Opinion
For Opinion on Hearing, see 205 Cal. Rptr. 801, 685 P.2d 1152.
Opinions on pages 78-99 omitted.
Francis Sarguis, Santa Barbara, for plaintiffs and appellants.
Frederick W. Clough, City Atty., Santa Barbara, and Schramm & Raddue, Santa Barbara, for defendant and respondent.
Mullen, McCaughey & Henzell, and James W. Brown and Ian M. Guthrie, Santa Barbara, for intervener and respondent.
ASHBY, Associate Justice.
Appellants are voters of the City of Santa Barbara who circulated a referendum petition in opposition to two resolutions and an ordinance adopted by the City Council of Santa Barbara. Respondent Thomas, the city clerk, refused to process the referendum petition, on the advice of the city attorney that the three described actions of the city council were not subject to referendum. Appellants filed a petition for writ of mandate in superior court to compel the [189 Cal.Rptr. 550] city clerk to process the referendum petition. The trial court denied the petition for writ of mandate, and this appeal followed.
The referendum petition involved three planning actions of the city council in connection with a proposed hotel and conference center development by intervener and respondent Park Plaza Corporation to be located on a parcel of the "East Beach" area of Santa Barbara, north of East Cabrillo Boulevard and west of Punta Gorda Street, commonly referred to as the Southern Pacific property. The actions were (1) resolution No. 81-091, adopted July 28, 1981, amending the city's General Plan; (2) resolution No. 81-092, adopted July 28, 1981, adopting a Specific Plan of development previously approved by the City Planning Commission; and (3) ordinance No. 4115, adopted August 4, 1981, changing the zoning of the property from R-1/M-1/C-2 to R-1/R-4.
We hold the trial court correctly concluded that the three actions were not subject to referendum, because the city council was acting administratively under authority delegated by the state to implement legislative policies declared by the state on a matter of statewide concern.
THE CALIFORNIA COASTAL ACT
The Legislature has enacted a comprehensive scheme governing land use planning for the entire coastal zone of California, the California Coastal Act of 1976, Public Resources Code section 30000 et seq. (See generally, California Coastal Com. v. Quanta Investment Corp., 113 Cal.App.3d 579, 587, 170 Cal.Rptr. 263; 8 Pacific L.J. 351 (1977).) The act expressly declares on behalf of all the people of California a statewide interest in the coastal zone. The Legislature found that "the California coastal zone is a distinct and valuable natural resource of vital and enduring interest to all the people" and that "existing developed uses, and future developments that are carefully planned and developed consistent with the policies of this division, are essential to the economic and social well-being of the people of this state ...." (§ 30001, subds. (a), (d). See also CEEED v. California Coastal Zone Conservation Commission, 43 Cal.App.3d 306, 320-324, 118 Cal.Rptr. 315 [construing predecessor 1972 coastal initiative].) The Legislature further found that "the basic goals of the state for the coastal zone" are to: "(a) Protect, maintain, and, where feasible, enhance and restore the overall quality of the coastal zone environment and its natural and manmade resources. [p ] (b) Assure orderly, balanced utilization and conservation of coastal zone resources taking into account the social and economic needs of the people of the state. [p ] (c) Maximize public access to and along the coast and maximize public recreational opportunities in the coastal zone consistent with sound resources conservation principles and constitutionally protected rights of private property owners. [p ] (d) Assure priority for coastal-dependent and coastal-related development over other development on the coast. [p] [and] (e) Encourage state and local initiatives and cooperation in preparing procedures to implement coordinated planning and development for mutually beneficial uses, including educational uses, in the coastal zone." (§ 30001.5.)
All section references hereafter are to the Public Resources Code unless otherwise indicated.
I do not wish my comments to be misunderstood. The result of an initiative or referendum must comply with the overall coastal regulations just as is required of city council action. One merely substitutes for the other.
The act relies upon a combination of (a) local land use planning procedures and enforcement to achieve maximum responsiveness to local conditions, accountability, and public accessibility, and (b) continued state coastal planning and management through a state coastal commission to insure conformity with the provisions of the act. (§ 30004, subds. (a), (b).)
Accordingly, all local governments lying in whole or in part within the coastal zone must prepare and submit to the California Coastal Commission a local coastal program (LCP). (§ 30500, subd. (a).) The LCP "means a local government's (a) land use plans, (b) zoning ordinances, (c) zoning district [189 Cal.Rptr. 551] maps, and (d) within sensitive coastal resources areas, other implementing actions, which, when taken together, meet the requirements of, and implement the provisions and policies of, this division at the local level." (§ 30108.6.) "Local government" means "any chartered or general law city, chartered or general law county, or any city and county." (§ 30109.)
The act specifies procedure and methodology for preparing LCP's (§§ 30500, subd. (c), 30501, and accompanying regulations of the Coastal Commission, Cal.Admin.Code, tit. 14. § 13500 et seq.) including specific requirements for public hearings and other opportunities for full public "participation" in preparation of the program. (§§ 30006, 30500, subd. (c), 30503, 30339, subd. (d).)
The precise content of each LCP shall be determined by the local government in full consultation with the commission. (§ 30500, subd. (c).) However, the content of the LCP must "meet the requirements of, and implement the provisions and policies of [the act] at the local level." (§§ 30108.6, 30200, 30512, subd. (c), 30512.2, 30513, 30514.)
In section 30200 et seq. the Legislature has set forth the specific "policies" which "shall constitute the standards by which the adequacy of local coastal programs ... are determined...." (§ 30200.) There are specific policies on public access (§§ 30210-30214), recreation (§§ 30220-30224), protecting the marine environment (§§ 30230-30236), protecting land resources (§§ 30240-30244), development (§§ 30250-30255), and industrial development (§§ 30260-30264).
Pursuant to section 30511, the LCP may be submitted to the state Coastal Commission all at once or in two phases, (1) land use plan (LUP), and (2) zoning ordinances, etc. The commission will certify an LUP or any amendments thereto only "if it finds that a land use plan meets the requirements of, and is in conformity with, the policies of Chapter 3 (commencing with Section 30200)...." (§ 30512, subd. (c); see also § 30512.2.) Pursuant to section 30513, the commission may reject zoning ordinances, etc., only on the grounds that "they do not conform with, or are inadequate to carry out, the provisions of the certified land use plan...." A certified LCP and all local implementing ordinances, regulations, and other actions may be amended by the local government but no such amendment shall take effect until it has been certified by the commission in accordance with the provisions of sections 30512 and 30513. (§ 30514, subds. (a), (b).) Prior to certification of the local government's LCP, development in the coastal zone generally requires a permit from the commission in addition to any permits required by the local government. (§§ 30600, 30600.5.) After certification of the LCP by the commission, such permit authority is delegated to the local government. (§ 30519.) Even after certification, the commission is to periodically review the LCP to determine whether it is being effectively implemented in conformity with the policies of the act. (§ 30519.5.)
SANTA BARBARA'S LAND USE PLAN
In July 1977, the City of Santa Barbara commenced preparation of the LUP portion of its LCP. After numerous public hearings, the LUP was adopted by the City Council as amended on December 16, 1980.
The city's LUP sets forth the following policies applicable to the property in dispute in this case: "Policy 4.1 [p ] In order to preserve and encourage visitor-serving commercial uses, appropriate areas along Cabrillo Boulevard ... shall be designated 'Hotel and Related Commerce I (HRC-I)' and 'Hotel and Related Commerce II (HRC-II).' [p ] HRC-I designation shall include hotels, motels, other appropriate forms of visitor-serving overnight accommodations and ancillary commercial uses directly related to the operation of the hotel/motel. [p ] HRC-II designation shall include all uses allowed in HRC-I and such other visitor-serving uses examples such as, but not limited to, restaurants, cafes, art galleries, and commercial recreation establishments. Uses such as car rentals and gas stations will require a conditional use permit. [p ] .... [p ] Policy 4.6 [p ] The [189 Cal.Rptr. 552] 'Southern Pacific Property' (that area roughly bounded by Milpas Street and Punta Gorda Street on the east, Cabrillo Boulevard on the south, the City parcel located at the approximate extension of Garden Street on the west, and the existing Southern Pacific Railroad right-of-way on the north) shall be designated for a mixture of visitor-serving uses and recreational opportunities and planned as an integral unit in order to minimize potential circulation, visual, and other environmental impacts. [p ] Action [p ] The City shall require the submittal of a specific plan for the area which would address the problems and opportunities related to the development of this property, including, but not limited to: [p ] (1) Traffic Circulation [p ] (2) Parking [p ] (3) Visual Impacts along Cabrillo Boulevard [p ] (4) Geologic Hazards [p ] (5) Recreational Opportunities [p ] (6) Visitor-Serving Uses [p ] (7) Mixed Uses Consisting of HRC-II and Residential [p ] At the time of review of the Specific Plan, the standards of review shall include PRC Section 30221 and 30222.[ The City shall ensure that recreational and visitor-serving uses on the western portion of the property shall not be precluded by residential uses. The eastern portion of the property shall be designated exclusively for visitor-serving uses, HRC-I. The western portion shall include approximately 11 acres west of the extension of Salsipuedes Street. The eastern portion shall include approximately 23 acres east of the extension of Salsipuedes Street. [p ] Land uses located on private lands on the western portion of the property north and immediately adjacent to the strip of publicly owned land fronting on Cabrillo Boulevard shall be limited to open space and recreational uses abutted to the north by visitor-serving and/or mixed visitor-serving/residential uses. Residential uses on this portion of the area shall not predominate other priority Coastal Act uses."
Section 30221 provides: "Oceanfront land suitable for recreational use shall be protected for recreational use and development unless present and foreseeable future demand for public or commercial recreational activities that could be accommodated on the property is already adequately provided for in the area."
As early as 1964, the General Plan of the City of Santa Barbara had contemplated a hotel conference center would be built on the property. When the LUP was prepared, however, there was some conflict between the LUP and the General Plan with regard to the particular alignment of Cabrillo Boulevard and the designations on the land use map of the General Plan. Policy 1.3 of the LUP provided: "Where there are conflicts between the policy set forth in the land use plan and those set forth in any other element of the City's existing General Plan or existing regulations, the policies of the land use plan shall take precedence."
As indicated, the LUP was adopted by the city council by resolution as revised on December 16, 1980. Appellants did not attempt to file a referendum petition against the resolution adopting the amended LUP. The LUP was submitted to the state Coastal Commission and approved by the commission on January 22, 1981.
Intervener and respondent Park Plaza Corporation then filed applications with the City of Santa Barbara for: "1. General Plan Amendment; 2. Specific Plan; 3. Rezoning; 4. Tentative subdivision map; 5. Parking modification; 6. Hotel/conference center development plan for the 23 acres of land located east of the proposed extension of Salsipuedes Street."
After public hearings on the Park Plaza Corporation's applications, the City Planning Commission on May 30, 1981, adopted resolutions recommending to the city council [189 Cal.Rptr. 553] the adoption of the amendment to the General Plan, the amendment to the zoning ordinance, and the Specific Plan pursuant to Park Plaza Corporation's applications. At a public hearing on July 14 and 15, 1981, the city council considered the recommendations. During the course of the hearing, the city attorney advised the city council and those present that the General Plan Amendment, the zoning ordinance, and the adoption of the Specific Plan were not subject to referendum. At the conclusion of the hearing, the city council approved the General Plan Amendment, the Specific Plan, rezoning, tentative subdivision map, parking modification, and development plan for a 360-room hotel with conference facilities.
The amendment to the General Plan (see Gov.Code, § 65350), adopted July 28, 1981, changed the circulation element of the General Plan in order to reaffirm the existing alignment of Cabrillo Boulevard and changed the General Plan's land use designations from "Major Public and Institutional Uses-Park" and "Hotel and Residential" to "Hotel and Residential." The Specific Plan (see Gov.Code, § 65450), also approved by resolution on July 28, 1981, was a 14-page document, "intended to provide regulatory controls that conform to the General Plan elements, Local Coastal Plan and mitigation measures that minimize any adverse environmental impacts ...." It sets standards for, inter alia, permitted uses, traffic and circulation, building setbacks, landscaping, building height, architectural design, views, signs, recreation and open space, geology and drainage, water conservation, fire and safety, noise, and energy conservation. Ordinance No. 4115, adopted August 4, 1981, changed the zoning of the property from R-1/M-1/C-2 to R-1/R-4.
On August 26, 1981, a referendum petition protesting the General Plan Amendment, Specific Plan, and zoning ordinance was submitted to the office of the city clerk. By letter dated September 2, 1981, the city clerk advised the Community East Beach Committee, the organization which submitted the petition, that based upon the advice of the city attorney that a referendum would be invalid, he would not process the petition. This action followed.
Article 13, section 1303 of the Santa Barbara City Charter reserves to the electors the powers of initiative and referendum and of recall of municipal officers, incorporating the provisions of the state Elections Code. (See Cal. Const., art. II, § 11.)
DISCUSSION
The powers of referendum and initiative apply only to legislative acts, as distinguished from executive or administrative acts. (Arnel Development Co. v. City of Costa Mesa, 28 Cal.3d 511, 516, fn. 6, 169 Cal.Rptr. 904, 620 P.2d 565.) Notwithstanding the rule that initiative and referendum provisions should be liberally construed in favor of exercise of the power, it is equally well established that acts of a local governing body which in a purely local context would otherwise be legislative and subject to referendum, such as a zoning ordinance (Arnel Development Co. v. City of Costa Mesa, supra, at p. 523, 169 Cal.Rptr. 904, 620 P.2d 565) or the adoption or amendment of a general plan (see O'Loane v. O'Rourke, 231 Cal.App.2d 774, 783, 42 Cal.Rptr. 283; Duran v. Cassidy, 28 Cal.App.3d 574, 583, 104 Cal.Rptr. 793), nevertheless are administrative and not subject to local referendum where state regulation of the subject is pervasive and the local body has been delegated authority by the state to implement the legislative policies declared by the state on a matter of statewide concern. (Associated Home Builders etc., Inc. v. City of Livermore, 18 Cal.3d 582, 596, fn. 14, 135 Cal.Rptr. 41, 557 P.2d 473; Simpson v. Hite, 36 Cal.2d 125, 129-131, 222 P.2d 225; Housing Authority v. Superior Court, 35 Cal.2d 550, 558, 559, 219 P.2d 457; Redevelopment Agency v. City of Berkeley, 80 Cal.App.3d 158, 168, 143 Cal.Rptr. 633; Walker v. City of Salinas, 56 Cal.App.3d 711, 716-718, 128 Cal.Rptr. 832; Andrews v. City of San Bernardino, 175 Cal.App.2d 459, 462, 346 P.2d [189 Cal.Rptr. 554] 457; Lockhart v. City of Bakersfield, 123 Cal.App.2d 728, 733, 267 P.2d 871.)
This is one aspect of the more general rule distinguishing legislative versus administrative action. An action is legislative " ' "if it prescribes a new policy or plan; whereas, it is administrative in its nature if it merely pursues a plan already adopted by the legislative body itself, or some power superior to it." ' " (Martin v. Smith, 184 Cal.App.2d 571, 575, 7 Cal.Rptr. 725; emphasis added.)
In Simpson v. Hite, supra, state law compelled the board of supervisors of a county to provide suitable quarters for courts. After the Board of Supervisors of Los Angeles County had designated and acquired a particular site for a court building, an initiative petition designating a different site was filed. The Supreme Court held the initiative was not permissible because "[t]he state Legislature has declared the legislative policy applicable here: that the board of supervisors shall provide suitable quarters for the municipal and superior courts.... [p ] ... Prescribing the policy and duty was the legislative act of the state; carrying out the policy by performing the duty is an administrative function delegated by the state to the local governing body ...." (Id., 36 Cal.2d at pp. 129, 130, 222 P.2d 225.) The court acknowledged authority that site selection for a public building is a legislative matter subject to initiative and referendum but distinguished it, stating: "However, in none of those cases was the court purporting to deal with a situation such as the one at bar, where the legislative policy has been expressly fixed by the state itself, and the execution of that policy has been specifically imposed by the state law on the board of supervisors as an administrative function." (Id., at p. 131, 222 P.2d 225.) In Lockhart v. City of Bakersfield, supra, 123 Cal.App.2d at pages 733-734, 267 P.2d 871, the court held that under the state Housing Authorities Law a city council acted as agent of the state in rezoning a property to permit duplexes in order to carry out its agreement with the housing authority, therefore the referendum power did not apply. Similarly, in Redevelopment Agency v. City of Berkeley, supra, 80 Cal.App.3d at pages 168, 170-171, 143 Cal.Rptr. 633, the court held that the city council having entered an agreement with the Redevelopment Agency under the state Community Redevelopment Law for a planned industrial park where residential uses would be prohibited, the voters could not enact by initiative an ordinance restoring the zoning to residential.
In the instant case the General Plan Amendment, zoning change, and adoption of Specific Plan were designed to implement the city's Land Use Plan (LUP) which was prepared as required by the Coastal Act, in conformity with the act's procedures and substantive policies, and which had been approved by the state Coastal Commission, which thus found the LUP to comply with the policies of the act. (§§ 30512, 30512.2.) The LUP having been certified, subsequent zoning ordinances and other implementing actions were required to conform with and to be adequate to carry out the provisions of the certified LUP. (§ 30513.) The voters could not, consistent with section 30513, compel the adoption of a zoning ordinance which was not in conformity with the certified LUP. (See, e.g., Redevelopment Agency v. City of Berkeley, supra, 80 Cal.App.3d at pp. 170-171, 143 Cal.Rptr. 633; see also § 30514 [amendment to certified LCP and all local implementing ordinances, etc., shall not take effect until certified by the commission].)
Appellants rely mainly upon Hughes v. City of Lincoln, 232 Cal.App.2d 741, 43 Cal.Rptr. 306, for their argument that the local referendum power is not inconsistent with the California Coastal Act. However, Hughes is easily distinguishable on its facts. There the court held that the decision whether the local water supply should be fluoridated to prevent dental caries was outside the scope of state regulations on water purity, which were construed to extend only to "[t]he traditional goals of water treatment ... purity and potability." (Id., at p. 746, 43 Cal.Rptr. 306.) The court commented, "[The state] scheme of statutory regulation does not express any state [189 Cal.Rptr. 555] policy, one way or the other, on fluoridation as a therapeutic measure. Instead, it is focused on the orthodox 'pre-fluoridation' goals of water treatment. Thus, in deciding whether or not to fluoridate, a city council acts as the legislative exponent of local policy, not as the administrative instrumentality of state policy." (Id., at p. 748, 43 Cal.Rptr. 306.) The Coastal Act, on the other hand, expressly declares the state substantive goals and policies by which the adequacy of LCP's are judged. (§§ 30001.5, 30200 et seq.)
Appellants point out that the authority of the state commission is limited and that several provisions of the Coastal Act expressly declare that the precise content of the LCP is to be determined by the local government. Thus, in section 30004, subdivision (a), the Legislature found that "[t]o achieve maximum responsiveness to local conditions, accountability, and public accessibility, it is necessary to rely heavily on local government and local land use planning procedures and enforcement." Section 30500, subdivision (c), states that "[t]he precise content of each local coastal program shall be determined by the local government, consistent with Section 30501, in full consultation with the commission and with full public participation." Under section 30512.2, in reviewing a local government's LUP, "the commission is not authorized by any provision of this division to diminish or abridge the authority of a local government to adopt and establish, by ordinance, the precise content of its land use plan" (subd. (a)), and "[t]he commission shall require conformance with the policies and requirements of Chapter 3 (commencing with Section 30200) only to the extent necessary to achieve the basic state goals specified in Section 30001.5." (Subd. (b).) Section 30005 reserves specified rights to local governments, the Attorney General, and private persons. (See also § 30005.5.) Appellants also argue that the term "local government" as used in the act (§ 30109) should be liberally construed to include not only the local legislative body but also the electorate acting under the power of intiative and referendum.
Section 30005 provides: "No provision of this division is a limitation on any of the following: [p] (a) Except as otherwise limited by state law, on the power of a city or county or city and county to adopt and enforce additional regulations, not in conflict with this act, imposing further conditions, restrictions, or limitations with respect to any land or water use or other activity which might adversely affect the resources of the coastal zone. [p] (b) On the power of any city or county or city and county to declare, prohibit, and abate nuisances. [p] (c) On the power of the Attorney General to bring an action in the name of the people of the state to enjoin any waste or pollution of the resources of the coastal zone or any nuisance. [p] (d) On the right of any person to maintain an appropriate action for relief against a private nuisance or for any other private relief."
From all this, appellants conclude that the wide discretion expressly left by the act to local governments to determine the content of the LCP shows that the Legislature intended the local power of initiative and referendum to be preserved. We do not agree. The fact that the local government has wide discretion is not determinative, for the real question is whether that discretion should be construed as legislative or administrative in character for purposes of the applicability of the referendum power. For instance, in Simpson v. Hite, supra, 36 Cal.2d 125, 222 P.2d 225, the discretion in the board of supervisors to select a site for a court building was very broad, since the state law provided no standard other than the board shall provide "suitable quarters." (Id., at p. 130, 222 P.2d 225.) Nevertheless, the Supreme Court held that the policy and duty had been declared by the legislative act of the state and that the board was performing an administrative function to carry out that policy. In the Coastal Act, on the other hand, the state regulatory scheme is far more pervasive, the state having expressly declared the statewide interest in the subject, mandated that local governments prepare an LCP, prescribed the procedures and time limits for such programs, and prescribed the basic goals of the state and the specific policies by which the adequacy of the LCP's are judged by a state coastal commission. Although "[a] [189 Cal.Rptr. 556] great amount of planning and management authority ... was delegated to the various local government units," that authority is exercised "within the standards and criteria set by the act." (California Coastal Com. v. Quanta Investment Corp., supra, 113 Cal.App.3d 579, 587, 170 Cal.Rptr. 263. See § 30004, subd. (b) [legislative finding that continued state coastal planning and management through a state coastal commission is also necessary to insure conformity with the act's provisions].) Although we liberally construe the powers of initiative and referendum, we are also required to liberally construe the provisions of the Coastal Act to accomplish its purposes and objectives. (§ 30009.) Considering the purposes and the nature of the comprehensive regulatory scheme, we conclude that the Legislature did not intend the local power of referendum to apply.
The Coastal Act does not specifically refer to the referendum and initiative powers. Despite the fact that section 30005 specifically reserves enumerated powers and rights to local governments (fn. 5, ante), referendum and initiative are not mentioned among them. This may be contrasted to the Community Redevelopment Law where the Legislature specifically reserved the power of local referendum on the issue of the declaration of need for a redevelopment agency. (Health & Saf.Code, § 33101; Gibbs v. City of Napa, 59 Cal.App.3d 148, 153-154, 130 Cal.Rptr. 382.) In an early case under the Housing Authorities Law, the court in Lockhart v. City of Bakersfield, supra, 123 Cal.App.2d at page 734, 267 P.2d 871, commented, "In the instant case the statute does not provide that zoning or rezoning ordinances or resolutions adopted pursuant to the state housing laws are subject to the referendum provisions of the city charter and such provisions are therefore inapplicable."
Moreover, consideration of the manner in which LCP's are prepared under the statute shows that it would be unworkable to proceed by way of the initiative and referendum processes. Recognizing the complexity of preparing of an LCP complying with the act, the Legislature provided: "The precise content of each local coastal program shall be determined by the local government, consistent with Section 30501, in full consultation with the commission and with full public participation." (§ 30500, subd. (c), emphasis added.) As required by section 30501, the commission has developed comprehensive regulations as to how the staff of a local government is to make the necessary studies and prepare its LCP in consultation with the commission. (See, e.g., Cal.Admin.Code, tit. 14, §§ 13503, 13516, 13517.) The act specifies time limits for the preparation of the LCP. (§§ 30517, 30517.5, 30517.6.) In the act itself, the Legislature declared it was essential that future developments be "carefully planned and developed consistent with the policies of this division ...." (§ 30001, subd. (d), emphasis added.) One of the "basic goals of the state" is to "[e]ncourage state and local initiatives and cooperation in preparing procedures to implement coordinated planning and development" in the coastal zone. (§ 30001.5, subd. (e), emphasis added.)
The electoral process is ill-suited to the careful preparation of an LCP in conformity with the policies of the act and with the careful planning and coordination mandated by the state as a basic goal of the legislation. (Simpson v. Hite, supra, 36 Cal.2d at pp. 134-135, 222 P.2d 225.) An alternative program imposed by the electoral process would lack the "full consultation with the commission" required by section 30500, subdivision (c). Moreover, the referendum process could be used by a small group of electors to nullify, impede or frustrate the attempt by the local governing body to comply with the mandate of state law to prepare an LCP, frustrating the state legislative policy. (Simpson v. Hite, supra, at p. 133, 222 P.2d 225.)
Finally, the act's specific provisions concerning public participation are persuasive of the act's implicit recognition that the initiative and referendum processes would be inconsistent with the coordinated planning required by the act. Section 30006 declares: "The Legislature further finds and declares that the public has a right to [189 Cal.Rptr. 557] fully participate in decisions affecting coastal planning, conservation, and development; that achievement of sound coastal conservation and development is dependent upon public understanding and support; and that the continuing planning and implementation of programs for coastal conservation and development should include the widest opportunity for public participation." Section 30500, subdivision (c), states that the precise content of the LCP is determined by the local government "in full consultation with the commission and with full public participation." Section 30503 provides: "During the preparation, approval, certification, and amendment of any local coastal program, the public, as well as all affected governmental agencies, including special districts, shall be provided maximum opportunities to participate. Prior to submission of a local coastal program for approval, local governments shall hold a public hearing or hearings on that portion of the program which has not been subjected to public hearings within four years of such submission." Section 30339, subdivision (d), provides that the state commission shall "Recommend to any local government preparing or implementing a local coastal program and to any state agency that is carrying out duties or responsibilities pursuant to this division, additional measures to assure open consideration and more effective public participation in its programs or activities." Accordingly, the state commission has issued a number of regulations requiring the local government to establish maximum opportunities for participation by the public in the preparation of the LCP. (See, e.g., Cal.Admin.Code, tit. 14, §§ 13505, subds. (b)(4), (d)(4), 13515, 13519, subd. (a).) These include such procedures as notice of hearings, opportunities for advance review of drafts, and public comments, to be forwarded to the state commission.
However, neither the statutes nor the commission regulations on public "participation" make any reference to the powers of initiative and referendum. The Legislature intended to preserve and encourage those forms of public participation specified by the act and regulations which are consistent with the goals of the act of assuring an orderly and coordinated planning process in consultation with the commission. In the absence of any mention or reservation of the local power of referendum we cannot interpret the act's references to public participation to include the referendum power. (See Simpson v. Hite, supra, 36 Cal.2d at pp. 134-135, 222 P.2d 225; Lockhart v. City of Bakersfield, supra, 123 Cal.App.2d at p. 734, 267 P.2d 871.) The trial court properly denied the petition for writ of mandate.
Appellants finally contend that the trial court erred in denying them a continuance for additional briefing, and that the court should have granted their motion for new trial on grounds of surprise and denial of a fair trial. Appellants had wanted to confine the proceedings to the narrow issue of whether the city clerk should be compelled to examine the validity of signatures on the referendum petition, and to put off until some later date a decision whether the actions protested in the referendum petition were subject to referendum. However, the trial court noted that it was apparent from the history of the dispute that there could be no misunderstanding "as to the ultimate issue in this mandate proceeding, i.e., whether an exercise of local legislative power by the city council is involved." In any event, there is no reason now for a new trial. The issue is one of law, not evidence, and has now been fully briefed, both here and at the time of the motion for new trial. (Subriar v. City of Bakersfield, 59 Cal.App.3d 175, 212, 130 Cal.Rptr. 853.)
The judgment is affirmed.
HASTINGS, J., concurs.
STEPHENS, Acting Presiding Justice, dissenting.
I dissent. It is my view that, despite the general overview of the state through coastal controls, the case of Arnel Development Co. v. City of Costa Mesa, 28 Cal.3d 511, 169 Cal.Rptr. 904, 620 P.2d 565, is dispositive of the issue here. Under Arnel, the actions by the city council were legislative in nature and referendum was appropriate. The argument that a referendum could not compel a rezoning in contravention to the land use is but a straw man contention. The referendum here sought does not fail for that reason.
[189 Cal.Rptr. 558]In addition, it is my opinion that the main opinion, in its declaration that "the powers of initiative and referendum" are prohibited by the Coastal Commission laws, is in error. Certainly no greater "participation" by the public can be imagined than that generated by the initiative or referendum. 1
I would reverse the judgment.
Section 30222 provides: "The use of private lands suitable for visitor-serving commercial recreational facilities designed to enhance public opportunities for coastal recreation shall have priority over private residential, general industrial, or general commercial development, but not over agriculture or coastal-dependent industry."
See also section 30210, which states: "In carrying out the requirement of Section 4 of Article X of the California Constitution, maximum access, which shall be conspicuously posted, and recreational opportunities shall be provided for all the people consistent with public safety needs and the need to protect public rights, rights of private property owners, and natural resource areas from overuse."