Opinion
Rehearing Granted Sept. 29, 1986.
Previously published at 184 Cal.App.3d 1546 Ronald A. Zumbrun, Darlene E. Ruiz, Robert K. Best, and Thomas W. Birmingham, Sacramento, for interveners and appellants.
Berliner & Spiller, Harold A. Berliner and Steven T. Spiller, Nevada City, for plaintiffs and respondents.
John K. Van de Kamp, Atty. Gen., Andrea Sheridan Ordin and Theodora Berger, Asst. Attys. Gen., and David W. Hamilton, Deputy Atty. Gen., as amici curiae on behalf of plaintiffs and respondents.
James P. Lang, Dist. Atty., and Nelson D. Buck Asst. Dist. Atty., for defendants and respondents.
SIMS, Associate Justice.
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 and are therefore invalid. BACKGROUND
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."
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.)
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 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 appeal from the judgment. On appeal, the Attorney General, appearing as amicus curiae, has submitted a brief and argued orally in support of plaintiffs and in opposition to interveners. The defendant county maintains a neutral stance in these proceedings.
I
Standing 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
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
A controversy is "ripe" for judicial resolution when " 'it has reached, but 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
The Ordinance Must Be Construed to Apply Only to the County and Subordinate Units of Government; It Does Not Attempt to Restrain the Legislature
In California, counties derive their powers from the state Constitution (art. XI) and from the Legislature. 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." A county ordinance in conflict with state law is therefore void. (Chavez v. Sargent (1959) 52 Cal.2d 162, 176, 339 P.2d 801; Bruce v. City of Alameda (1985) 166 Cal.App.3d 18, 212 Cal.Rptr. 304; see People ex rel. Duekmejian v. County of Mendocino (1984) 36 Cal.3d 476, 484, 204 Cal.Rptr. 897, 683 P.2d 1150.) Since a The trial court concluded the 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.
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.)
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.
The initiative power as expressed in the provisions of the ordinance is to be construed liberally to promote the democratic process. (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 (1978) 22 Cal.3d 208, 219, 149 Cal.Rptr. 239, 583 P.2d 1281.) A strong presumption of constitutionality attaches to the exercise of the power and the courts are required to resolve any reasonable doubts in its favor. (Brosnahan, supra, 32 Cal.3d at p. 241, 186 Cal.Rptr. 30, 651 P.2d 274; Associated Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, 604-605, 135 Cal.Rptr. 41, 557 P.2d 473.)
In ascertaining the scope of an initiative measure, the controlling principle is the intent of the electorate. (See 58 Cal.Jur.3d, Statutes, §§ 82, 83, pp. 430-432.) The courts turn first to the natural and ordinary meaning of the words used (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) and, if such language is facially clear and unambiguous, generally do not resort to other interpretative aids. (See Board of Supervisors v. Lonergan (1980) 27 Cal.3d 855, 866, 167 Cal.Rptr. 820, 616 P.2d 802; People v. Belleci (1979) 24 Cal.3d 879, 884, 157 Cal.Rptr. 503, 598 P.2d 473.) Occasionally, however, literal language is disregarded to avoid absurd results and to fulfill the apparent intent of the voters. (Amador, supra, 22 Cal.3d at p. 245, 149 Cal.Rptr. 239, 583 P.2d 1281; Belleci, supra, at p. 884, 157 Cal.Rptr. 503, 598 P.2d 473; People v. Davis (1978) 85 Cal.App.3d 916, 924, 149 Cal.Rptr. 777.) As an aid in discerning the probable intent of uncertain language, it is appropriate to consider materials presented to the electorate in connection with the proposed initiative, such as the ballot summary, arguments, and analysis. (Amador, supra, 22 Cal.3d at pp. 245-246, 149 Cal.Rptr. 239, 583 P.2d 1281.)
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. 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," tends 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 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
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 clearly ultra vires purpose of restraining state government. (Cf. People v. Smith, supra, 34 Cal.3d at p. 262, 193 Cal.Rptr. 692, 667 P.2d 149.) The 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.
III
A
Paragraphs (1), (2), (5) and (10) of the Ordinance on their Face Conflict with State-Mandated Requirements for Local General Plans and are Therefore Void
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.
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 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 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, as every experienced developer well knows, "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) and (10) of the ordinance are set forth in the margin. Each of these paragraphs constitutes an effective repeal of the existing Tehama County General Plan or portions of it (see Duran v. Cassidy (1972) 28 Cal.App.3d 574, 582, 104 Cal.Rptr. 793) and a prohibition upon the future adoption and enforcement of a general plan meeting the requirements of state law. These paragraphs therefore conflict directly with the county's state-mandated duties to adopt a general plan and to enforce it in the ways previously described.
These paragraphs provide as follows:
The court takes judicial notice of this plan. (Evid. Code, §§ 452, subd. (g), 459.)
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 provisions is not ambiguous. For the most part, they Even assuming for purposes of argument these provisions of the ordinance are somehow ambiguous, then it is appropriate to consider the intent of the electorate in enacting the initiative. (Lonergan, supra, 27 Cal.3d at p. 866, 167 Cal.Rptr. 820, 583 P.2d 1281.) Here, indicia of such intent are found in the statement of reasons for the initiative published in connection with the circulation of the initiative petition among the voters and the ballot argument supporting the initiative.
These expressions of legislative intent merely confirm what the enumerated provisions of the ordinance suggest on their face: the ordinance is aimed at the elimination of land use planning by Tehama County. The validity of the ordinance is predicated upon a "natural right" to acquire, own, deal with, and use property as the owner chooses. The right asserted is superior to constitutions or to the police power of government. Governmental restrictions on private property are to be outlawed, so that pure economics will regulate the use of land. The county's general plan is specifically described as "a failure." These statements of legislative intent demonstrate clearly that the enumerated provisions of the ordinance are intended to prevent the county from enacting ordinances or resolutions or otherwise imposing restrictions on the use of private property in the ways indicated.
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, while the courts have an obligation to interpret an ambiguous initiative ordinance to serve its intent, they have no authority to emasculate its intent in order to save it from itself. Here, 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, where each judge has, by oath of office, sworn to uphold the very constitution and laws the ordinance would disregard.
Since the enumerated provisions of the ordinance on their face conflict with general law, the only remaining question is whether any of them can be saved by principles of severability. "The rule on severability is set forth in In re Blaney (1947) 30 Cal.2d 643, 655 [184 P.2d 892]: 'But if the statute is not severable, then the void part taints the remainder and the whole becomes a nullity. It is also true that in considering the issue of severability, it must be recognized that the general presumption of constitutionality, fortified by the express statement of a severability clause, normally calls for sustaining any valid portion of a statute unconstitutional in part. This is possible and proper where the language of the statute is mechanically severable, that is, where the valid and invalid parts can be separated by paragraph, In determining whether a partially valid enactment may be enforced as to the remainder, a declaration of severability in the enactment, although not conclusive, is persuasive evidence of the enacting body's intent. (Schenley Affiliated Brands Corp. v. Kirby (1971) 21 Cal.App.3d 177, 199, 98 Cal.Rptr. 609.) Unlike many common severability clauses, the clause in the ordinance before us does not state that if application of the ordinance is invalid as to any person or circumstance, then the ordinance shall be given effect where application is lawful. (Compare In re Lance W., supra, 37 Cal.3d at p. 890, fn. 12, 210 Cal.Rptr. 631, 593 P.2d 200; Mulkey v. Reitman (1966) 64 Cal.2d 529, 543, 50 Cal.Rptr. 881, 413 P.2d 825; In re Blaney (1947) 30 Cal.2d 643, 653, 184 P.2d 892; People's Advocate, Inc. v. Superior Court, supra, 181 Cal.App.3d at p. 331, fn. 16, 226 Cal.Rptr. 640.) The instant clause contemplates only mechanical severance, an intent to which our opinion will be faithful.
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."
With respect to each of the subject paragraphs of the ordinance plainly in conflict with general plan requirements, validity cannot be accomplished by grammatical mechanical severance, i.e., by pruning words, clauses, or phrases from the paragraph. If these provisions are to survive, they must be applied in some situations and not in others. However, that result would violate the ordinance's own severability clause calling for mechanical severance. Moreover, where the application of an enactment is invalid in certain situations, it will not be enforced in other situations if enforcement entails the danger of an uncertain or vague application of the enactment. (Mulkey v. Reitman, supra, 64 Cal.2d at p. 543, 50 Cal.Rptr. 881, 413 P.2d 825.) We would not inflict upon Tehama County the uncertainty of whether the subject provisions of the ordinance might lawfully apply to unspecified land use decisions. In our view, that result would likely cause the stultification of land development by clogging the courts with lawsuits contesting the possible application of these provisions. We therefore conclude that the partial application of these provisions would impermissibly result in their vague and uncertain application. (Mulkey v. Reitman, supra, 64 Cal.2d at pp. 543-545, 50 Cal.Rptr. 881, 413 P.2d 825.)
Paragraphs (1), (2), (5) and (10) conflict directly with mandates of state law 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. 176, 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.)
B
Paragraphs (3) and (7) Remain Valid
These paragraphs provide:
Paragraphs (3) and (7) are logically taken together. Paragraph (3) prohibits The Attorney General asserts there is a direct conflict with state open-space policy ( §§ 65561-65564) created by paragraph (7) of the ordinance. However, the provision 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. To be sure, under current law, in many instances the county could require the dedication of private property for public roads, or impose the described restrictions on private property, by exercising the police power without payment to the property owner. (See, e.g., 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.
It may be that, at some time in the future, enforcement of paragraphs (3) or (7) could, as a practical matter, nullify general plan objectives set forth in the Government Code. However, at this juncture, the worry is premature. Plaintiffs have tendered a facial challenge to the ordinance; whether 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.)
Nor do these paragraphs on their 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; ..." 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.) Paragraphs (3) and (7) represent the proper use of the initiative power to control local legislative acts. (See Yost v. Thomas (1984) 36 Cal.3d 561, 573, 574, 205 Cal.Rptr. 801, 685 P.2d 1152.) Consequently, these paragraphs are facially valid.
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.)
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.)
There remains only the question whether paragraphs (3) and (7) can be mechanically severed from the provisions of the ordinance previously invalidated. " '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 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 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 (1979) 23 Cal.3d 296, 320, 152 Cal.Rptr. 903, 591 P.2d 1.)
Here, although related by their concern with governmental controls on private property, paragraphs (3) and (7) focus on topics distinct from those in the invalid paragraphs. They are not dependent upon the invalid paragraphs for their coherence or aim. It is difficult to imagine why one who voted in favor of the initiative would object to the enforcement of each paragraph that is facially lawful. The independence of the remaining paragraphs is sufficient to justify severability in accordance with the ordinance's severability clause (fn. 5, ante ). (See 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 facially valid paragraph shall therefore be severed from the diseased paragraphs and shall survive. The first survivors are paragraphs (3) and (7).
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.
C
As Construed in Accordance with the Intent of the Voters Paragraphs (4) and (6) are Valid
These paragraphs provide:
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.
The Attorney General argues paragraph (4) conflicts directly with state-mandated Because of the announced caveat in the ballot argument, these provisions may not be construed as limiting or repealing any building codes or ordinances based on health or safety considerations. For reasons previously stated, these provisions cannot nullify the land use element of the general plan to the extent it may provide for various uses of land ranging from agricultural to commercial. Consequently, the provisions do not allow an owner of private property to build whatever he wants wherever he wants.
Thus, for example, these paragraphs could not affect local codes requiring fences of certain specification to be built around swimming pools for the protection of children.
Thus, for example, an owner of property cannot rely on these paragraphs to build a commercial building on land designated for agricultural use in the general plan.
However, "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.' (County of Los Angeles v. Legg (1936) 5 Cal.2d 349, 353 [55 P.2d 206]; People v. Davis (1968) 68 Cal.2d 481, 483-484 [67 Cal.Rptr. 547, 439 P.2d 651]; San Francisco Unified School Dist. v. Johnson (1971) 3 Cal.3d 937, 948 [92 Cal.Rptr. 309, 479 P.2d 669].) Consequently, '[i]f feasible within bounds set by their words and purposes, statutes should be construed to preserve their constitutionality.' (Conservatorship of Hofferber (1980) 28 Cal.3d 161, 175 [167 Cal.Rptr. 854, 616 P.2d 836].)" (Metromedia, Inc. v. City of San Diego (1982) 32 Cal.3d 180, 186, 185 Cal.Rptr. 260, 649 P.2d 902.) Paragraphs (4) and (6) are subject to a reasonable saving interpretation. (See Cranston v. City of Richmond (1985) 40 Cal.3d 755, 768-769, 221 Cal.Rptr. 779, 710 P.2d 845; San Francisco Unified School Dist. v. Johnson (1971) 3 Cal.3d 937, 942, 92 Cal.Rptr. 309, 479 P.2d 669.) No state law requires counties to impose requirements or restrictions on the aesthetic design of buildings or structures. Paragraphs (4) and (6) may therefore be construed to mean that the county and its subordinate units cannot dictate the design of buildings or fences to the extent the question of design is one purely of aesthetics. Construed in this manner, paragraphs (4) and (6) shall survive.
D
Construed as Preventing the County from Unlawfully Interfering with the "Vested Rights" of Citizens, Paragraph (8) is valid
Paragraph (8) provides: "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."
Paragraph (8) may be read as attempting to prohibit the county from imposing any restrictions upon any use of privately owned property existing at the time of passage of the ordinance. Read literally, the paragraph purports to stop the county from exercising its police power in lawful ways as commanded by the Legislature. (See Griffin Development Co. v. City of Oxnard (1985) 39 Cal.3d 256, 264, 217 Cal.Rptr. 1, 703 P.2d 339.) That it cannot do.
However, the problem with the paragraph is its overbreadth. Included in the paragraph's prohibition is a clearly permissible purpose: to prohibit the county from enacting retroactive land-use restrictions But is it appropriate to construe the broad language of paragraph (8) to so limit its application? We think it is. California cases have long recognized that the courts should place a narrowing construction on overbroad statutory language if the resulting interpretation can save the statute from constitutional annihilation and also provide reasonable certainty of application. " 'All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language, which would avoid results of this character....' (United States v. Kirby (1868) 74 U.S. (7 Wall.) 482, 486-487 [19 L.Ed.2d 278, 279]; accord, People v. Oliver (1961) 55 Cal.2d 761, 767 [12 Cal.Rptr. 865, 361 P.2d 593], and cases cited.)" (People v. Daniels (1969) 71 Cal.2d 1119, 1130, 80 Cal.Rptr. 897, 459 P.2d 225.)
We shall therefore construe paragraph (8) to prohibit the county and its subordinate units of government from imposing any restrictions upon any use of privately owned real property which would unlawfully interfere with citizens' "vested rights" as defined by the courts of this state or the United States Supreme Court. So construed, paragraph (8) will survive.
E
Paragraph (9) Conflicts with State Statutory Requirements for Hearings and is Therefore Invalid
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 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."
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. However, the Legislature has expressed a policy and intent 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 not severable and are therefore void.
Paragraph (9) also effectively limits the method of giving notice of hearings to publication in a newspaper. This portion of paragraph (9) conflicts 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
One has to read the publication in order to object in order to obtain a hearing.
F
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."
Construed as applicable only to the county, paragraph (11) prohibits the county or its subordinate units from regulating water and from metering private water wells.
The Legislature has provided a comprehensive system for the development, allocation and administrative regulation of appropriative water rights. (Environmental Defense Fund, Inc. v. East Bay Mun. Utility Dist. (1980) 26 Cal.3d 183, 195, 161 Cal.Rptr. 466, 605 P.2d 1; see also Baldwin Park County Water Dist. v. County of Los Angeles (1962) 208 Cal.App.2d 87, 97, 25 Cal.Rptr. 167.) Furthermore, exclusive jurisdiction over the granting and administration of appropriative water rights has been delegated to the State Water Resources Control Board. (Environmental Defense Fund, supra, 26 Cal.3d at p. 195, 161 Cal.Rptr. 466, 605 P.2d 1; Wat. Code, §§ 174, 1050.) The first sentence of paragraph 11 has the effect of restraining the county from certain local action with respect to water rights in a manner entirely consistent with the exclusive power vested in the State Water Resources Control Board. While paragraph 11 may contain a redundancy, that is not the measure of constitutional infirmity.
The second sentence of paragraph 11, restricting the metering of private wells, appears not to conflict with any mandate of state law. Therefore, paragraph 11 will survive in its entirety.
G
Paragraphs (12), (13), (14) and (15) are Valid
These paragraphs provide as follows:
Construed as applicable to the county and its subordinate units of government, and to legislative enactments of those bodies, these paragraphs survive. Paragraph (15) obviously applies only to the other surviving paragraphs.
H
Summary
The box score on the initiative ordinance stands as follows:
Paragraphs (1), (2), (5), (9) and (10) are void.
Construed as applicable only to the county and its subordinate units of government, the remainder of the paragraphs of the ordinance are valid.
Paragraphs (4) and (6) prohibit imposition of purely aesthetic requirements related to the type or size of private buildings or the size or shape of fencing. The provisions do not affect the general plan nor building codes nor health and safety ordinances.
Paragraph (8) prohibits the county and its subordinate units of government from enacting land use restrictions that unlawfully interfere with citizens' "vested rights"; the paragraph has no broader effect. IV
Attorney Fees, Sanctions and Costs
Plaintiffs seek attorney fees against interveners under the private attorney general doctrine (Code Civ.Proc., § 1021.5), but have waived entitlement to an award of fees against the county. Since the trial court has apparently not yet ruled on plaintiff's 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.)
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.)
Under the circumstances, the attorney fee award sought by plaintiffs is inappropriate. Interveners entered this case by invitation of the court after the 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.
Plaintiffs also 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 also denied.
Interveners also seek attorney 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 the county's burden of defending the ordinance, an award of fees against the county, but not against plaintiffs, is appropriate. It is immaterial that interveners did not score a shutout. Their partial victory entitles them to "an appropriate portion" of their total attorney fees. (Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 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 attorney fees incurred on appeal against the county in accordance with the foregoing views. (Schoolcraft v. Ross, supra, 81 Cal.App.3d at pp. 82-83, 146 Cal.Rptr. 57.)
Finally, interveners request sanctions against plaintiffs for bringing a frivolous motion for attorney fees. However, since plaintiffs partially prevailed on the merits,
Plaintiffs and the 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 the 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 paragraphs (1), (2), (5), (9) and (10) 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 attorney fees is denied. All requests for sanctions are denied. Interveners are awarded attorney 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.
PUGLIA, P.J., concurs.
CARR, Associate Justice, dissenting.
I respectfully dissent. I agree with the trial court 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 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 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 Tehama 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 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 Government 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 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 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, 156 Cal.Rptr. 718, 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.
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.
"(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."
"(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."
"(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."
"(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."
Here, funds spent for public roads obviously serve a public purpose. Similarly, 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 paragraphs (3) and (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.
"(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."
"(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."