to perceive the evident frustration with governmental land use controls implicit in passage of this initiative.

 However, those who voted for the ordinance fairly tried to eliminate land use planning by Tehama County.   Tehama County is an organic unit of state government.   The voters of Tehama County cannot impede laws passed by the Legislature requiring the county to plan for the development of private property.   While the proponents' appeal to “natural rights” superior to our Constitution and laws may be an available argument in debates on moral philosophy (see e.g., Hart, The Concept of Law (1961) pp. 181–207), it cannot carry the day in this court.   An act may not be held to be unconstitutional because it may be deemed to violate the natural social or political rights of citizens unless it contravenes rights guaranteed by the Constitution.   (People v. Aguiar (1968) 257 Cal.App.2d 597, 602, 65 Cal.Rptr. 171, cert. den. (1968) 393 U.S. 970, 89 S.Ct. 411, 21 L.Ed.2d 383.)

Paragraphs (1), (2), (5), (8) and (10) conflict inexorably with mandates of state law, may not be saved by principles of severability, and are therefore void.  (Mulkey v. Reitman, supra, 64 Cal.2d at p. 545, 50 Cal.Rptr. 881, 413 P.2d 825;  Chavez v. Sargent, supra, 52 Cal.2d at p. 214, 339 P.2d 801;  Bruce v. City of Alameda, supra, 166 Cal.App.3d 18, 212 Cal.Rptr. 304;  see People ex rel. Deukmejian v. County of Mendocino, supra, 36 Cal.3d 476, 484, 204 Cal.Rptr. 897, 683 P.2d 1150.)

C. A portion of paragraph (3) remains valid.

Paragraph (3) provides:  “No public entity shall require the owners of adjacent privately owned real property to repair, build, maintain, broaden or donate land for public roads.”

Implicit in paragraph (3) is the premise the prohibition applies where no adequate compensation is paid the property owner.   State law does not require the dedication of private property for roads in connection with most land development.   For example, section 66475 provides that a local entity “may” impose by ordinance a requirement of dedication of real property within a subdivision for streets.   However, that law merely permits but does not require enactment of a dedication ordinance.

In its petition for rehearing, County posits a conflict between paragraph (3) and sections 66478.1 through 66478.14.   Subdivision (a) of section 66478.4 provides:  “No local agency shall approve either a tentative or a final map of any proposed subdivision to be fronted upon a public waterway river or stream which does not provide, or have available, reasonable public access by fee or easement from a public highway to that portion of the bank of the river or stream bordering or lying within the proposed subdivision.”  (See Kern River Public Access Com. v. City of Bakersfield (1985) 170 Cal.App.3d 1205, 217 Cal.Rptr. 125.) ¹⁵  We think County's point is well taken insofar as paragraph (3) would prohibit County from requiring a subdivider subject to section 66478.4 to “build ․ or donate land for public roads” so as to provide the required access.

Subdivision (b) of section 66478.4 provides that reasonable public access shall be determined by the local agency in which the proposed subdivision is located.   Subdivision (b)(1) of that statute provides “That access may be by highway, foot trail, bike trail, horse trail, or any other means of travel.”   (Emphasis added.)   The statute plainly contemplates that a completed road may be a required form of public access.

A subdivider can “provide” public access, as required by section 66478.4, only by deeding the easement or fee to a governmental entity without compensation.   Thus, section 66478.6 requires that a subdivision map “shall expressly designate the governmental entity to which such [public access] routes are dedicated and its acceptance of such dedication.”   A “dedication” has long been defined “as a voluntary transfer of an interest in land[;]  it partakes both of a nature of a grant and of a gift, ․”  (County of Inyo v. Given (1920) 183 Cal. 415, 418, 191 P. 688, emphasis added, followed in Union Transp. Co. v. Sacramento County (1954) 42 Cal.2d 235, 240, 267 P.2d 10;  accord, Yox v. City of Whittier (1986) 182 Cal.App.3d 347, 353, fn. 4, 227 Cal.Rptr. 311;  Fisher v. Morrison Homes, Inc. (1980) 109 Cal.App.3d 131, 135, 167 Cal.Rptr. 133.)   Where the Legislature uses a legal term of art with a well-known and established legal meaning the term will be given its established meaning unless its context compels a contrary conclusion.  (See Plotitsa v. Superior Court (1983) 140 Cal.App.3d 755, 762, 189 Cal.Rptr. 769.)   Here, we presume the term “dedication” means a voluntary transfer or gift made without compensation.¹⁶

 To the extent paragraph (3) prohibits County from requiring subdividers to “build” and “donate” roads in satisfaction of the requirements of section 66478.4, the paragraph facially conflicts with general law.   (Chavez v. Sargent, supra, 52 Cal.2d at p. 176, 339 P.2d 801.)   We see no way the conflict can be avoided by an interpretation of the language of the paragraph.   However, the conflict does not extend to other words in the paragraph prohibiting County from requiring owners of private property to repair, maintain or broaden land that has already been dedicated to a public entity.

 Section 66478.4 provides its access may be dedicated to a public entity “by fee or easement.”  (Subd. (a);  see Kern River, supra, 170 Cal.App.3d at pp. 1219–1220, 217 Cal.Rptr. 125.)   Plainly a private property owner has no duty to maintain land conveyed in fee to a public entity.   Nor does an owner of land have a common law duty to maintain or repair an easement granted to another;  rather the duty is ordinarily upon the grantee who receives and is the owner of the easement.  (Herzog v. Grosso (1953) 41 Cal.2d 219, 228, 259 P.2d 429;  McManus v. Sequoyah Land Assoc. (1966) 240 Cal.App.2d 348, 356, 49 Cal.Rptr. 592, and authorities cited therein.)   The rule applies to an easement obtained by a public entity.  (Whalen v. Ruiz (1953) 40 Cal.2d 294, 299–300, 253 P.2d 457, see Conklin v. Goodson (1954) 125 Cal.App.2d 823, 825, 271 P.2d 147.)   An exception to this rule is found in Streets and Highways Code section 5610, which requires owners of lots fronting on sidewalks to maintain the sidewalks.  (Jones v. Deeter (1984) 152 Cal.App.3d 798, 802–803, 199 Cal.Rptr. 825.)   However, the concern here is exclusively with roads, not sidewalks.   Nothing in the statutes requires an owner of property to repair, maintain or broaden a public access easement after its dedication.¹⁷

The question remains whether we can properly sever the words “build” and “donate” from paragraph (3) and whether the truncated paragraph could properly be severed from the previously condemned paragraphs of the ordinance.

Here, the words “build” and “donate” are mechanically severable from the remainder of paragraph (3).   Their severance cures the confict with general laws.   We can think of no reason why the citizens of Tehama County would not want the paragraph's surviving restrictions to remain enforceable.   We therefore declare and order that the words “build” and “donate” in paragraph (3) are unlawful and void but shall be severed from the paragraph.  (See Cohen v. Board of Supervisors, supra, 40 Cal.3d at p. 292, 219 Cal.Rptr. 467, 707 P.2d 840.)

Moreover, we shall sever paragraph (3) from the invalid paragraphs.   Although related by their concern with governmental controls on private property,¹⁸ the remaining paragraphs of the ordinance, including paragraph (3), focus on topics distinct from those in the invalid paragraphs aimed at prohibition of a general plan.   The remaining paragraphs are not dependent upon the invalid paragraphs for their coherence or aim.   The independence of the remaining paragraphs is sufficient to justify severability in accordance with the ordinance's severability clause.  (See Cohen v. Board of Supervisors, supra, 40 Cal.3d at p. 292, 219 Cal.Rptr. 467, 707 P.2d 840;  Santa Barbara Sch. Dist. v. Superior Court, supra, 13 Cal.3d at pp. 331–332, 118 Cal.Rptr. 637, 530 P.2d 605;  People's Advocate Inc. v. Superior Court, supra, 181 Cal.App.3d at pp. 331–333, 226 Cal.Rptr. 640.)   Each valid paragraph shall therefore be severed from the diseased paragraphs and shall survive.  (Ibid.)  The first survivor is paragraph (3) with its offensive provisions deleted.¹⁹

D. Paragraphs (4) and (6) conflict with CEQA and are void.

Paragraphs (4) and (6) provide the county shall not restrict (nor impose requirements upon) the type, size, or shape of buildings or fences to be required as a condition for development on private property.²⁰

The Attorney General and the dissenting opinion (p. 902) argue paragraph (4) conflicts directly with state-mandated building codes.  (See Health and Saf. Code, §§ 17910, 17958, 17960;  Danville Fire Protection Dist. v. Duffel Financial & Constr. Co. (1976) 58 Cal.App.3d 241, 248–249, 129 Cal.Rptr. 882.)   However neither paragraph (4) nor (6) refers expressly to building codes.   The limitations are upon requirements as to “type,” “size” or “shape”—not to structural components.   The ballot argument makes clear that, “THIS INITIATIVE'S INTENT IS TO DEAL WITH LAND USE DEVELOPMENT AND SHOULD NOT BE CONSTRUED AS CHANGING THE COUNTY'S BUILDING, HEALTH AND SAFETY ORDINANCES.”  (Emphasis in original.)

In our original opinion, we pointed out that the words “type,” “size,” and “shape” were sufficiently ambiguous so that we could construe them to refer only to the design of buildings or fences to the extent the question of design was one purely of aesthetics.   We concluded such a construction would avoid conflict with state building codes.

 In its petition for rehearing County contends that, even as so construed, these paragraphs conflict with the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.;   hereafter CEQA.)   We are constrained to agree.

CEQA requires all local agencies to prepare, or cause to be prepared by contract, an environmental impact report (EIR) on any project they intend to approve which may have a significant effect on the environment.  (Pub. Resources Code, § 21151;  see Concerned Citizens of Costa Mesa, Inc. v. 32nd Dist. Agricultural Assn. (1986) 42 Cal.3d 929, 932, 231 Cal.Rptr. 748, 727 P.2d 1029;  Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 254, 104 Cal.Rptr. 761, 502 P.2d 1049.)

Paragraphs (4) and (6) are not sufficiently ambiguous to allow us to limit their scope only to projects that have no significant impact on the environment.   Moreover, CEQA expressly contemplates that aesthetic considerations are a part of the environment that must be considered in an EIR.  (Pub. Resources Code, §§ 21001, subd. (b);  21060.5;  Cal.Admin.Code, tit. 14, § 15360.)

Once an EIR shows a project has a significant environmental effect, the reviewing agency must require the project proponent to adopt feasible alternatives or mitigation measures or face denial of approval of the project.  “[T]he responsible reviewing agency must observe the established policy of this state, as enunciated by CEQA and the case law interpreting it, that ‘public agencies should not approve projects as proposed if there are feasible alternatives or feasible mitigation measures available which would substantially lessen the significant environmental effects of such projects ․’  (Pub. Resources Code, § 21002);  that ‘[e]ach public agency shall mitigate or avoid the significant effects on the environment of projects it approves or carries out whenever it is feasible to do so’ (Pub. Resources Code, § 21002.1, subd. (b));  and that if a proposed project is adjudged to have a ‘significant environmental impact,’ the agency certifying the EIR and approving the project must either adopt one or more of the mitigating measures or project alternatives set forth in the EIR, recommend that another agency with primary jurisdiction adopt such mitigating measures, or else make factual findings showing that specific economic, social or other considerations make the mitigation measures or project alternatives identified in the EIR not ‘feasible.’  (Pub. Resources Code, § 21081;  Cal.Admin.Code, tit. 14, § 15091.)”  (Orinda Assn. v. Board of Supervisors (1986) 182 Cal.App.3d 1145;  1168–1169, 227 Cal.Rptr. 688, fn. omitted;  see also San Bernardino Valley Audubon Society, Inc. v. County of San Bernardino (1984) 155 Cal.App.3d 738, 750–752, 202 Cal.Rptr. 423.)

Paragraphs (4) and (6) facially conflict with CEQA's mandate that local agencies responsible for reviewing projects subject to CEQA require the proponent to adopt feasible alternatives of mitigation measures as a condition of approval.   Since the conflict cannot be avoided by a reasonable interpretation of the language of the paragraphs or by severance, they are void.  (Chavez v. Sargent, supra, 52 Cal.2d at p. 214, 339 P.2d 801.)

E. Paragraph (7) remains partially valid.

Paragraph (7) prevents the county from declaring private property to be a historical site, an archeological site, or open space unless the owner or owners of the property are compensated for the diminution in the value of the property caused by the restrictions.²¹

1. Paragraph (7) does not conflict with the state's open space policy.

 The Attorney General asserts paragraph (7) conflicts directly with statutes defining the state's open-space policy (§§ 65561–65564).   These statutes establish policies favoring open space ²² and require County to adopt a local open space plan (§ 65563) together with an action program for implementing it.  (§ 65564.)

However, paragraph (7) does not prohibit the county from establishing open space on private property;  it only requires the county to pay for the diminution, if any, in the value of the land because of such limitation.   The statutes neither state nor imply County is prohibited from providing compensation to property owners as a part of its open space plan or program of implementation.

It may be that, at some time in the future, enforcement of paragraph (7) could, as a practical matter, nullify general plan objectives set forth in section 65561.   Thus, for example, it may be that the county will not have sufficient economic resources to achieve an acceptable level of open space as mandated by state law.   However, at this juncture, the worry is premature.   Plaintiffs have tendered a facial challenge to the ordinance;  whether the economics of its application or enforcement will frustrate state law remains to be seen.  (See Brosnahan v. Brown, supra, 32 Cal.3d at pp. 258–260, 186 Cal.Rptr. 30, 651 P.2d 274.)

To be sure, under current law, in many instances the county could require the dedication of private property for open space by exercising the police power without payment to the property owner.  (See, e.g., Furey v. City of Sacramento (1979) 24 Cal.3d 862, 872, 157 Cal.Rptr. 684, 598 P.2d 844;  Agins v. City of Tiburon (1979) 24 Cal.3d 266, 157 Cal.Rptr. 372, 598 P.2d 25, affd. 447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106;  HFH, Ltd. v. Superior Court (1975) 15 Cal.3d 508, 125 Cal.Rptr. 365, 542 P.2d 237;  Associated Home Builders etc., Inc. v. City of Walnut Creek (1971) 4 Cal.3d 633, 94 Cal.Rptr. 630, 484 P.2d 606.)   However, it does not follow that state law prohibits local legislation which provides for compensation.

 Nor does paragraph (7) on its face contemplate an unlawful gift of public funds.  Article XVI, section 6, of the California Constitution provides in pertinent part that, “The Legislature shall have no power ․ to make any gift or authorize the making of any gift, of any public money or thing of value to any individual, municipal or other corporation whatever;  ․ ²³  This constitutional provision does not apply to an enactment adopted by initiative.  (Estate of Cirone (1984) 153 Cal.App.3d 199, 204–206, 200 Cal.Rptr. 511.) ²⁴

2. Paragraph (7) does not conflict with the National Flood Insurance Program.

 On rehearing, County asserts paragraph (7) conflicts with “mandates” of the National Flood Insurance Program.  (42 U.S.C. § 4001 et seq.)  “The National Flood Insurance Act of 1968 makes flood insurance available through a program with large-scale participation by the federal government and carried out to the maximum extent practicable by the private insurance industry.  42 U.S.C.A. § 4001(b), (d).   Besides making insurance available in high-risk, high-rate areas, the Act also contemplates a unified national program for flood-plain management in order to reduce or avoid further flood losses.  42 U.S.C.A. §§ 4001(c), 4002(b).   Thus, flood insurance is only available in those areas which have adopted land use and control measures conforming to federal criteria.  42 U.S.C.A. §§ 4012(c), 4102.”  (West v. Harris (5th Cir.1978) 573 F.2d 873, 880.)

County asserts paragraph (7) conflicts with the federal statutes because it will prohibit participation in the federal program.   County asserts it will be unable to comply with federal land use criteria calling for management of flood plains.   County's argument fails for two reasons.   First, as we have noted, nothing in the record before us shows County will be unable to comply with the federal regulations.   Second, even assuming paragraph (7) had the effect of prohibiting County's participation, there would be no conflict with article XI, section 7.   Participation in the federal program is voluntary and dependent upon compliance with federally mandated land use controls.  (See, e.g., 42 U.S.C. §§ 4012, 4013, 4022.)   Enactment of the ordinance would simply reflect the lawful exercise of County's discretion not to participate in the federal program.  (See Higgins v. City of Santa Monica (1964) 62 Cal.2d 24, 31–32, 41 Cal.Rptr. 9, 396 P.2d 41.)

3. Paragraph (7) conflicts with CEQA but its offensive provisions are severable.

 In its petition for rehearing, County argues paragraph (7) conflicts with Public Resources Code section 21083.2, a part of CEQA.   That statute generally requires a lead agency to determine whether a project may have a significant effect on unique archaeological resources.  (Pub. Resources Code, § 21083.2, subd. (a).)  If so, an EIR must address the issues.   (Ibid.)  The statute requires mitigation measures where unique archaeological resources are not preserved in place nor left in an undisturbed state.  (Id., subd. (c).)  The project applicant is required to provide a guarantee to the lead agency to pay one-half the estimated cost of mitigating the significant effect of a project on unique archaeological resources (ibid.), provided the cost does not exceed limits set forth in subdivision (e) of the statute.

 We think County's point is well taken.   A conflict between a local enactment and a statute may arise by implication.  (Cohen v. Board of Supervisors, supra, 40 Cal.3d at p. 292, 219 Cal.Rptr. 467, 707 P.2d 840.)   Such may occur where the subject matter of a local enactment has been partially covered by general law, couched in such terms as to indicate clearly that a paramount state concern will not tolerate further or additional local action.   (Id., at p. 293, 219 Cal.Rptr. 467, 707 P.2d 840;  People ex rel. Deukmejian v. County of Mendocino, supra, 36 Cal.3d at p. 485, 204 Cal.Rptr. 897, 683 P.2d 1150;  In re Hubbard (1964) 62 Cal.2d 119, 128, 41 Cal.Rptr. 393, 396 P.2d 809.)   Where the Legislature has enacted a regulatory statute containing detailed criteria, it may be inferred the criteria are exclusive, so that a local entity cannot, consistent with article XI, section 7, impose additional criteria.  (State of California v. County of Santa Clara (1983) 142 Cal.App.3d 608, 613, 191 Cal.Rptr. 204 [holding county could not require use permit as additional condition of obtaining timberland preserve zoning under section 51113.].)

Here, the detailed regulatory scheme set out in section 21083.2—and particularly its express provisions for sharing of mitigation costs—compel an inference the Legislature intended that the statute's provisions for allocating costs are exclusive and not subject to additional local conditions.²⁵  Because paragraph (7) attempts to impose a condition—compensation to owners for any diminution in value—not contemplated by section 21083.2, the paragraph conflicts with general law in violation of article XI, section 7.  (State of California v. County of Santa Clara, supra, 142 Cal.App.3d at pp. 613–614, 191 Cal.Rptr. 204.)   Nor is there ambiguity in the paragraph sufficient to allow us to construe it to avoid the conflict.   However, for reasons previously discussed, the words “an archaelogical site” are hereby declared void and are ordered severed from the paragraph.   As truncated, paragraph (7) shall survive.

F. Paragraph (9) conflicts with state statutory requirements for hearings and is therefore invalid.

 Paragraph (9) limits public hearings so that such shall be held only where the location of a subdivision or commercial manufacturing facility is to be considered, and then only where objection is made to the development proposal.²⁶  However, the Legislature has expressed a policy to involve the public through public hearings at every level of the land use planning process (§ 65033) and has enacted specific statutes requiring public hearings before a local legislative body approves or amends a general plan (§ 65351) and before it adopts or amends a zoning ordinance (§§ 65853, 65854, 65856).   Paragraph (9) plainly conflicts with these statutory requirements.   For reasons previously discussed, these provisions of paragraph (9) are unambiguous, not severable and are therefore void.

 The remaining provisions in paragraph (9) effectively limit the method of giving notice of hearings to publication in a newspaper.²⁷  These provisions conflict directly with notice requirements mandated by chapter 2.7 of division 1 of title 7 (§§ 65090–65095) which require notice by personal delivery or mail in many instances.²⁸  Paragraph (9) is therefore void in its entirety.

G. Half of paragraph (11) is valid.

 Paragraph (11) prohibits the county or its subordinate governmental units from imposing restrictions on water appurtenant to private property and from metering private water wells.²⁹

The parties agree that the second sentence of paragraph (11), prohibiting the metering of private wells, conflicts with no paramount law.

With respect to the first sentence of paragraph (11), the parties invite us to decide whether the state has preempted regulation of all waters, including groundwater.  (See, e.g., Cal. Const., art. X, § 2;  Wat.Code, §§ 1200–1201;  1221;  National Audubon Society v. Superior Court (1983) 33 Cal.3d 419, 443–444, 189 Cal.Rptr. 346, 658 P.2d 709;  People v. Shirokow (1980) 26 Cal.3d 301, 306, 162 Cal.Rptr. 30, 605 P.2d 859;  In re Maas (1933) 219 Cal. 422, 425, 27 P.2d 373;  see generally Rossmann and Steel, Forging the New Water Law:  Public Regulation of “Proprietary” Groundwater Rights (1982) 33 Hastings L.J. 903.)

We have no occasion to resolve this question because, even assuming County may regulate groundwater, the first sentence of paragraph (11) conflicts with CEQA and is therefore void.

This court has long recognized that the appropriation of waters may be subject to CEQA.   Thus, in the landmark case County of Inyo v. Yorty (1973) 32 Cal.App.3d 795, 108 Cal.Rptr. 377, we held that the expanded extraction of groundwater by the City of Los Angeles in the Owens Valley was a “project” requiring an EIR under CEQA.  (P. 806, 108 Cal.Rptr. 377.)   Although the County of Inyo case, like the swallows, has returned to this court periodically, we have consistently adhered to our original insistence on a lawful EIR and have refused to allow the city to expand its groundwater extractions indiscriminately in the absence of a lawful impact report.  (See County of Inyo v. City of Los Angeles (1976) 61 Cal.App.3d 91, 132 Cal.Rptr. 167;  County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, 139 Cal.Rptr. 396;  County of Inyo v. City of Los Angeles (1978) 78 Cal.App.3d 82, 144 Cal.Rptr. 71;  County of Inyo v. City of Los Angeles (1981) 124 Cal.App.3d 1, 177 Cal.Rptr. 479;  County of Inyo v. City of Los Angeles (1984) 160 Cal.App.3d 1178, 207 Cal.Rptr. 425.)   CEQA has also been applied to require a lawful EIR for a project to appropriate water where proponents of the project held appropriative water rights granted by the state.  (Environmental Defense Fund, Inc. v. Coastside County Water Dist. (1972) 27 Cal.App.3d 695, 699, 708, 104 Cal.Rptr. 197.)

The first sentence of paragraph (11) prohibits the county from placing “any restriction” upon the rights of an owner of private property to water appurtenant to the property.   The sentence would therefore prohibit CEQA restrictions, all as noted previously in connection with our discussion of paragraphs (4) and (7).   The sentence therefore conflicts with state law and is void.  (Art. XI, § 7.)   It is hereby severed from the paragraph so that the second sentence of paragraph (11) survives.

H. Paragraphs (12), (13), (14) and (15) are valid.

Construed as applicable to the county and its subordinate units of government, and to legislative enactments of those bodies, these paragraphs survive.   The reference in paragraph (15) to “the provisions of this ordinance” obviously applies only to the surviving paragraphs.³⁰

I. The surviving paragraphs of the ordinance do not conflict with the general plan.

 County asserts the ordinance is unlawful because in some unspecified manner it allegedly conflicts with the Tehama County general plan.   County argues the ordinance violates the requirement of section 65860 that a zoning ordinance be consistent with the general plan.   In support of this argument, County cites de Bottari v. City Council (1985) 171 Cal.App.3d 1204, 217 Cal.Rptr. 790.

The argument is not well taken.   In deBottari the court held a city acted properly in refusing to submit the repeal of a zoning ordinance to the voters by way of referendum.  (Id., at pp. 1208, 1213, 217 Cal.Rptr. 790.)   The court concluded the referendum would achieve an unlawful result:  “Were the voters to repeal the zoning amendment at issue here, the result unquestionably would be a zoning ordinance inconsistent with the amended general plan.”   (Id., at p. 1210, 217 Cal.Rptr. 790.)

County does not identify in what respect the instant ordinance would make zoning inconsistent with the general plan, and with good reason.   Paragraph (15) of the ordinance provides in pertinent part, “Should any provision of this ordinance be contrary to, or in any way inconsistent with, existing ․ ordinances, regulations, or procedures, the provisions of this ordinance shall preempt such ․ ordinances, regulations or procedures.”   The initiative ordinance therefore amends the Tehama County general plan to the extent the plan is inconsistent with the surviving paragraphs of the ordinance.   The amendment of a general plan is a legislative act subject to the initiative process.  (Duran v. Cassidy (1972) 28 Cal.App.3d 574, 582, 104 Cal.Rptr. 793;  see Yost v. Thomas, supra, 36 Cal.3d at p. 570, 205 Cal.Rptr. 801, 685 P.2d 1152.)   Since the surviving paragraphs of the ordinance preempt conflicting provisions of the general plan, the surviving paragraphs cannot be inconsistent with the general plan.   The initiative ordinance is unlawful only to the extent it purports to prohibit County from adopting a general plan meeting statutory criteria;  the surviving paragraphs erect no such barrier.

J. Summary.

The box score on the initiative ordinance stands as follows:

Paragraphs (1), (2), (4), (5), (6), (8), (9) and (10) are void.

Construed as applicable only to the county and its subordinate units of government, the rest of the paragraphs of the ordinance are valid in whole or in part.

With the words “build” and “donate” severed from it, paragraph (3) remains valid.

With the words “an archaelogical site” severed from it, paragraph (7) remains valid.

The first sentence of paragraph (11) is void;  the second sentence remains valid.

Paragraphs (12) through (15) remain valid.

IV

Attorney Fees, Sanctions and CostsA. Plaintiffs are not entitled to attorneys fees.

 Plaintiffs seek attorney fees against interveners ³¹ under the private attorney general doctrine (Code Civ.Proc., § 1021.5), but have waived entitlement to an award of fees against County.   Since the trial court has apparently not yet ruled on plaintiffs' request for fees for the proceedings below, plaintiffs' present request is viewed as a motion for attorney fees on appeal, the availability of which is within our purview.   (See Schoolcraft v. Ross (1978) 81 Cal.App.3d 75, 82, 146 Cal.Rptr. 57.)   “Section 1021.5 [of the Code of Civil Procedure] is a codification of the private attorney general doctrine adopted by this court in Serrano III [Serrano v. Priest (1977) ] 20 Cal.3d 25 [141 Cal.Rptr. 315, 569 P.2d 1303].  (Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 933 [154 Cal.Rptr. 503, 593 P.2d 200].)   The award of attorney fees is proper under section 1021.5 if ‘(1) plaintiffs' action “has resulted in the enforcement of an important right affecting the public interest,” (2) “a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons” and (3) “the necessity and financial burden of private enforcement are such as to make the award appropriate.” ’  (Id., at p. 935 [154 Cal.Rptr. 503, 593 P.2d 200].)”  (Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 317–318, 193 Cal.Rptr. 900, 667 P.2d 704, fn. omitted.)

Under the circumstances, the attorney fee award sought by plaintiffs is inappropriate.   Interveners entered this case by invitation of the court after County, as the nominal defendant, agreed to a stipulated judgment invalidating the initiative.   Their position has been partially vindicated.   To hold interveners financially responsible for defending the people's power of initiative when the nominal defendant has aligned itself with plaintiffs would have a serious chilling effect upon the initiative power, “ ‘one of the most precious rights of our democratic process.’ ”  (See Brosnahan v. Brown, supra, 32 Cal.3d at p. 241, 186 Cal.Rptr. 30, 651 P.2d 274.)   Plaintiffs' request for attorney fees is denied.

B. Interveners are entitled to attorneys fees on appeal.

 Interveners also seek attorneys fees on appeal.   To the extent they have protected the surviving paragraphs of the ordinance, they have been “successful” within the meaning of Code of Civil Procedure section 1021.5.   Moreover, their success meets all statutory criteria necessary for an award of fees.  (Press v. Lucky Stores, Inc., supra, 34 Cal.3d at pp. 317–318, 193 Cal.Rptr. 900, 667 P.2d 704.)   Since interveners have shouldered County's burden of defending the ordinance, an award of fees against County, but not against plaintiffs, is appropriate.   It is immaterial that interveners saved only portions of the ordinance.   Had they not intervened, the ordinance, and important democratic values reflected in it, would have been annihilated by a stipulated judgment.   Their partial victory entitles them to “an appropriate portion” of their total attorneys fees.  (Woodland Hills Residents Assn., Inc. v. City Council, supra, 23 Cal.3d at p. 942, 154 Cal.Rptr. 503, 593 P.2d 200;  Bingham v. Obledo (1983) 147 Cal.App.3d 401, 407, 195 Cal.Rptr. 142.)   On remand, the trial court shall award interveners reasonable attorneys fees incurred on appeal against County in accordance with the foregoing views.  (Schoolcraft v. Ross, supra, 81 Cal.App.3d at pp. 82–83, 146 Cal.Rptr. 57.)

C. Sanctions.

1. Plaintiffs' request for sanctions.

Plaintiffs request imposition of sanctions against interveners for bringing a frivolous appeal.  (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650, 183 Cal.Rptr. 508, 646 P.2d 179.)   For obvious reasons, this request is denied.

2. Interveners' request for sanctions.

 Interveners request sanctions against plaintiffs for bringing a frivolous motion for attorneys fees.   However, since plaintiffs partially prevailed on the merits, their motion was not frivolous.   Interveners' request for sanctions is denied.³²

3. The court's order to show cause.

As its respondents' “brief,” County filed a document that made no legal arguments nor cited any legal authority.   Rather, County filed the following “Position Statement,” which provides in its entirety:

“POSITION STATEMENT

“The COUNTY OF TEHAMA by and through its Board of Supervisors stands ready to attempt to apply, in the conduct of it's planning, zoning and related land use affairs, whatever substantive law this Honorable Court determines to be applicable, should it make such a determination.   Inasmuch as the original Plaintiffs on one hand and the Intervenor-Appellants on the other, are each represented by competent counsel, this issue is submitted by these Defendants-Respondents.  [¶]  Procedurally, these named Defendant-Respondents in the original action regard this case as being resolved and resolved by the Stipulation which they each acting for themselves, or in the case of the named defendant COUNTY OF TEHAMA, the Board of Supervisors acting pursuant to Government Code Section 25203 authorized their counsel to enter into.”   (Emphasis added.)

When County vowed it would attempt to apply “whatever substantive law this Honorable Court determines to be applicable,” County had its fingers crossed.   Thus, when we filed our original opinion in this case, upholding some paragraphs of the ordinance, County forthwith retained private counsel and, on the last day permitted by the California Rules of Court, filed a formidable petition for rehearing asserting, for the first time, the myriad grounds of illegality of the subject ordinance that we have just addressed.³³  (All further references to the rules are to the California Rules of Court.)

As our patient but exhausted readers must appreciate, we rapidly concluded we could not properly digest County's contentions within the 15 days allowed by the rules.³⁴  (See rules 24(a), 27(a).)   Of course, we were aware we could simply deny the petition on the ground County's arguments had not been previously asserted.  (See County of Imperial v. McDougal (1977) 19 Cal.3d 505, 513, 138 Cal.Rptr. 472, 564 P.2d 14.)   However, since we had no occasion to address County's contentions previously, merely denying the petition would have created the possibility that we would have promulgated bad law.   In our view, that was not an acceptable sanction for County's tardiness.  (See, e.g., Kurlan v. Columbia Broadcasting System (1953) 40 Cal.2d 799, 806, 256 P.2d 962.)   The net result of County's briefing tactics was therefore virtually to compel this court to grant rehearing.   County had successfully put the court on its briefing schedule rather than vice versa.

We were so intrigued by the creativity of County's approach to appellate litigation that, on our own motion, we issued an order to show cause to County to appear before the Court to explain its tactics and why monetary sanctions should not be imposed for its failure to raise its legal arguments in its brief.³⁵  (See In re Marriage of Flaherty, supra, 31 Cal.3d at p. 654, 183 Cal.Rptr. 508, 646 P.2d 179.)

County has asserted it could not have reasonably tendered its arguments earlier.   While this is true with respect to one or two points in our earlier opinion, it is simply not true with respect to the vast majority of arguments now advanced by County.   The arguments were available and could have been tendered in a respondent's brief.   As County acknowledged at the hearing on the order to show cause, it made a tactical decision to ride on the coattails of others until our original opinion produced an unfavorable result.   While this tactic may have served County's purposes, it greatly inconvenienced both opposing counsel and the court.

 Rule 26 provides in pertinent part that, “Where ․ any party ․ has been guilty of any ․ unreasonable infraction of the rules governing appeals, the reviewing court may impose upon ․ parties such penalties, including the withholding or imposing of costs, as the circumstances of the case and the discouragement of like conduct in the future may require.”   The rule may be applied to a party filing a defective brief.  (Schulz v. Wulfing (1967) 251 Cal.App.2d 776, 60 Cal.Rptr. 53.)

Rule 14 provides in pertinent part, “Every respondent shall file a respondent's brief, except that a respondent may join in a brief or may adopt by reference any brief in the same or companion cases.”   Here, County's “Position Statement” did not join in a brief nor adopt by reference any other brief.   Rather, County merely referred to other parties and disclaimed any interest in the matter.   Nor was County's “Position Statement” a “brief” under the rules.   It did not satisfy rule 15 that requires, inter alia, that each point in a brief shall appear separately under an appropriate heading.  (See Berger v. Godden (1985) 163 Cal.App.3d 1113, 1116, 210 Cal.Rptr. 109.)   Most fundamentally, County's “Position Statement” did not “properly satisfy [County's] obligation to assist this court” (Estate of Wiedemann (1964) 228 Cal.App.2d 362, 371, 39 Cal.Rptr. 496) under rules 14 and 15.

 In the circumstances, County's failure to file a respondent's brief constituted an unreasonable violation of rule 14(a).   We think sanctions must be imposed under rule 26 to discourage like conduct in the future, since a lack of sanctions would merely encourage the sort of unacceptable tactical disruption of the appellate process that occurred here.   Nonetheless, we have in mind that certain of County's points, raised on rehearing, were meritorious and that many of the same taxpayers who voted for the initiative ordinance will pay the bill for County's violation of the rules.   Considering all circumstances, we shall order County to pay to interveners, as and for sanctions,³⁶ the sum of $500.

D. Costs.

Plaintiffs and County have stipulated that, except for the initial filing fee for the complaint, each party shall bear its own costs of suit.   We shall honor that stipulation.   Interveners shall recover their costs of suit on appeal from County.

V

Remedy

Upon remand the trial court shall discharge the writ of mandate previously issued and issue a new writ commanding appropriate defendants to perform their duties without regard to the invalid provisions of the ordinance.  (See Stoneham v. Rushen (1984) 156 Cal.App.3d 302, 310, 203 Cal.Rptr. 20.)

DISPOSITION

The judgment is reversed and the matter is remanded to the trial court for further proceedings consistent with this opinion.   Plaintiffs' request for attorneys fees is denied.   All other requests for sanctions are denied.   Interveners are awarded attorneys fees on appeal in accordance with the views set forth in the opinion.   Interveners shall recover their costs on appeal from defendant County of Tehama.   Plaintiffs and defendant County of Tehama shall bear their own costs on appeal.   Defendant County of Tehama shall pay to interveners, as and for sanctions for failure to file a respondent's brief, the sum of $500.

I concur with the majority as to those portions of the opinion concerning attorney fees, sanctions and costs.   As to all other portions of the majority opinion, I respectfully dissent.

In my view, the trial court correctly determined that the ordinance purports to abrogate state law in areas of regulation preempted by the state and the ordinance is thereby void.  Article XI, section 7, of the California Constitution provides that a county “․ may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.”   County legislation is in conflict with the state's general law and is void if it duplicates, contradicts, or enters an area fully occupied by general law, either expressly or by legislative implication.  (See People ex rel. Deukmejian v. County of Mendocino (1984) 36 Cal.3d 476, 484–485, 204 Cal.Rptr. 897, 683 P.2d 1150, citing Lancaster v. Municipal Court (1972) 6 Cal.3d 805, 807–808, 100 Cal.Rptr. 609, 494 P.2d 681.) ¹  A statutory initiative is subject to the same constitutional limitations as are the legislative enactments of governmental bodies.   (Legislature v. Deukmejian (1983) 34 Cal.3d 658, 674–675, 194 Cal.Rptr. 781, 669 P.2d 17.)

Certainly, the initiative power is to be construed liberally to promote the democratic process and any reasonable doubts as to the meaning of an initiative's provisions should be construed in favor of its constitutionality.  (Brosnahan v. Brown (1982) 32 Cal.3d 236, 241, 186 Cal.Rptr. 30, 651 P.2d 274.)   Additionally, intent should prevail over literal or plain meaning.  (People v. Davis (1978) 85 Cal.App.3d 916, 924, 149 Cal.Rptr. 777.)   However, the intent and meaning of the provisions of the ordinance at issue are plainly derived from the words on the face of the ordinance.

The ordinance repeatedly prohibits the imposition of land use controls by any “public entity” and specifically states its intent to “preempt” any inconsistent “laws, ordinances, regulations, or procedures, ․”  (Italics added.)   Ordinarily, the words “public entity” encompass the state as well as County government.  (See, e.g., § 811.2;  Health & Saf. Code, § 17920, subd. (i).)  Similarly, “law” is a broad term ordinarily encompassing state law as well as local ordinances and regulations.  (People ex. rel. Deukmejian v. County of Mendocino, supra, 36 Cal.3d at pp. 486–487, 204 Cal.Rptr. 897, 683 P.2d 1150.)   If the drafters of the ordinance had wished to limit its application to Tehama County government and enactments they could easily have done so in plain and simple terms but chose instead to use the broadest terms possible to describe the entities and laws subject to the ordinance.   The consistent, repeated, and purposeful use of such terms can reasonably be construed only to mean the ordinance was intended to restrict state as well as local regulation of land use.

This conclusion finds further support in the ballot arguments and analysis.   (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 245–246, 149 Cal.Rptr. 239, 583 P.2d 1281.)   The ballot argument in favor of the ordinance states an intention to “[e]xpose the fallacy of governmentally dictated land use control” and “[r]educe the burden of the people upon their government and to a greater extent, reduce the burden of the government upon ourselves․”  (Italics added.)   The ballot argument against the ordinance characterizes it as an attempt to eliminate “all governmental control—federal, state, county, and municipal—over privately-owned land.”   (Italics added.)   In his analysis, the County District Attorney states the ordinance “would prevent the County, ․ from enacting regulations in the future ․ as may be necessary to comply with State legislative directives as may, from time to time, be promulgated” and characterizes the ordinance as a “ ‘law to end all laws' respecting land use, housing, land development and land subdivision․”  (Italics added.)

The majority opines the words “no public entity” as used in the ordinance are ambiguous and must be interpreted by reference to the official material supporting the ordinance.   This results in a redefinition of the words public entity as meaning Tehama County (County) public entity.   Such semantical gymnastics comports with neither language nor rules of statutory interpretation.

The general term public entity whenever defined in the codes has included every form of a political subdivision, i.e., Evidence Code section 200 defines public entity as:  “ ‘Public entity’ includes a nation, state, county, city and county, city, district, public authority, public agency, or any other political subdivision or public corporation, whether foreign or domestic.”   Health and Safety Code section 13050.1, in relation to fire protection defines public entity as:  “ ‘Public entity’ includes the state, a county, city, district, public authority, public agency, and any other political subdivision or public corporation in the state.”   Government Code section 811.2 in relation to claims against and liability of public entities, defines public entity as:  “ ‘Public entity’ includes the State, the Regents of the University of California, a county, city, district, public authority, public agency, and any other political subdivision or public corporation in the State.”

The words public entity are clear, certain and free from ambiguity.   There is neither need nor right to engage in statutory interpretation.   The published notice of intention to circulate the initiative proposal, upon which great reliance is placed by the majority in the quest to find the missing words “Tehama County”, while mentioning County as a violator of land owners' rights, frankly states the ambitious purpose of the initiative.   That purpose is “ ‘to limit the power of public entities to restrict the use of privately owned real property.’ ”  (Italics added.)

The only reasonable conclusion from the ballot materials and the language of the ordinance is that the voters intended to restrict state as well as County control of land use.²

An examination of the individual paragraphs of the ordinance demonstrates that at least two provisions of the ordinance enter areas fully occupied by general state law and on that ground are void and that the remaining paragraphs, with limited exceptions, so pervasively conflict with state law with respect to land use as to void the entire ordinance.

A local enactment is void when it enters into areas fully occupied by state law to the exclusion of local regulation, either expressly or impliedly.   There are three tests for determining whether the state has fully occupied an area by implication:  “ ‘(1) the subject matter has been so fully and completely covered by general law as to clearly indicate that it has become exclusively a matter of state concern;  (2) the subject matter has been partially covered by general law couched in such terms as to indicate clearly that a paramount state concern will not tolerate further or additional local action;  or (3) the subject matter has been partially covered by general law, and the subject is of such a nature that the adverse effect of a local ordinance on the transient citizens of the state outweighs the possible benefit to the municipality.’ ”   (People ex rel. Deukmejian v. County of Mendocino, supra, 36 Cal.3d at p. 485, 204 Cal.Rptr. 897, 683 P.2d 1150.)

Paragraph 4 of the ordinance prohibits any public entity from imposing “any requirements or specifications as to type or size of housing or other buildings to be constructed on privately owned real property.”   This paragraph intrudes into the area of state building standards and regulations, established by the Legislature in the State Housing Law (part 1.5 [commencing with § 17910] of division 13 of the Health and Safety Code).   The State Housing Law was enacted for the purpose of ensuring statewide uniformity in the adoption and enforcement of building regulations.  (Stats. 1970, ch. 1436, § 7;  Baum Electric Co. v. City of Huntington Beach (1973) 33 Cal.App.3d 573, 581–582, 109 Cal.Rptr. 260.)   Pursuant to the act, statewide building standards are adopted by the Department of Housing & Community Development, and local governments must adopt and enforce the same requirements contained in the State Building Standards Code.  (Health & Saf.Code, §§ 17958, 17960.)   Through the State Housing Law, the Legislature intended to fully occupy the field of building regulation, thereby preempting any local enactments in this field.   (Danville Fire Protection Dist. v. Duffel Financial & Constr. Co. (1976) 58 Cal.App.3d 241, 248–249, 129 Cal.Rptr. 882.) ³

Paragraph 4 not only impermissibly enters an area reserved to the state, but it also directly conflicts with the authority of the state to enact and enforce building regulations.   For these reasons, paragraph 4 is void.

Paragraph 11 of the ordinance prohibits any public entity from imposing “any restriction upon the rights of the owner of privately owned real property to surface, percolating, or underground water appurtenant thereto.”   State law fully occupies the field of water appropriation.   The Legislature has declared that “the people of the State have a paramount interest in the use of all the water of the State and that the State shall determine what water of the State, surface and underground, can be converted to public use or controlled for public protection.”  (Wat.Code, § 104;  see also Wat.Code, § 105.)   All flowing water, except that previously applied to beneficial use or that is reasonably needed on riparian lands, is the public water of the state and subject to appropriation pursuant to state law.  (Wat.Code, § 1201.)   The State Water Resources Control Board has exclusive jurisdiction over the granting and administration of appropriative water rights.  (Wat.Code, § 174;  Environmental Defense Fund, Inc. v. East Bay Mun. Utility Dist. (1980) 26 Cal.3d 183, 195, 161 Cal.Rptr. 466, 605 P.2d 1.)

The provisions of the Water Code establish a “comprehensive system for development, issuance, and administrative regulation of appropriative water rights.”  (Environmental Defense Fund, Inc. v. East Bay Mun. Utility Dist. supra, at p. 195, 161 Cal.Rptr. 466, 605 P.2d 1;  see generally National Audubon Society v. Superior Court (1983) 33 Cal.3d 419, 441–444, 189 Cal.Rptr. 346, 658 P.2d 709.)   Paragraph 11 of the ordinance impermissibly intrudes upon an area exclusively occupied by state law and directly conflicts with the paramount authority of the state to govern the appropriation of public waters.   Accordingly, that portion of the paragraph which purports to prohibit limitation by any public entity as to surface, percolating or underground water is void.   The second sentence of paragraph 11, however, prohibits only the metering of private water wells by any public entity.   Nothing in either state law or the powers conferred in local legislative bodies by state laws appears to militate against such a local ordinance.

The remaining pertinent paragraphs of the ordinance generally restrict the power of government to regulate the use of privately owned land.   Interveners correctly assert the Legislature has not fully occupied the field of land use regulation.  (See Castiglione v. County of San Diego (1971) 15 Cal.App.3d 880, 882–883, 93 Cal.Rptr. 499.)   Under the applicable state statutes, the Legislature has expressed an intent to provide only minimal limitations over a county's local control of zoning matters (see Gov.Code, § 65800) and has specifically conferred permissive authority on the legislative body of any county to regulate the use of buildings, structures, and land within county boundaries (see Gov.Code, § 65850).   Such local legislative power extends to zoning ordinances which the electorate adopts by initiative measure.   (Associated Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, 135 Cal.Rptr. 41, 557 P.2d 473;  see also Mefford v. City of Tulare (1951) 102 Cal.App.2d 919, 924, 228 P.2d 847.)   When the Legislature has expressed an intent to permit local regulation, preemptive occupation of the field cannot be implied.  (See People ex rel. Deukmejian v. County of Mendocino, supra, 36 Cal.3d at p. 485, 204 Cal.Rptr. 897, 683 P.2d 1150.)

However, plaintiffs and amicus contend, the ordinance directly conflicts with the intent of the State Planning and Zoning Law of California (tit. 7 (commencing with § 65000) of the Gov.Code) to confer upon County officials the discretionary authority to regulate the use of privately owned land in terms of statewide planning criteria and on that ground it is void.  (Doe v. City and County of San Francisco (1982) 136 Cal.App.3d 509, 516–518, 186 Cal.Rptr. 380.)   A nonexhaustive review of key provisions of the state law reveals irreconcilable conflicts invalidating the ordinance.  (See Generally Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 518–519, fn. 18, 113 Cal.Rptr. 836, 522 P.2d 12;  Friends of Lake Arrowhead v. Board of Supervisors (1974) 38 Cal.App.3d 497, 505, 113 Cal.Rptr. 539.)

Underlying the State Planning and Zoning Law is the legislative finding 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, and should proceed within the framework of officially approved statewide goals and policies directed to land use, population growth and distribution, development, open space, resource preservation and utilization, air and water quality, and other related physical, social and economic development factors.”  (§ 65030.1.)   To this end, each county is required to adopt a “comprehensive, long-term general plan for the physical development of the county․”  (§ 65300;  see also Neighborhood Action Group v. County of Calaveras (1984) 156 Cal.App.3d 1176, 1183, 203 Cal.Rptr. 401;  Resource Defense Fund v. County of Santa Cruz (1982) 133 Cal.App.3d 800, 806, 184 Cal.Rptr. 371.)   Every general plan must include, inter alia, a statement of development policies and nine subjects designated as land use, circulation, housing, conservation, open space, seismic safety, noise, scenic highway, and safety elements.  (§ 65302.)

Under the state law, “the propriety of virtually any local decision affecting land use and development depends upon consistency with the applicable general plan and its elements.”  (Resource Defense Fund v. County of Santa Cruz, supra, 133 Cal.App.3d at p. 806, 184 Cal.Rptr. 371;  see also Neighborhood Action Group v. County of Calaveras, supra, 156 Cal.App.3d 1176, 203 Cal.Rptr. 401.)   For example, all local zoning ordinances (§ 65860) and all approvals pursuant to the Subdivision Map Act (§ 66410 et seq.) must conform to the general plan.  (§§ 66473.5, 66474.)  “Special circumstances” must exist before “variances” from the terms of the zoning ordinances can be granted (§ 65906;  see also Miller v. Board of Supervisors (1981) 122 Cal.App.3d 539, 544, 176 Cal.Rptr. 136) and certain negative findings (e.g., that a site is not physically suitable to a proposed type or density of development) necessarily preclude subdivision approvals (§ 66474, subds. (c) and (d)).

Within this scheme, the Legislature has conferred on county legislative bodies broad discretionary power to develop plans to accommodate local conditions and circumstances compatible with minimal statutory requirements.  (§§ 65300, 65300.7.)   The discretion reserved to the local legislative bodies likewise extends to the control over subordinate zoning and subdivision matters (§§ 65800, 65850, 66411).   Yet, the preeminence of the general plan and its mandatory elements over land use concerns (see Neighborhood Action Group v. County of Calaveras, supra, 156 Cal.App.3d at pp. 1183–1184, 203 Cal.Rptr. 401;  Resource Defense Fund v. County of Santa Cruz, supra, 133 Cal.App.3d at p. 806, 184 Cal.Rptr. 371) necessarily presupposes that county officials will exercise well-tempered discretion in regulating the appropriate use of land.

In subversion of the local planning process mandated by state law (see Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 936, 154 Cal.Rptr. 503, 593 P.2d 200), the ordinance candidly divests County of virtually all discretionary power to restrict the use of privately owned land.   In effect, the initiative purports to nullify the provisions of state law vesting planning discretion in the County Board of Supervisors, whose capacity it is to perform mixed legislative, administrative and judicial functions in these matters.  (See Simpson v. Hite (1950) 36 Cal.2d 125, 133, 222 P.2d 225, distinguished on other grounds in Associated Home Builders etc., Inc. v. City of Livermore, supra, 18 Cal.3d at p. 596, fn. 14, 135 Cal.Rptr. 41, 557 P.2d 473.)  “[T]he initiative method cannot be employed where compliance with the requirements of the general law calls for the exercise of the mixed administrative, legislative and judicial powers of the local legislative body”, whose “functions are so intermingled as to render the initiative entirely inconsistent and unworkable․”  (Simpson v. Hite, supra, 36 Cal.2d at p. 134, 222 P.2d 225;  citing Newsom v. Board of Supervisors (1928) 205 Cal. 262, 269, 272, 270 P. 676.)

Relying on Selby Realty Co. v. City of San Buenaventura (1973) 10 Cal.3d 110, 118, 109 Cal.Rptr. 799, 514 P.2d 111, interveners counter that a general plan is “by its very nature merely tentative and subject to change” and that the ordinance only seeks to restrain County from imposing restrictions on specific parcels of privately owned real property without necessarily impinging upon the local planning process.   This argument is specious.   Any power to engage in comprehensive local land use planning would be hollow if County had no power to impose restrictions and controls consistent with, and in furtherance of, the general plan.   In their ballot statement, the proponents of the ordinance revealed their purpose to “Expose the fallacy of governmentally dictated land use control,” branding as irrational the belief that a public body “is wise enough to gather all [the] thinking [of all individual property owners] and draft it into a set of regulations․”  Given the unabashed deregulatory intent of the ordinance, any comprehensive governmental planning at the local level would be an idle act, frustrated by the absence of any regulatory power to achieve planning goals on the ground, no matter how tentative.   Moreover, of concern here is not the application of a legislative standard to specific parcels of real property but rather with the availability of mandamus to compel local governmental officials to exercise planning duties imposed on them by general legislation.  (See Horn v. County of Ventura (1979) 24 Cal.3d 605, 612–613, 156 Cal.Rptr. 718, 596 P.2d 1134.)

The ordinance provides that if any part is declared unconstitutional, the remainder will remain in effect.   Severance is appropriate when the remainder of the ordinance “is complete in itself” and would have been adopted had the voters foreseen its partial invalidation.  (See Sonoma County Organization of Public Employees v. County of Sonoma (1979) 23 Cal.3d 296, 320, 152 Cal.Rptr. 903, 591 P.2d 1.)   Here, the ordinance so pervasively trammels the discretionary authority delegated to county in land use matters that very little would remain if the invalid portions were excised.   In my view, such selective judicial excision would defeat the intent of county voters, who believed they were approving a measure which drastically limits the authority of any public entity to restrict the use of privately owned real property and preempts any law which does otherwise.

The majority opinion acknowledges that most—some might say all—of the substantive portions of the initiative are void for the reason that the specific provisions either conflict with the state imposed duty of the county to enforce a general plan for zoning and land use or with state laws such as CEQA.

But the majority, in lieu of invalidating the entire initiative has opted, under the cloak of severability, to scalpel away the meat of the initiative leaving only a bit of gristle.

Voided is paragraph (1) which prohibits any restrictions on the use of privately owned land except as permitted in the remaining paragraphs of the initiative.   This effectively removes the backbone of “The Landowners Bill of Rights.”   Further excised as void is paragraph (2), prohibiting any requirements or specifications as to private roads;  paragraph (4), prohibiting requirements or specifications as to type or size of housing or other buildings;  paragraph (5), prohibiting any restrictions on size, location or access to commercial business;  paragraph (6), prohibiting requirements or specifications as to fences;  paragraph (8), prohibiting any restrictions on use of private property existing at the time of passage of the ordinance;  paragraph (9), prohibiting public hearings on land use except in narrowly defined situations;  and paragraph (10), prohibiting consideration of soil type or lot size in determining if a subdivision shall be accepted.

Severed from paragraph (3) are the words “build or donate”;  from paragraph (7), “an archeological site”;  and from paragraph (11), all prohibitions against imposing restrictions on the rights of private landowners to surface, percolating or underground waters.

Paragraphs (12) through (15), found to be valid, are purely housekeeping provisions and contain no substantive provisions.

What remains substantively of the initiative?   The private landowners of Tehama County cannot be required to repair, maintain or broaden adjacent public roads, according to the valid portion of paragraph (3).   As a private landowner had no such duty under common law and has none under present statutory and case law, this hardly seems a giant step forward for citizens chafing under the yoke of bureaucratic government.   Under the valid portion of paragraph (7), the County of Tehama (as the majority interprets the words “public entity”) is prohibited from declaring private property to be a historical site or open space without just compensation to the property owner for any diminution in value caused by such restrictions.   To the extent that such provision duplicates the present law of inverse condemnation, it is superfluous;  to the extent it conflicts presently or in the future with the general plan objectives of County, it is illusory.   By the valid portions of paragraph (11), Tehama County is prohibited from metering wells on privately owned property.

It may well be that what the voters of Tehama County carried with them into the voting booth was a desire to reaffirm their existing rights as to repairing and maintaining public roads, to assure their right to compensation for imposition of historical site and open space land use and to prevent the installation of a meter at the old oaken bucket;  but such purposes appear belied by the reason for the initiative as stated by the proponents:  “The reasons for the proposed petition are as follows:  [¶] ‘The right to acquire and own property and to deal with it and use it as the owner chooses, so long as the use harms nobody, is a natural right.   It does not owe its origin to constitutions.   It existed before them.   It is a part of the citizen's natural liberty, a right to which the police power is subordinated.’ ”

I perceive the ordinance is invalid in its entirety under constitutional principles of preemption and the trial court properly granted plaintiffs a writ of mandate compelling county officials to adhere to their statutory duties and disregard the invalid provisions of the ordinance.

I would affirm the judgment.

FOOTNOTES

1.   That provision states:  “A county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.”

2.   The operation of article XI, sections 3 and 4, of the California Constitution is not an issue in this case.   Although Tehama County is a charter county (see General Laws Act No. 8497, Stats.1917, res. ch. 34, p. 1877, as finally amended by Stats.1961, res. ch. 23, p. 4731), it is not contended that the ordinance was adopted pursuant to county charter provisions so as to supersede inconsistent general laws of the state.  (See Pearson v. County of Los Angeles (1957) 49 Cal.2d 523, 535, 319 P.2d 624;  Sonoma County Organization of Public Employees v. County of Sonoma (1979) 23 Cal.3d 296, 316, 152 Cal.Rptr. 903, 591 P.2d 1;  cf. People ex rel. Seal Beach Police Officers Assn. v. City of Seal Beach (1984) 36 Cal.3d 591, 205 Cal.Rptr. 794, 685 P.2d 1145.)   Governing here are general rules with respect to counties as political subdivisions whose powers and functions are subservient to those of the state.  (See County of Los Angeles v. Riley (1936) 6 Cal.2d 625, 627, 59 P.2d 139.)

3.   In City of Los Angeles v. Lewis, supra, 175 Cal. 777, 167 P. 390, the City of Los Angeles leased a manufacturing plant to the County of Los Angeles pursuant to a state statute that empowered counties, inter alia, to lease and operate such plants and to sell the cement.  (P. 778, 167 P. 390.)   The county's auditor refused to pay the rent, was sued, and demurred on the ground the state statute (and hence the lease) was unlawful.  (P. 779, 167 P. 390.)   The auditor contended the statute unconstitutionally allowed the county to operate the plant for an improper “private” purpose—sale of cement to the general public.  (Pp. 779–780, 167 P. 390.)   The county argued the statute authorized use of cement for public purposes and should be upheld because of the lawful use included within the statute's terms.  (P. 780, 167 P. 390.)   However, the court held the language of the statute could not be narrowed by interpretation and, without discussion of the remedy, held it void.  (Pp. 780, 783–784, 167 P. 390;  see also County of Los Angeles v. Jessup, supra, 11 Cal.2d at pp. 278–279, 78 P.2d 1131, following Lewis.)In In re Bell, supra, 19 Cal.2d 488, 122 P.2d 22, members of a labor union engaged in picketing were arrested and charged with, inter alia, violation of a Yuba County ordinance prohibiting the obstruction of any public highway, alley, sidewalk or crosswalk.  (P. 491, 122 P.2d 22.)   In habeas corpus proceedings, the court, in an opinion by Justice Traynor, declared the ordinance void on its face.  (P. 497, 122 P.2d 22.)   The court concluded, “The entire section is therefore invalid even though Yuba County might validly prohibit excessive and unnecessary obstruction of the streets and highways.”  (Ibid.)  The court reasoned that even though the ordinance included conduct that could properly be made illegal, the vagueness of the ordinance allowed discriminatory enforcement by local officials displeased with certain speech and therefore chilled all freedom of discussion that might fall within the purview of the ordinance.  (P. 496, 122 P.2d 22.)   Moreover, the court concluded the ordinance, a penal enactment, was too vague to be enforced.  (Ibid.)Bell 's analysis was followed in In re Blaney, supra, 30 Cal.2d 643, 184 P.2d 892, where the court struck down on its face a so-called “hot-cargo” act that prohibited “secondary boycotts.”  (Pp. 643, 658, 184 P.2d 892.)   The court concluded the prohibition unlawfully included lawful speech and its offending provisions were not mechanically severable.  (P. 656, 184 P.2d 892;  see also Fort v. Civil Service Commission, supra, 61 Cal.2d 331, 339, 38 Cal.Rptr. 625, 392 P.2d 385.)In People v. Stevenson, supra, 58 Cal.2d 794, 26 Cal.Rptr. 297, 376 P.2d 297 the court invalidated a state statute creating a rebuttable presumption that one who obtained stolen property from any person under the age of 18 years did so knowing the property was stolen.  (P. 796, 26 Cal.Rptr. 297, 376 P.2d 297.)   While the court acknowledged the statute had certain lawful applications, the court, citing County of Los Angeles v. Jessup, supra, and City of Los Angeles v. Lewis, supra, concluded the statute was invalid.  (Stevenson, supra, 58 Cal.2d at p. 798, 26 Cal.Rptr. 297, 376 P.2d 297, citations omitted.)Stevenson, in turn, was followed in Blair v. Pitchess, supra, 5 Cal.3d 258, 96 Cal.Rptr. 42, 486 P.2d 1242, where the court invalidated California's civil claim and delivery law on its face even though it was admittedly capable of many constitutional applications.  (Pp. 282–283, 96 Cal.Rptr. 42, 486 P.2d 1242.)

4.   Where a statute does not totally conflict with constitutional provisions, in many instances the question whether the statute should survive could therefore be made to depend on an assessment of the benefits and harms of survival in any given case.   Factors supporting survival could include the difficulty of enacting class legislation capable of avoiding all constitutional conflict, the unwarranted invalidation of constitutionally permissible decisions undertaken in reliance on the statute before its invalidation, and, if such is the case, the ability to isolate clearly and definitively offensive applications of the statute so as to avoid piecemeal adjudications of its legality.   Factors supporting invalidation could include the risks and hardships of uncertainty of continued application, including the fact that the statute would remain on the books (thereby giving facial notice of prohibitions that are, in fact, unlawful) and burdens on administrative and judicial systems caused by case-by-case adjudications of the statute's lawful scope.

5.   This endorsement of a “case-by-case analysis” is plainly at odds with the concern of People v. Stevenson, supra, that “the determination of constitutionality would be a piecemeal and unpredictable process.”   (58 Cal.2d at p. 798, 26 Cal.Rptr. 297, 376 P.2d 297.)

6.   “Sometimes it is said of a statute which is not void ‘on its face’ that it nevertheless is invalid as applied.   This is a malapropism, however, for a provision which is only invalid as applied in the facts of a particular case is possibly capable of valid application in another fact situation.   In reality, it is only the implementing action which purports to apply the legislation and not the provision itself which is invalid in such cases.”  (1 Sutherland, Statutory Construction (4th ed. 1985) § 2.06, pp. 31–32, fn. omitted.)

7.   In New York v. Ferber, supra, 458 U.S. 747 at page 772, 102 S.Ct. 3348 at page 3362, 73 L.Ed.2d 1113 at pages 1132–1133 the court held the rule of Broadrick v. Oklahoma (1973) 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 applicable to the analysis of a penal statute involving speech.   In Brockett v. Spokane Arcades, Inc., supra, 472 U.S. 491, 105 S.Ct. 2794, 86 L.Ed.2d 394 the court held the Ninth Circuit Court of Appeals had erred in declaring a Washington “moral nuisance statute” void on its face.  (Id. 472 U.S. at p. 501, 105 S.Ct. at p. 2800, 86 L.Ed.2d at p. 404.)   The high court recounted:  “Just this Term, in Tennessee v. Garner, 471 US [1], 85 L.Ed.2d 1, 105 S.Ct. 1694 (1985), we held unconstitutional a state statute authorizing the use of deadly force against fleeing suspects, not on its face, but only insofar as it authorized the use of lethal force against unarmed and nondangerous suspects.  [¶] Nor does the First Amendment involvement in this case render inapplicable the rule that a federal court should not extend its invalidation of a statute further than necessary to dispose of the case before it.  Buckley v. Valeo, supra [424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) ], illustrates as much.   So does Cantwell v. Connecticut, 310 US 296, 84 L.Ed. 1213, 60 S.Ct. 900, 128 ALR 1352 (1940), where the Court did not invalidate the state offense of ‘breach of the peace’ on its face but only to the extent that it was construed and applied to prevent the peaceful distribution of religious literature on the streets.   In Marsh v. Alabama, 326 US 501, 90 L.Ed. 265, 66 S.Ct. 276 (1946), the Court struck down a state trespass law only ‘[i]nsofar as the State has attempted to impose criminal punishment’ on those distributing literature on the streets of a company town.  Id., at 509, 90 L.Ed. 265, 66 S.Ct. 276 [at 280].  NAACP v. Button, 371 US 415, 9 L.Ed.2d 405, 83 S.Ct. 328 (1963), did not facially invalidate the state's rules against solicitation by attorneys but only as they were sought to be applied to the activities of the NAACP involved in that case.  Id., at 419, 439, 9 L.Ed.2d 405, 83 S.Ct. 328 [at 330, 341].   More recently, in United States v. Grace, 461 US 171, 75 L.Ed.2d 736, 103 S.Ct. 1702 (1983), we declined to invalidate on its face a federal statute prohibiting demonstrations on the Supreme Court grounds and confined our holding to the invalidity of the statute as applied to picketing on the public sidewalks surrounding the building.  Id., at 175, 75 L.Ed.2d 736, 103 S.Ct. 1702 [at 1705].”  (Id. 472 U.S. at p. 502, 105 S.Ct. at p. 2801, 86 L.Ed.2d at p. 405.)

8.   As enacted in 1879, the provision read, “any county, city, town or township may make and enforce within its limits, all such local, police, sanitary and other regulations as are not in conflict with general laws.”   The provision was first located in section 2 of article XI and then in section 11 of article XI.   In 1970, its present text was adopted and it was placed in section 7 of article XI.   We perceive no substantive change in the 1970 rewording and therefore apply decisions construing the prior provisions to it.   When we refer to “the subject constitutional provision,” we therefore mean both the pre–1970 and post–1970 versions.

9.   We are aware that in Wells Fargo Bank v. Town of Woodside (1983) 33 Cal.3d 379, 189 Cal.Rptr. 41, 657 P.2d 819 and Baron v. City of Los Angeles (1970) 2 Cal.3d 535, 86 Cal.Rptr. 673, 469 P.2d 353 the court affirmed judgments limiting the application of ordinances that conflicted with state law in violation of the subject constitutional provision.   However, in each case, the Supreme Court merely affirmed what the trial court had done.   No question was raised with respect to whether the ordinances should have been declared void.   Cases are not authority for propositions not considered.  (McDowell & Craig v. City of Santa Fe Springs (1960) 54 Cal.2d 33, 38, 4 Cal.Rptr. 176, 351 P.2d 344.)

10.   Section 15 of the ordinance, stipulating that any of its provisions “contrary to, or in any way inconsistent with, existing laws, ․ shall preempt such laws,” might tend to indicate an intent on the part of Tehama County voters to supersede all such laws, federal and state as well as local.  (See People ex rel. Deukmejian v. County of Mendocino, supra, 36 Cal.3d at pp. 486–487, 204 Cal.Rptr. 897, 683 P.2d 1150.)   However, the term “laws” is commonly used by the public to refer to local enactments and, indeed, our Supreme Court has used the term in that sense.  (Galvan v. Superior Court (1969) 70 Cal.2d 851, 856, 76 Cal.Rptr. 642, 452 P.2d 930 [“Any local law that directly conflicts with state legislation is void.”].)   We therefore construe the word “laws” to mean local enactments.

11.   Government Code section 65850 provides:  “The legislative body of any county or city may, pursuant to this chapter, adopt ordinances that do any of the following:“(a) Regulate the use of buildings, structures, and land as between industry, business, residences, open space, including agriculture, recreation, enjoyment of scenic beauty, use of natural resources, and other purposes.“(b) Regulate signs and billboards.“(c) Regulate all of the following:“(1) The location, height, bulk, number of stories, and size of buildings and structures.“(2) The size and use of lots, yards, courts, and other open spaces.“(3) The percentage of a lot which may be occupied by a building or structure.“(4) The intensity of land use.“(d) Establish requirements for offstreet parking and loading.“(e) Establish and maintain building setback lines.“(f) Create civic districts around civic centers, public parks, public buildings, or public grounds, and establish regulations for those civic districts.”

12.   However, every county must adopt an open-space zoning ordinance consistent with the local open space plan.  (§§ 65800, 65910.)

13.   These paragraphs provide as follows:“(1) No public entity shall impose any restrictions as to the use of privately owned real property, except as set forth herein.“(2) No public entity shall impose any requirements or specifications as to private roads.”“(5) No public entity shall restrict any commercial business as to size or location within the County of Tehama, nor shall any public entity place any requirements as to access on any commercial business.”“(8) “No public entity may impose any restriction upon any use of privately owned real property which exists at the time of passage of this ordinance.”“(10) No public entity shall consider either soil type or parcel size as a factor in determining whether a subdivision of land shall be accepted.”

14.   The court takes judicial notice of this plan.  (Evid.Code, §§ 452, subd. (g), 459.)

15.   In this proceeding we assume the statute is constitutional since no assertion of constitutional infirmity has been made.  (See Hathaway v. Baldwin Park Community Hospital (1986) 186 Cal.App.3d 1247, 1254, 231 Cal.Rptr. 334.)

16.   Section 66475.4, subdivision (b) provides in pertinent part, “A dedication requirement imposed as a condition of approval of a tentative map is invalid to the extent to which it is determined by a court to be excessive.   A dedication requirement is excessive to the extent it is not reasonably necessary to meet public needs arising as a result of the subdivision.”   We have no warrant to consider whether section 66475.4 applies to public access dedications.   Even assuming it does, a dedication may be required without compensation to the extent it is not excessive.

17.   We do not imply such a law would pass constitutional muster.

18.   The “single subject rule” applicable to initiatives (see Brosnahan v. Brown, supra, 32 Cal.3d at pp. 245–253, 186 Cal.Rptr. 30, 651 P.2d 274) is not at issue in this litigation.

19.   The county's petition for rehearing also contends paragraph (3) conflicts with section 66475.4.  (See fn. 16, ante.)   Since we have deleted the word “donate,” and hence the restriction upon dedications, from the paragraph, we need not consider this contention.

20.   These paragraphs provide:“(4) No public entity shall impose any requirements or specifications as to type or size of housing or other buildings to be constructed on privately owned real property.”“(6) No public entity shall impose requirements or specifications as to size, shape, or fencing to be required as a condition for development or obtaining any permit.”

21.   Paragraph (7) provides:  “(7) No public entity shall impose any restriction upon the use of privately owned real property by declaring said property to be a historical site, an archaeological site, or open space unless the owner or owners of said property are justly compensated for the diminution in the value of said property caused by the restrictions so imposed.”

22.   Section 65561 provides:  “The Legislature finds and declares as follows:“(a) That the preservation of open-space land, as defined in this article, is necessary not only for the maintenance of the economy of the state, but also for the assurance of the continued availability of land for the production of food and fiber, for the enjoyment of scenic beauty, for recreation and for the use of natural resources.“(b) That discouraging premature and unnecessary conversion of open-space land to urban uses is a matter of public interest and will be of benefit to urban dwellers because it will discourage noncontiguous development patterns which unnecessarily increase the costs of community services to community residents.“(c) That the anticipated increase in the population of the state demands that cities, counties, and the state at the earliest possible date make definite plans for the preservation of valuable open-space land and take positive action to carry out such plans by the adoption and strict administration of laws, ordinances, rules and regulations as authorized by this chapter or by other appropriate methods.“(d) That in order to assure that the interests of all its people are met in the orderly growth and development of the state and the preservation and conservation of its resources, it is necessary to provide for the development by the state, regional agencies, counties and cities, including charter cities, of statewide coordinated plans for the conservation and preservation of open-space lands.“(e) That for these reasons this article is necessary for the promotion of the general welfare and for the protection of the public interest in open-space land.”

23.   The prohibition in article XVI, section 6, does not apply to powers exercised by a county under a charter.  (Social Workers Union Local 535 v. County of Los Angeles (1969) 270 Cal.App.2d 65, 78, 75 Cal.Rptr. 566.)   However, as has been noted, Tehama County's status as a chartered county is not at issue here.  (See fn. 2, ante.)

24.   Moreover, in determining whether an expenditure of public funds constitutes an unlawful gift, the primary question is whether the funds are to be used for a “public” purpose or a “private” purpose.  (County of Alameda v. Janssen (1940) 16 Cal.2d 276, 281, 106 P.2d 11.)   If funds are spent for a “public purpose,” there is no unlawful gift.  (Ibid.)  The determination of what constitutes a public purpose is primarily a matter for legislative discretion, which is not disturbed so long as it has a reasonable basis.  (Ibid.)Here, since the public has an interest in preserving historical sites, archeological sites, and open space, expenditures for those purposes would also serve the public interest and would not be gifts.Nor is there a gift because these purposes can often be accomplished by exercise of the police power without compensation.   On this question, Patrick v. Riley (1930) 209 Cal. 350, 287 P. 455 controls.   There, the Legislature passed an act providing for tuberculosis testing of cows, for destruction of tubercular animals, and for payment from state funds to owners of cows so destroyed.  (P. 352, 287 P. 455.)   State Controller Riley refused to pay Patrick for two cows destroyed pursuant to the act, on the ground payment would constitute an unconstitutional gift of public funds.  (P. 353, 287 P. 455.)   Patrick petitioned for a writ of mandate directing payment.  (Ibid.)  The court concluded the Legislature could have authorized destruction of tubercular cattle without compensation to the owner under the police power.  (Id., at p. 355, 287 P. 455.)   Nonetheless, the court found no gift of public funds because compensation would “accomplish much in the way of precluding or dissipating ․ opposition and resistance to the proper and immediate enforcement of such legislation, ․”  (Id., at p. 357, 287 P. 455.)   Similarly, in the instant case, payment of compensation under paragraph (7) of the initiative must be upheld on the ground it would accomplish much in the way of alleviating the hostility toward the land use planning activities of government that is manifest in passage of the initiative itself.

25.   Once again, we assume the constitutionality of the statute.   (See fn. 15, ante.)

26.   Paragraph (9) provides:  “A public entity may require a public hearing as to land use related matters only when the location of a subdivision or a commercial manufacturing facility is to be considered.   When application is made to a public entity for establishment of a subdivision or placement of a commercial manufacturing facility, said entity shall give notice of said application by publication in a newspaper of general circulation within the proposed location, stating that such application has been made, and stating that if no objection to said application has been made and stating that if no objection to said application be received [sic ] from a resident of the immediate vicinity of said location, within 30 days, said application will be granted.   Should objection be received from a resident of the immediate vicinity of said proposed location, a public hearing shall be held within 60 days of filing complaint, as to the location of said subdivision or commercial manufacturing facility.”

27.   One has to read the publication in order to object in order to obtain a hearing.

28.   In light of this direct statutory conflict, it is unnecessary to consider whether paragraph (9) facially conflicts with constitutional due process requirements for notice and hearings.  (But see Horn v. County of Ventura (1979) 24 Cal.3d 605, 616–619, 156 Cal.Rptr. 718, 596 P.2d 1134.)

29.   Paragraph (11) provides:  “No public entity shall impose any restriction upon the rights of the owner of privately owned real property to surface water, percolating water or underground water appurtenant thereto.   The metering of private water wells by any public entity is specifically prohibited.”

30.   These paragraphs provide as follows:“(12) No part of this ordinance may be amended except by majority vote of the qualified electors of Tehama County.“(13) If any section, part, clause or phrase hereof is for any reason held to be unconstitutional, the remaining sections shall not be affected, but will remain in full force and effect.“(14) As used herein, the word ‘shall’ is mandatory, and the word ‘may’ is permissive.“(15) Should any provision of this ordinance be contrary to, or in any way inconsistent with, existing laws, ordinances, regulations or procedures, the provisions of this ordinance shall preempt such laws, ordinances, regulations, or procedures.”

31.   Code of Civil Procedure section 1021.5 authorizes an award of attorney fees to “a successful party against one or more opposing parties․”  An intervener is an opposing party for purposes of the statute.  (See Catello v. I.T.T. General Controls (1984) 152 Cal.App.3d 1009, 200 Cal.Rptr. 4.)

32.   Interveners' request for taking of judicial notice of minutes of a meeting of the Tehama County Board of Supervisors is denied.

33.   We imply no improper conduct of any kind by County's private counsel.   They had no part in County's earlier decision to refrain from advancing legal arguments in their brief.   We see no impropriety in their filing the petition for rehearing.

34.   Unlike the Supreme Court, this court has no authority to extend the time of finality of an opinion once filed.  (See rule 24(a).)

35.   The order to show cause was also originally addressed to the County Counsel, but that order has been dismissed.

36.   And in addition to attorneys fees or other costs on appeal.

1.   The operation of article XI, sections 3 and 4, of the California Constitution is not an issue in this case.   Although Tehama County is a charter county (see General Laws Act No. 8497, Stats.1917, res. ch. 34, p. 1877, as finally amended by Stats.1961, res. ch. 23, p. 4731), no argument is tendered that the initiative ordinance in question was adopted pursuant to county charter provisions so as to supersede inconsistent general laws of the state.  (See Pearson v. County of Los Angeles (1957) 49 Cal.2d 523, 535, 319 P.2d 624;  Sonoma County Organization of Public Employees v. County of Sonoma (1979) 23 Cal.3d 296, 316, 152 Cal.Rptr. 903, 591 P.2d 1.)   Governing here are general rules with respect to counties as political subdivisions whose powers and functions are subservient to those of the state.  (See County of Los Angeles v. Riley (1936) 6 Cal.2d 625, 627, 59 P.2d 139.)

2.   Interveners contend a limited intention is evinced by the statements in the supportive ballot argument that “[t]he current County plan has been declared a failure by the very governmental body that created it” and the ordinance “SHOULD NOT BE CONSTRUED AS CHANGING THE COUNTY'S BUILDING, HEALTH AND SAFETY ORDINANCES.”   Read in the context of the entire argument, these statements do not reasonably indicate an intent to limit the effect of the ordinance to County government.

3.   The holding in Baum Electric Co. v. City of Huntington Beach, supra, is not to the contrary.   In that case the court held that state law does not prohibit cities from adopting additional regulations on areas not covered by state statute as certain specified, narrowly defined subjects were reserved to local governments.  (Id., at pp. 577–578, 584–585, 109 Cal.Rptr. 260.)   An express and limited allocation of authority by the Legislature to local governments is a far cry from the ordinance here, which attempts to eliminate all legal requirements in regard to housing and building standards.

SIMS, Associate Justice.

PUGLIA, P.J., concurs.