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Initiatives & Referenda

Background:

The power of Initiatives & Referenda is given to voters in the cities and counties (local government) of California by the California State Constitution.
The initiative and referendum are frequently used on the local level to enact or repeal land use regulations. For example, Initiatives and referenda have been used to:
            Prohibit street widening.
            Prevent dump Site Acquisition.
            Authorize the construction of transit facilities.
            Impose a moratorium on hazardous waste facilities.
            Require voter approval of future general plan amendments, rezonings, and certain  types of development such as:
            Hotel construction.
            Offshore oil drilling.
            Rescinded general plan amendments and rezoning.

The initiative and referendum powers only apply to legislative acts, such as:
            General plan adoption and amendments.
            Specific plan adoption and amendments.
            Zoning.
            Development agreement approvals.
            Policies of general applicability in the city or county.

Non-legislative (administrative, quasi-judicial) acts are things like:
            Subdivision approvals.
            Issuance use permits.
            Variances etc.

As a general rule, California law doesn't allow local government to campaign for or against an initiative or referendum. However, local government is authorized and often required to provide the electorate with educational, informational materials on pending initiatives and referenda. To determine whether a local government's action is proper depends on prudent consideration of such issues as style, theme, and timing of the communication. The Courts tend to focus on whether the local government discussed the concerns of both sides and presented all the facts in a fair manner.

Initiatives:

The initiative power allows voters to directly enact legislation. The California Constitution defines the initiative as "the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them."

An initiative can't:
            Enact zoning that is inconsistent with the general plan.
            Create an internal inconsistency within the general plan.
            Be unconstitutional:
                        Taking of private property without fair compensation.
                        Violate the right to privacy.

Unless the initiative itself provides otherwise, a successful initiative may only be amended or repealed by a vote of the electorate. The potential for inflexible land use regulation is a frequent basis for criticizing "ballot box planning."

Rival Ballot Measures: If two initiatives include conflicting provisions, and each receives a majority vote at the same election, the one receiving the most votes controls.

Challenges:
            Petition has serious technical flaws (must be before the election), for example:
                        Not enough votes.
                        Omission of statutorily required information.
            If the ballot arguments mailed are to the voters are false, misleading, or inconsistent with the requirements of the Elections Code, they must be challenged within ten days of publication. The remedy is the amendment or deletion of the erroneous argument.
            Substantial flaw in the measure (courts usually refuse to hear until after the election, because if the measure fails, the flaw question doesn't matter), for example:
                        Inconsistent with general plan.
                        Taking of property.
                        However, recently the courts have indicated an increased willingness to review legal validity before submission to the electorate.

Protection Against Initiatives, Vested Rights:
            These areas are highly technical and beyond the scope of this overview:
                        Common Law Rule, Permits, and Substantial Performance.
                        Development Agreement, a contract between a developer and the local government that locks in the law affecting the development and may also give assurances that the developer will receive discretionary approvals.
                        Vesting Tentative Map, a tool to insulate projects from future changes in the law.

Procedural Requirements for an Initiative.

The basic procedure for enacting or repealing legislation through the initiative process (general law cities, charter cities, and counties are all similar) is:

              1. Submittal of the petition form and initiative measure to the elections official (usually city or county clerk) of the local government, with a request that a ballot title and summary be prepared.
              2. File notice of intent to circulate the petition.
              3. Preparation of ballot title and summary by county counsel or city attorney.
              4. Publication and/or posting of notice of intent to circulate a petition.
              5. Proponents circulate a petition for signatures, which includes the proposed legislation. Initiative proponents have 180 days from receipt of a ballot title and summary, in which to collect sufficient signatures:
                        In a county, an initiative petition must be signed by at least 10% of the entire vote cast in the last gubernatorial election, in order to qualify the initiative for a regular election. A special election requires 20%.

                        In a city:           Population:                                           % Needed Type of Election:
                                                                                                                    Regular     Special

                                                1,000 or more Registered Voters:                     10%         15%

                                                1,000 or less Registered Voters:                       25% or 100 Voters
                                                                                                                        whichever is less.

              6. Proponents submit the petition to the local elections official city.
              7. The local elections official has 30 days, excluding Saturdays, Sundays, and holidays from the date of filing the petitions to examine the petitions and determine if it contains the required number of valid signatures.
              8. The city clerk certifies that the petition is sufficient.
              9. The city council must either:
                        Adopt the proposed measure without change; or
                        Submit the measure to the electorate.
                                    Preparation of impartial analysis and arguments to appear on ballot.
            10. Election campaign and vote.
            11. If it is place before the voters and receives a majority vote, the measure becomes effective.

In additions to this procedure, the city council may choose to place a measure before the voters for approval, eliminating the need for a petition drive.

Referenda:

The referendum power allows voters to repeal legislation adopted by a local government (city council or county board of Supervisors). The California Constitution defines the referendum as "the power of the electors to approve or reject statutes or parts of statutes...." Unlike the initiative power, the referendum only applies to newly enacted legislation.

Procedural Requirements for a Referendum.

The basic referendum process (general law cities, charter cities, and counties are all similar) is:
              1. Circulation of referendum petition (no notice required).
              2. Submittal of petition to local government official prior to date when subject legislation would take effect.
              3. Examination of petition form and signatures.
                        In a county, a referendum petition must be signed by at least 10% of the entire vote cast in the last gubernatorial election.

                        In a city:           Population:                                                       % Needed:

                                                1,000 or more Registered Voters:                           10%

                                                1,000 or less Registered Voters:                       25% or 100 Voters
                                                                                                                        whichever is less.

              4. The local elections official has 30 days, excluding Saturdays, Sundays, and holidays from the date of filing the petitions to examine the petitions and determine if it contains the required number of valid signatures.
              5. The local elections official certifies that the petition is sufficient.
              6. The impact of this petition is to suspend the effectiveness and implementation of the challenged legislation.
              7. The city council must either:
                        Repeal the challenged legislation; or
                        Submit it to the voters:
                                    Preparation of impartial analysis and arguments to appear on ballot.
              8. Election campaign and vote.
              9. If a majority of the voters, vote against the legislation it is repealed.
            10. If the legislation is repealed, the city council may not enact other legislation "similar in its essential features" for one year. However, there is no equivalent restriction on counties.