HomeMy WebLinkAbout1977-02-07; City Council; 3625-1 Exhibit; EXHIBIT TO AB 3625-1 - AMICUS CURIAE BRIEF CARLSBAD COMMUNITY CAUSE RE: PERMIT CLEARANCE FOR ENCINA 5 AND SMOKESTACK SP 144B<
SCHULNAN & SCHULMAN ATTORNEYS AT LAW
SAN DIEGO, CA 92101 600 B STREET - SUITE 1310 ---
Tel: 233 0303
Attorneys for League of Women Voters of San Dieguito
IN THE SUPREME COURT OF THE
STATE OF CALIFORNIA
! CARLSBAD COMMUNITY CAUSE, et. al.
Petitioners, 1
)
vs . ) - ) ROBERT FUZEE, et, al, ) Civil No.
)
)
an d )
) CITY OF CARLSBAD, et. al. 1
) Defendants, )
) and ) 1
SAN DIEGO GAS & ELECTRIC CO. ) et. al. 1
) Defendants )
i
Respondents ) BRIEF OF AMICUS CURIAE
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4, . Page TABLE OF CONTENTS
STATEMENT OF THE CASE 2. *i ............................
STATEMENT OF FACTS ............................... 3.
ARGUMENT :
I. THE ISSUE TO BE DISCUSSED BY AMICUS CURIAE .................................. 5.
11. WESTERN POLITICAL HISTORY ESTABLISHES THE PEOPLE AS THE ULTIMATE SOURCE OF POLITICAL POWER .......................... 6.
A. DIRECT DEMOCRACY HAS ITS ROOTS IMPLANTED IN GREEK
HISTORY ......................... 6.
B. THE REFERENDUM PROCESS REPRESENTS A MORE LIMITED CONCEPT OF DIRECT DENOCRACY . AS PRACTICED IN THE UNITED
7 STATES .......................... 7.
. C. THE REFERENDUM PROCESS HAS
r LONG BEEN UTILIZED IN CALIFORNIA AT ALL LEVELS
OF GOVERNMENT .................... 8.
111. IT IS FUNDAMENTAL THAT THE POWER OF
REFERENDUM DERIVES FROM THE PEOPLE ....... 10.
IV. ELECTION CODE PROVISIONS RELATING TO REFERENDUM PROCEDURES SHOULD BE CONSTRUED WITH REGARD TO CONSTITUTIONAL
AND HISTORICAL ORIGINS .................. 10.
V. IT IS FUNDAMENTAL THAT VOTING RIGHTS
ARE TO BE ZEALOUSLY SAFEGUARDED ......... 11.
A. THE COURTS HAVE CONSISTENTLY STRUCK DOWN LAWS INFRINGING
ON THE RIGHT TO VOTE ............ 11.
B. THE RIGHT TO VOTE OUTWEIGHS THE RIGHT TO BE FREE FROM RACIALLY DISCRIMINATORY EFFECTS OF THAT VOTE ............................ 12.
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VI. A PERNICIOUS PRECEDENT WILL BE
ESTABLISHED IF CITY OFFICIALS ARE PERMITTED TO EVADE PERFORMANCE OF THEIR MINISTERIAL DUTIES.. 13.
Y
..............
A. STATUTORY MGUAGE MANDATES CITY OFFICIALS PLACE THE ISSUE BEFORE THE ELECTROUTE ..... 13.
B. CASE LAW INDICATES ONLY PATENT INVALIDITY OR UNQUESTIONABLE UNCONSTITUTIONALITY PERMITS JUDICIAL INTERVENTION PRIOR TO A VOTE BY THE ELECTORATE. ..... 14.
C. JUDICIAL CONTRADICTION OF EXISTING STATUTES AND CASE LAW WILL ESTABLISH A TREND ENCOURAGING ENCROACHMENT UPON
THE REFERENDUM PROCESS .......... 16.
VII. PUBLIC OFFICIALS HAVE ONLY SUCH POWERS AS ARE CONFERRED UPON THEM BY LAW......... 17. * -
VIII.THE DOCTRINE OF SEPARATION OF POWERS INDICATES THE COURT WILL BE INTERFER- ING WITH THE LEGISLATIVE PROCESS IF IT FAILS TO ISSUE THE WRIT OF MANDATE ....... 19.
A. DOCTRINE OF SEPARATION OF POWERS
.
IS BASIC TO OUR SYSTEM OF GOVERNMENT ...................... 19.
B. THE UNITED STATES SUPREME COURT HAS HELD THE PEOPLE ACT AS LEGISLATORS IN THE REFERENDUM PROCESS ......................... 20.
C, FAILURE TO ISSUE A WRIT OF
MANDAMUS IS EQUIVALENT TO A COURT GRANTING AN INJUNCTION PREVENTING PUBLIC OFFICIALS FROM EXECUTING THEIR DUTIES ...... 20.
D. CASE LAW SUSTAINS THE PROPOSITION THAT THE COURT WOULD BE UNDULY INTEFERING WITH THE LEGISLATIVE PROCESS IF IT FAILS TO ISSUE THE WRIT OF MANDAMUS .................. 21.
e
E. IN THE REFERENDUM PROCESS, THE ELECTORATE ACTS AS THOUGH IT
MERAL LEGISLATU RE................ 21-22. b. WERE THE SECOND BODY IN A BICA-
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Page.
22.
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IX. THE ISSUE IS NOT YET "RIPE" FOR JUDICIAL .............. Y DETERMINATION ON THE MERITS
X. IT IS FUNDAMENTAL THAT REFERENDUM PROVISIONS ARE TO BE LIBERALLY CONSTRUED ................................ 23.
XI. THERE IS NO DISTINCTION BETWEEN INITIATIVE AND REFERENDUM WHEN APPLYING JUDICIALLY
ENUNCIATED TESTS 25. .........................
XII. THE LEGISLATIVE ADMINISTRATIVE DISTINC-
TION IS AN AMORPHOUS DICHOTOMY WHICH
SHOULD BE CONSIDERED WITH REGARD TO THE OVER-RIDING PURPOSE AND HISTORY OF THE
REFERENDUM PROCESS 26.
A. WHILE ONLY LEGISLATIVE ACTIONS
.......................
ARE SUBJECT TO THE REFERENDUM PROCESS, THE COURT SHOULD EXAMINE
TIONS IN APPLYING THIS TEST 26.
THE OVER-RIDING POLICY CONSIDERA- .........
f B. THE ACTION OF THE CARLSBAD CITY COUNCIL IS LEGISLATIVE IN CHARACTER
t AND SUBJECT TO REFEREND UM........... 27.
XIII. IT IS IMPROPER TO "WEIGH THE HARDSHIPS" IN A MANDAMUS PROCEEDING. EVEN IF SUCH A TEST WERE APPLICABLE, VOTING RIGHTS
WOULD CLEARLY PREVAIL OVER OTHER
CONSIDERATIONS 28. ..........................
XIV. CONCLUSION.
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4- TABLE OF AUTHORITIES
r Page
..r CASES :
American Distilling Co. v. City Council of
Sausalito, 34 Cal. 2d . 660; 213 P. 2d . 704 -(-imjT...........*....................*.. .---..-..---- 18.
Atlas Hotels, Inc. v. Acker, 230 Cal. App. 2d. 658
660-661, 41 Cal. Rptr. 223 (1964) .......... .-***..'.**' 24.
Avery v. Midland County, 390 U.S. 477 (1968).. .......... 12.
Baker v. Carr, 369 U.S. 186 (1962). ..................... 11.
234, 481 P. 2d. 242........................ -.*.-..--.--- 19.
Bixby v. Pierno, 4 Cal. 3d 130 (1971) 92 Cal. Rptr.
Blatter v. Farrell, 42 Cal. 2d 804, 809
207 P. 2d 481 (1954).................................... 24.
Bruce v. Gregory, 65 Cal. 2d 666, 671, 56 Cal. Rptr. . ........... 265, 423 P. 2d 193 (1967)................... 29.
California Water & Telephone Co. v. Los Angeles,
253 CaLApp. 2d 16, 22 (1967).......................... 22.
.*-..*.------ 12.
I
6
....
Carrington v. Rash, 380 U.S. 89 (1965)
City and County of San Francisco v. Cooper, 13 Cal. 3d 898 913
County of Los Angeles v. Superior Court, 13 Cal. 3d. 721, 726 Fn. 5 (1975), 119 Cal. Rptr. 631, 532 P.
Dowel1 v. Superior Court, 47 Cal. 2d 483, 486-487,
Dunn v. Blumstein, 405 U.S. 330 (1972)...................12.
Duran v. Cassidy, 28 Cal. App. 3d 581, 104 Cal. Rptr.
793 (1972)........ .......................................15, 26
Dye v. Council of City of Compton 80 Cal. App. 2d.
486,490, 182 P. 2d 623 (1947).............,..............24, 25
74-2563, June 21, 1976, CCH at B 3304....................10,20.
Evans v. Cornman, 398 U.S. 419 (1970)....,.,,.,..........12.
Farley v. Healey, 67 Cal. 2d. 325, 431 P. 2d. 650(1967)...14
'ai. Rptr. j LLU c 7 ill. / (W2) j .......................... ........... 707, 534 P. 2d 403 19.
2d. 495................................ ..................19.
304 P. 2d 1009 (1956) ................. ...................29.
- Eastlake v. Forest City Enterprises Inc. U.S.S.C. No.
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* CASES Page
Flast v. Cohen, 392 U.S. 83, 88 (1968) ............. 22.
Ga le v. Ham, 25 Cal. App. 3d 250, 257, 101 -8 (1972).. ... . . .... .. . . ......... ...... 14, 23.
Geiger v. Board of Supervisors, 48 Cal. 2d 832,
839, 313 P. 2d 545 (1957) ...................,.,.....24.
Gonzales v. International Assn. of Machinists, 213 Cal. App. 2d 817, 820-821 (1963) 29 Cal. Rptr.
Harper v. Virginia Board of Elections 383 U.S.
663 (1966)..........................................12.
Hopping - v. Council of City of Richmond, 170 Cal.
605, 613 (1915) ....................................25, 28
Hunter v. Erickson, 393 U.S. 285 (1969) .............15.
James v. Valtierra, 402 U.S. 137, 141 (1971) ........ 7, 12, 20.
Jolmson v. City of Chremont, 49 Cal. 2d. 826,
83.5, 323 P. 2d. 71 (1958) ..... ..................... 25, 28.
Katzenbach v. Morgan, 384 U.S. 641 (1966). . . . . . . . . . 12.
- Kevelin v. Jordon, 62 Cal. 2d 82, 396, P.2d. 585 (11364)............................................. 18, 21
- Kwai Chiu Yuen v. INS, 406 F. 2d 499 (9th Circuit
Ucher v. Walsh, 17 Cal. App. 727 (1911) ........... 17, 25.
Lxr v. Dominguez, 212 Cal. 587, 593 (1931) ......... 23, 25
Mcl'adden v. Jordan, 32 Cal. 2d. 330, 332, 196 P.
-787 (1948) ...................................... 14.
w- Rptr. 3 0. 19 1 .................................. 24.
190 ................................-..........-.....29.
# -
-
t
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1969), cert. den'd 395 U.S. 908 ...........,....... 19. -
ne v. Acker, 189 Cal. App. 2d. 558, 563, 11 Cal.
Mmre v. Qgilvie, 394 U.S. 814 (1969) .............. 12.
* O'Loane v. O'Rourke, 231 Cal. App, 2d 774, 784, Cal. Rptr. 283 (1965 ............................... 10, 23, 25,
k Pacheo v. Beck, 52 Cal. 3 (1877) .................. 17.
Ratto v. Board of Trustees, 75 Cal. App. 727(1925)..18.
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Page CASES -
Reynolds v. Sims, 377 U.S. 533 (1964) ............ 11.
Southern Alameda Spanish Speaking Organization. v. City of Union City, Calif. 424 , F.2d 291, 244, @th Cir. 1970) ...................................
Warner v. Kenny, 27 Cal. 2d 627, 629, 165 P. 2d
889 (1946)....................................... 24.
Wheelright v. County of Marin, 2 Cal. 30 448, 85 Cal. Rptr. 809 (1970)...................................23.
10, 13.
William v. Gill, 65 Cal. App. 129 (1924) .......... 18.
Wright v. Jordon, 192 Cal. 704 (1923) ............. 17.
Cal. Code of Civ. Pro. $1085 ...................... 29.
CODES
-----
t California Elections Code $4050 et. m............ 2.
.....
L California Election Code Section 4051 et. seq. 13, 31.
California Elections Code $4052 .................... 11,13
Cal. Gov't Code $65507 ............................. 28.
California Constitution, Article 111, $3 ........... 19.
California Constitution Article IV $1 ............. 8, 20, 31.
Cal. Jur. 2d.. .................................... 25.
C.J.S. Municipal Corporations, $454, 874-875 ..... 26.
-
CONSTITUTION
MISCELLANEOUS
--
41 -- Cal. Jur. 2d. Public Officers, 124-125, pp.10-12.17.
R. J. Diamond et. al. "California's Political Reform Act, Greater Accessto the Initiative Process," 7 S.W.U L. Rev. 453, 459 .n30 (1975) ........................ 9.
9.
- - -.-
-
- D.S. Greenberg, 54 --- Cal. L. Rev. 1717, 1723 (1966)
F. Hitchborn, Story of the Calfornia Legislature of
v. 1911 (1911) Appendix ............................. 8.
-vi -
6
5
MISCELLANEOUS Page
Council of the League of Women Voters (1967) ........
* . "Local Government - Facts and Issues, " Cook County
McQuilllin, Municipal Corporations;................. 19, 25
E. Oberhaltzer, The Referendum in America,
19 Ops. Atty. Gen. 94 (1952)........................ 15.
36 Ops. Atty. Gen. 365, 367 (1973).. ............. .18.
M. Radin, "Popular Legislation in Calfomia,"
W.O. Stanley et. al. Social Foundations of
K. Wallace, Califbrnia Through Five Centuries
(1974), 84 .......................................... 8.
7.
106 - 1107 .......................................... 7, 8,
35 Cal. L. Rex. 171 (1947) .......................... 9.
Education (1967),27. .............................. 7.
---
,
Witkins, 2 Cal. Proc. 2 Actions, $38 ................ 22.
B Witkins, Cal. Pro. 2d ............................... 25.
p. 3783..............,.............................. 29.
- -
--
Witkins -- Cal- Pro. 2d, "Extraordinary Writ, " 84,
Wright, B.F., Jr., American Interpretations of ......................... 30. 324 - 326 Natural Law (1931),
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-.
STATEMENT OF THE CASE
% This case comes before this Court upon Petitioners'
original writ of mandate, prayed for to compel the City Count
of the City. of Carlsbad to perform certain ministerial delint
duties pursuant to the California Elections Code. The Califc
Elections Code 54050 et. - seq. indicates the City Council, mu
either repeal Carlsbad City Ordinance No. 9456 or place said
ordinance to a vote of the electorate via the referendum proc
On July 27, 1976, the Superior Court of the North Coun
Judicial District, San Diego County denied petitioners' ex
parte application for temporary restraining orders. Said
Superior Court denied petitioners ' writ of mandate on August
27, 1976.
i
Petitioner filed a petition for a writ of mandamus in
the Fourth District Court of Appeal, Division One. Said
petition was summarily denied without an opinion on September
24 , 1976.
4
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STATEMENT OF FACTS
-c Prior to the incorporation of the City of Carlsbad, the
San Diego Gas and Electric Company (hereinafter SDG&E) power
generation facilities with stacks existed at Encina. During
1971, the Carlsbad Municipal Code was amended, providing for
a Public Utilities (P-U) zone. Concomitantly, portions of the
SDG&E property surrounding the Encina plant were annexed to the
City. The entire company's holdings were then zoned P-U.
On August 3, 1971, the City Council adopted Ordinance
No. 9279. Ordinance No. 9279 encompassed a specific plan (SP)
for the approximate 680 acres of SDG&E's holdings, including
the Encina Power Plant. This specific plan (SP-144) was adopte
subject to a portion of the SDG&E property being annexed to the
City.
.
*
Condition 5 of Section 2 of Ordinance No. 9279 prescribes
the heights of future power generating buildings and transmissi
line tower structures to be of heights and a configuration
similar to existing facilities.
is to exceed thirty-five feet in height unless a specific plan
is approved at a public hearing. SP-144 included the future
construction of a fifth and final power generating unit.
No other structure or building
At the time SP-144 was adopted, the height of each of the
then existing stacks was 190 feet. Each of the stacks was fift
above the roof level of the generating facility. Approximately
nine square miles of land area were visually impacted by the
power plant.
%.
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.. SDG&E desires to replace the four existing 190 foot smoke-
-. stacks with one single large smokestack, extending 400 feet
above sea level and 242 feet above the height of the roof of th
power generating facility. Approximately 34 square miles of
land area will be visually impacted by this single stack.
On April 27, 1976, the Carlsbad City Council adopted
Ordinance No. 9456, approving the construction of a 400 foot
high smokestack and removal of four existing smokestacks.
ordinance was designated as an amendment to SP-144 and was
entitled SP-144B.
adoption by the Council. Section 4 of Ordinance No. 9456 state
"that the 35 foot height limitation established by Condition 5
of Section 2, or Ordinance No. 9279, shall not apply to the 400
This
Public hearings were duly held prior to its
*
11 c foot stack ...
By amending Ordinance No. 9279 (SP-144) to eliminate the
35 foot height limitation imposed on any future structure or
building and permitting the construction of a 400 foot structur
the City Council enacted an Ordinance (No. 9456, SP-144B)
permitting the construction of a structure some 365 feet in exc
of what had previously been permitted.
Viewing Ordinance No. 9456 as a significantly substantial
legislative change subject to referendum, qualified voters
circulated the appropriate petition protesting the adoption of
said ordinance and requesting the City Council either repeal it
or submit it to the electorate. This petition was submitted fo
filing with the Carlsbad City Clerk on June 2, 1976, and on
July 20, 1976, the City Clerk presented the petition to the Cit
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Council with a certificate indicating almost twice as many
signatures appeared on the petition as required by law.
Agenda Bill 3722, the referendum petition was denied by a
three to one vote of the City Council on July 20, 1976.
City Council refused to repeal Ordinance No. 9456 or submit
it to the electorate. Instead the Council reaffirmed the
. By
The
ordinance, declared it not subject to referendum, and pemittec
City administrators to issue grading and building permits
authorizing work on the 400 foot smokestack.
I
THE ISSUE TO BE DISCUSSED BY AMICUS CURIAE
The issue to be discussed by the amicus curiae is whether
Ordinance No. 9456 adopted by the Carlsbad City Council, appro'
ing the construction of a 400 foot high smokestack at SDG&E's
Encina power plant, must either be repealed by the City Counci:
or submitted to the people for a referendum vote.
r
The basic contention of the amicus curiae is that the
proper procedure to be followed when a dispute exists with reg;
to whether a particular enactment is subject to referendum, is
to place the issue before the electorate via the referendum
method and seek to invalidate a vote which disfavors the enact.
ment of the ordinance, subsequent to the electorate so decidir
This contention has three basic underlying rationales:
(I) The referendum vote by the people may actually
approve the ordinance of the council, rendering any legal
issue moot and judicial interference in the legislative
process unnecessary; (2) judicial determination prior to the
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- actual referendum vote constitutes an undue judicial interferen
with the legislative process which serves to establish a precedl
tial threat to the referendum process in toto; and (3) the voti
rights of the electorate is a fundamental right to be zealously
safeguarded.
‘L
The amicus curiae contends that only after the referendum
has been held may a court adjudicate the issue on the merits
i.e., whether or not the ordinance authorizing the construction
of the 400 foot high smokestack represents such a significant
substantial departure from the specific plan as to render it
a legislative action subject to referendum.
The amicus curiae further contends that Western philosophy
*
and history have established the people as the ultimate source
> of all political power and the referendum process, in reserving
to the people the right to act directly as legislators, reflects
the wisdom, sagacity and perspicacity of Western political
development. Furthermore, the policies underlying the referendv
process as presently practiced in California have evolved from
and reflect the traditions of Western political history and must
be considered in light thereof.
I1
WESTERN POLITICAL HISTORY ESTABLISHES THE PEOPLE AS THE ULTIMATE SOURCE OF POLITICAL POWER
A. DIRECT DEMOCRACY HAS ITS ROOTS IMPLANTED IN GREEK HIST.
Democracy is frequently defined as a form of political
organization in which the state is controlled by the people.
conception has existed at least since the time of the Greeks in
Th:
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1
..
the fifth century B.C. As originally instituted in the Greek
- city states, democracy meant direct rule by the people. The
New England Town meeting, the initiative, the referendum, and
recall are political institutions reflecting this time-honore,
historical tradition of direct democracy. W.O. Stanley et. a
Social Foundations of Education (1967), 27
The New England Town Meeting is a primiary example of di.
citizen participation in the legislative process. This insti
tion has existed since colonial times. At such meetings, the
qualified voters participate personally in levying taxes, vot
appropriations, electing officials and enacting by-laws.
"Local Government - Facts and Issues", Cook County Council of
the League of Women Voters (1967).
A-
B. THE REFERENDUM PROCESS REPRESENTS A MORF, LIMITED CONCEPT OF DIRECT DEMOCRACY AS PRACTICED IN THE UNITED STATES
The referendum is a more limited concept of direct citiz
participation in the legislative process, but nevertheless
reflects the basic concept of the people being the ultimate
source of all political power. James v. Valtierra, 402 U.S.
137,141 (1971). New Hampshire and Massachussetts, in the tradi
of direct democracy, submitted their state constitutions draf
during the Revolutionary Period for a referendum vote by the
people. E. Oberholtzer, The Referendum in America, 106-107.
Referendum soon became an accepted means of amending sta
constitutions, with Connecticut leading the way in 1818, foll
by Alabama in 1819 and New York in 1821. Id. at 147-150.
Switzerland was the first country to submit statutes to the
-
- 7-
- people for approval via the referendum process. Id. -
* South Dakota was the first state to introduce the use of
This 1896 amendment referendum in the enactment of statutes.
to the South Dakota Constitution established a precedent other
states would later follow. The provision read:
The legislative power shall be vested in a legislature which shall consist of a senate and a house of representatives ... the people
expressly reserve to themselves the right to
propose measures, which measures the legisla- ture shall enact and submit to a vote of the electors of the State ... to require that any
laws which the legislature may have enacted shall be submitted to a vote of the electors of the State.. . (Emphasis added) Oberholtzer at 174-175.
C. THE REFERENDUM PROCESS HAS LONG BEEN UTILIZED IN CALIFORNIA AT ALL LEVELS OF GOVERNMENT
The referendum in California has been an enduring politica
institution. The Constitution of 1850 was approved by the vote
via the referendum process. K. Wallace, California Through
Five Centuries (1974), 84,
The 1879 Constitution was similarly submitted to and appro
by the electorate. Id. at 208. In 1902, a constitutional
amendment permitted home rule cities to amend their charters by
initiative. Cal. Const. Art. IV, $1 (1902).
-
- -
By constitutional amendment in 1911, the referendum,
initiative, and recall were extended to apply to state statutes
and county and city ordinances, F. Hitchborn, Story of the
California Legislature of 1911. (1911), Appendix XXI. This
amendment reserved the right of referendun, inieiative and reca
to the people so this constitutional measure was self-executing
-8-
+ Id. at 95. -
These changes were brought about as the result of a
grass roots reform movement. M. Radin, "Popular Legislation
in California," 35 Cal. -- - L. - Rev. 171 (1947). Governor Hiram
Johnson was elected as a reform governor and in his inaugural
address made the following remarks regarding the referendum
process.
*
While I do not by any means believe the
initiative and referendum and the recall are the panacea for all our political ills, yet they do place in the hands of the peopLe the meansby which they may protect them- selves ... (T)he initiative and referendum depend on our confidence in the people and
of direct egislation owever The they ==E= p rase in their abilit to overn.
their opposition, in reality believe the
people cannot be trusted.. . (Emphasis added) Hitchborn
at appeniiIV.
++
At the present time, California's Constitution provides
for direct legislation similar to those of twenty-four other
states. R. J. Diamond eJ. al. "California's Political Reform
Act, Greater Access to the Initiative Process," 7 S.W.U.L. Rev.
453, 459 n. 30 (1975). Since 1912, there have been more than
three hundred statewide initiative measures proposed in
California. 7 S.W.U.L. Rs 453, 553 - 561 (1975). At each
level of government-state, county, city and special district-
the scope of the initiative and referendum is as broad as .
legislative power at that level. D.S. Greenberg, 54 -- Cal. L.
Rev. 1717, 1723 (1966). -
Thus, the historical origin and extension of the referendi
clearly establish its significance as a tool of American democi -
-9 -
- not to be tampered with in a moment of political expediency
m and whimsy.
I11
IT I!: FUNDAME!NTAL THAT THE POWER OF REFERENDUM DERIVES FROM THE PEOPLE
VI A referendum cannot . . . be characterized as a delegatio]
of power.
derives from the people ...I' Eastlake v. Forest City Enterpric
- Inc., U.S.S.C., No. 74-1563, June 21, 1976, CCH at B3504.
Under our constitutional assumptions, all power
Under Article I, section 2 of the California Constitution,
"all political power is inherent in the people."
section 1 provides:
vested in the California Legislature.. - but the people reserve
to themselves the powers of initiative and referendum.
(Emphasis added).
of a power reserved by them, and not of a right granted to them
O'Loane v. O'Rourke, 231 Cal. App. 2d 774, 783, 42 Cal. Rptr. 2
(1965).
Article IV
"The legislative power of this state is
11
The referendum is an exercise by the people
The Ninth Circuit has equated voters in the referendum
process with legislators:
A referendum... is the city itself legislating through its voters - an exercise by the voters of their traditional right to override the views of their elected representatives as to what serves the public interest. Spanish Speaking Organization v. City of Union
City, California, 424 F.2d 291,294 , (9th Cir.1970).
IV
ELECTION CODE PROVISIONS RELATING TO
TO CONSTITUTIONAL AND HISTORICAL ORIGINS
Southern Alameda
- REFERENDUM PROCEDURES SHOULD BE CONSTRUED WITH REGARD
- 10 -
* Provisions in the California Election Code relating to
i the people's reserved legislative power of referendum should
be considered in light of their constitutional and historical
origins. These provisions are not reflective of ordinary law
derived via the usual legislative process, but rather mirror
the experience and wisdom of centuries of historical develop-
ment. Thus, statutory referendurn provisions should be granted
greater deference and liberality when judicial scrutiny is
sought than ordinarily granted statutory provisions.
The internal statutory provisions relating to referendum
embody this principle by mandating a one year legislative
moratorium when the voters have vetoed a legislative enactment
via the referendum process. Election Code - $4052 provides :
If the legislative body ... submits the ordinance to the voters and a majority.. .do not vote in
favor of it, the ordinance shall not again be enacted by the legislative body for a period of one year.. .
v
IT IS FUNDAMENTAL THAT VOTING RIGHTS ARE TO BE ZEALOUSLY SAFEGUARDED
A. THE COURTS HAVE CONSISTENTLY STRUCK DOWN LAWS INFRINGING ON THE RIGHT TO VOTE
The right to vote is a fundamental right of the people.
Baker v. Carr, 369 U.S. 186 (1962). This axiom is the basis
of the United States Supreme Court's "one man one vote"
decision. Id. The Court extended its Baker holding in
Reynolds v. Sims, 377 U.S. 533 (1964) by setting forth
- .
- 11 -
a specific criteria for implementing the "one man one vote"
s t andar d I %
In Moore v. Ogilvie, 394 U.S. 814 (1969) the Court held
that its voter equality principles applied to requirements
regarding geographical distribution of signatures on nominatini
petitions €or canditates of new parties. In Avery v. Midland
County, 390 U.S. 474 (1968), the Court applied the Reynolds
standards to local government.
Literacy tests infringing on the fundamental right to
vote have been disallowed. Katzenbach v. Morgan, 384 U.S. 641
(1966).
Harper v. Virginia Board of Elections, 383 U.S. 663 (1966).
A state law restricting the right of soldiers to vote has been
held invalid. Carrington v. Rash, 380 U.S. 89 (1965). A
statute forbidding residents of a federal enclave to vote has
been overturned. Evans v. Cornman, 398 U.S. 419 (1970).
Burdensome durational residence requirements have been held
unconstitutional.
The poll tax was held violative of equal protection.
Dunn v. Blumstein, 405 U. S. 330 (1972).
B. THE RIGHT TO VOTE OUTWEIGHS THE RIGHT
TO BE FREE FROM RACIALLY DISCRIMINATORY EFFECTS OF THAT VOTE.
When the courts have been called upon to balance the
right to vote against some other fundamental right, the scales
have been weighted in favor of the right to vote.
have the Courts safeguarded the electorate's right of referendum
that federal courts have rejected challenges to the exercise
thereof, even when racial discrimination has potentially
motivated the referendum. James v. Valtierra, 402 U.S. 137
So zealously
-12-
.I (1971) ; Southern Alarneda Spanish Speaking Organization v. City
-4 of Union, 424 2d 291, 294 (9th Cir. 1970).
In Valtierra, the United States Supreme Court held the
California procedure for mandatory referendums regarding low
cost housing, is not violative of equal protection. 402 U.S.
at 141-142. The Ninth Circuit in Southern Alameda found the
fact that discrimination may have resulted against Mexican
-Americans from a city-wide referendum abrogating the city comc
rezoning land for a federally financed housing project was not
so clear as to require a preliminary injunction ordering the
city to proceed on its original rezoning. 424 F.2d at 296.
VI. - A PERNICIOUS PRECEDENT WILL BE ESTABLISHED IF
ANCE OF THEIR MINISTERIAL DUTIES CITY OFFICIALS ARE PERMITTED TO EVADE PERFORM-
A. STATUTORY LANGUAGE MANDATES CITY OFFICIALS
PLACE THE ISSUE BEFORE THE ELECTORATE
The city clerk has the ministerial function of certifying
the appropriate number of qualified voters have signed the
referendum petition. Cal. Elec. Code 4051 et. seq. Once the
city clerk has accomplished this task, Cal. Elec. Code 4052
provides :
-
--
If the legislative body does not entirely repeal the ordinance against which the petition is filed, the legislative body shall submit the ordinance to the voters.. . The ordinance shall not become effective until a majority of the voters voting on the ordinance vote in favor of it. (Emphasis added)
The language of the Code section is mandatory. The task
of the legislative body is ministerial i.e. place the issue
before the voters.
-13 -
. B. CASE LAW INDICATES ONLY PATENT INVALIDITY OR UNQUESTIONABLE UNCONSTITUTIONALITY
VOTE BY THE ELECTORATE .- PERMITS JUDICIAL INTERVENTION PRIOR TO A
The controlling case on this point is Farley v. Healey,
67 Cal. 2d 325, 431 P.2d 650 (1967). In Farley, the registrar
of voters refused to place a proposed Viet-Nam initiative on
the ballot, claiming it would be invalid if approved as the
subject-matter of the initiative was inappropriate.
held:
The Court
The right to propose initiative measures
cannot be properly impeded by a decision
of a ministerial officer, even if supported by the advice of the city attorney, that the
subject is not appropriate for submission to
the voters. Id. at 327. -
The Farley decision further explains, in certain limited
* circumstances, a Court may interfere with the initiative proces
where compelling reasons exist. The Court cites McFadden v.
Jordan, 32 Cal. 2d 330, 332, 196 P. 2d.787 (1948), as an
example. In McFadden, an attempt was made to revise the
California Constitution by means of initiative.
tory procedure is permissible via the initiative process and
the Court refused to grant a writ of mandamus ordering the
Secretary of State to place the initiative on the ballot. Id.
The Farley decision is further buttressed by the decision
Only an amenda
-
in Gayle v. Ham, 25 Cal. App. 3d 250, 101 Cal Rptr. 628 (1972)
The Court held that "even grave doubts as to the constitutiona-
lity of an initiative measure do not compel a court to determin
its validity prior to its submission to the electorate." Id. -
- at 256. The Court in Gayle recognized the "premature inter-
- 14-
-
position of the judiciary constitutes an unwarranted limitatior
upon the people's reserved power of initiative. Id. at 258. .. -
Only where a proposed initiative is patently invalid, should
a Court adjudicate the issue prior to cornanding the ministeri:
officer to undertake his duties. Id. at 257. -
A referendum may only be overturned where the ensuing
results are clearly unconstitutional. Hunter v. Erickson, 393
U.S. 385 (1969). "The sovereignity of the people is itself
subject to those constitutional limitations which have been dul
adopted . . ." - Id. at 392. Thus, government officials have on14
ministerial tasks to perform, insuring the issue in duly placec
before the electorate.
d.
In Duran v. Cassidy, 28 Cal. App. 2d 574, 104 Cal Rptr.
793 (1972), the Court reached a decision consistent with this
line of cases. The city clerk in Duran had refused to process
an initiative petition seeking to prevent the city from owning
and operating a golf course. The Court held:
We have no alternative but to command respondent
to accept the petition and to perform his duties in connection therewith unless we find that, be ond uestion, the proposed ordinance is invalid.
'*sb). - Id. at 580
Similarly, the Attorney General has concluded that even
though an initiative petition submitted to the county board of
supervisors proposed the revision of supervisorial districts
may eventually be invalidated, the board itself had no authorit
to determine the validity of the initiative. 19 Ops. Atty. Ger
94 (1952). The board's task is purely ministerial.
-
-
-15 -
*
C, JUDIXIAL CONTRADICTION OF EXISTING
STATUTES AND CASE LAW WILL ESTABLISH
A TREND ENCOURAGING ENCROACHTENT UPON THE REFERENDUM PROCESS
!.
The referendum currently under consideration is neither
patently invalidnm unconstitutional.
intervention on che merits prior to the electorate voting
would.encourage a city council to arbitrarily and capricious-
ly curtail the referendum power, thus permitting political
expediency to encroach upon the people's fundamental right to
To exercise judicial
vote,
The California Coastal Zone Conservation Commission
specifically provided the stack could only be constructed if
all necessary local permits and approvals were forthcoming.
(Staff Recommendation, Pages 2 and 11, November 18, 1975).
The people's reserved legislative power of referendum subjects
the construction of the stack to voter approval. Judicial
intervention, at this time, on the merits would establish a
pernicious precedent curtailing this reserved legislative powe:
Not only would the referendum power be curtailed in this
instance, but future local legislatures would be encouraged to
declare their enactments not subject to the referendum process
Attempts by politicians desiring to monopolize the
legislative power solely unto elected representatives have
recently been undertaken. Thus, an initiative .aimed at
restricting the number of terms an elected county official
might serve has been judicially challenged in San Diego
County prior to submission to the electorate. In Arroyo ..
-16-
\
+
Grande, the city council has refused to place an initiative
regulating the zoning of agricultural land on the ballot. Y
Judicial intervention on the merits prior to an initiativc
or referendum being considered by the electorate will serve to
promote political actions aimed at eroding the people's reservc
legislative powers.
VI1
PUBLIC OFFICIALS HAVE ONLY SUCH POWERS AS ARE CONFERRED UPON THEM BY LAW
Public officers have only such powers as are conferred
upon them by law, either expressly or by fair implication.
-- Cal. Jur. 2d. Publie Officers, 124-125, pp.10-12.
a century, courts have been reluctant to interpret statutory
or constitutional provisions as granting discretionary functio
to city, county, or state officials.
41
For almost
Thus, the Secretary of State has purely a ministerial
function in estimating the number of votes cast in a county fo
each person voted for as a Congressional representative. Pach
v. Beck, 52 Cal. 3 (1877). Under the referendum provisions of
the 1911 Statutes, the functions of the board of city trustees
in placing the issue on the referendum ballot were ministerial
Locher v. Walsh, 17 Cal. App. 727 (1911). The Secretary of St
has ministerial duty to set forth the official record of the
canvass of election returns regarding the consolidation of two
cities despite the institution of legal proceedings in several
state courts challenging the election. Wright v. Jordan, 192
Cal. 704 (1923). A city clerk must exercise only ministerial -
- 17-
.
duties in certifying a recall petition. William v. Gill, 65
. Cal. App. 129 (1924) ; Ratto v. Board of Trustees, 75 Cal. App.
724 (1925).
A city council has no discretion to do anything except
comply with the Annexation of Uninhabited Territory Act of 193!
which requires the termination of annexation proceedings when
the appropriate number of property owners protest. American
Distilling Co. v. City Council of Sausalito, 34 Cal. 2d 660,
213 P. 2d. 704 (1950). The Secretary of State has a clear
ministerial duty to file a declaration of the vote on a state-
wide proposition even where he believes the proposition to be
constitutionally invalid. To do otherwise, would be "an
intolerable interference with the people's reserved legislative
power ...I' Kevelin v. Jordon, 62 Cal. 2d 82, 83, 396 P. 2d. 585
(1964).
The Secretary of State is without authority to refuse to
file a declaration ofcandidacy because he has facts outside the
fact of the filing nomination papers indicating the candidate
failed to meet residency requirements. His duties are purely
ministerial, not discretionary. 36 Ops. Atty. Gen. 365, 367
(1973).
To judicially bestow upon public officials authority in
excess of statutory grants would derogate the intent of the stat
legislature. Ministerial tasks should not be judicially
transmuted into discretionary functions.
>
-18-
*
VIII.
THE DOCTRINE OF SEPARATION OF POWERS INDICATES THE COURT WILL BE INTERFERING
WITH THE LEGISLATIVE PROCESS IF IT FAILS
TO ISSUE THE WRIT OF MANDAMUS
%
A. THE DOCTRINE OF SEPARATION OP POWERg IS BASIC TO OUR SYSTEM OF GOVERNMENT
Although not clearly enunciated at the federal level, the
doctrine of separation of powers flows naturally from the
division of the federal government into three branches. Kwai
Chiu Yuen v. Ins, 406 F. 2d 499 (9th Circuit 1969), cert. den'
395 U.S. 908. This principle is firmly articulated in the
California Constitution.
--
- "The powers of state government are legislative, executive, and judicial. Persona charged with
either of the others ..." Cal. Constitution,
Article 111, Section 3.
the exercise of one power may not exercise -
This constitutional scheme establishes a system of checks
and balances to protect one branch of government against over-
reaching by another branch. Bixby v. Pierno, 4 Cal. 3d 130
(1971) 93 Cal. Rptr. 234, 481 P. 2d. 242. The doctrine of
separation of powers applies to legislative action of local
legislative bodies. City and County of San Francisco v. Cooper,
13 Cal. 3d 898, 915, fn. 7 (1975), 120 Cal. Rptr. 707, 534 P.
2d. 403; County of Los hgeles v. Superior Court, 13 Cal. 3d
721, 726 fn. 5 (1975), 119 Cal.Rptr. 631, 532 P.2d. 495; 5
McQuillin, Municipal Corporations (3d. ed. 1969). S16.90, pp.
287-290. Ergo, the doctrine of separation of powers applies
when the people exercise their reserved legislative power of'
>
-19 -
4
referendum at the local level.
B. THE UNITED STATES SUPREME COURT HAS HELD THE PEOPLE ACT AS LEGISLATORS IN THE REFERXNDUM PROCESS
r-
The United States Supreme Court has clearly indicated
the people act as legislators in the referendum process.
Valtierra, 402 U.S. 137 (1971).
re-affirms this tenet.
Section 1 states:
The California Constitution
Cal. Constitution, Article IV, -
The legislative power of this State is vested
in the California Legislature..., but the
people reserve to themselves the powers of initiative and referendum.
The United States Supreme Court has recently held the
c referendum process to be a constitutional method of the people
directly and legislatively affecting rezoning.
Forest City Enterprises, Inc., U.S.S.C., No. 74-1563, June 21,
1976, CCK, B3502. The Court stated:
Eastlake v.
The referendum ... is a means for direct
political participation, allowing the people the final decision, amounting to a veto ower, over enactments of representative bs. - Id. at B3505
C.
-
FAILURE TO ISSUE A WRIT OF MANDAMUS IS
INJUNCTION PREVENTING PUBLIC OFFICIALS FROM EXECUTING THEIR DUTIES.
EQUIVALENT TO A COURT GRANTING AN
If the City of Carlsbad had undertaken to properly
exercise its ministerial function - to place the issue before
the electorate - and opponents of the measure judicially
sought to prevent the exercise of such ministerial actions,
the Court would be deemed to be interfering with the legislatic
*
- 20-
-
process if relief were granted. "An injunction cannot be
granted to prevent the execution of a public statute, by
officers of the law, for the public benefit." Cal. Civil Code
Section 3423 and - Cal. --- Code of Civ. Pro. - Section 526.
-.
If this Court fails to grant plaintiffs the relief sough
in effect, this Court will be interfering in the legislative
process by precluding the duly constituted electorate from par-
ticipating in the legislative process via referendum.
D. CASE LAW SUSTAINS TEIE PROPOSITION THAT THE
COURT WOULD BE UNDULY INTERFERING WITH THE LEGISLATIVE PROCESS IF IT FAILS TO ISSUE THE WRIT OF MANDAMUS
A case on point is Kevelin v. Jordon, 62 Cal. 2d 82,
* 396 P. 2d 585 (1964). In Kevelin, the Secretary of State refus
to file a declaration of the vote on a Proposition submitted to
the electorate via the initiative procedure. The Court held it
would violate the doctrine of separation of powers if the Court
failed to issue a writ of rnandamus.
Regardless of how clearly a statute's unconstitutionality appears, it would be an intolerable interference with the coordinate branches of government to invoke the udicial power to pre- vent the Legislature rom recording its vote on a statute or from submitting it to the Governor for his signature, or to prevent the Governor from signing
it, or to prevent the Secretary of State from filing it ... (Citations omitted)
It would likewise be an inkolerable inter ference with the people's reserved legisla- ower to prevent the official recorda-
at 83.
ACTS AS THOUGH IT WERE THE SECOND BODY IN
+ 7
-57 tion o their vote. (Emphasis added). - Id.
L
E. IN THE REFERENDUM PROCESS, THE ELECTORATE
-
-21-
a
A BICAMERAL LEGISLATURE. -. The doctrine of separation of powers should be consider1
whenever a court is called upon to contravene legislative actic
If this court were to decide the present controversy on these
merits at this point in time, it would be the equivalent to a
court declaring a law passed by one house of a bicameral legis1
ture invalid before the other house had been given an opportur
to vote on the measure. Clearly, such judicial action would E
a violation of the doctrine of separation of powers.
IX
THE ISSUE IS NOT YET "RIPE" FOR JUDICIAL DETERMINATION 014 THE MERITS
It is fundamental and axiomatic that a court will only
decide the merits of a case where a justiciable controversy exi
Witkins, 2 -__. Cal. Proc. 2, Actions, Section 38. A controversy is
"ripe" when the facts have sufficiently coalesced to permit a
-
reasonable decision to be reached. 9. Both California and
Federal Courts adhere to this doctrine. California Water &
Telephone Co. v. Los Angeles, 253 Cal. App. 2d 16, 22 (1967);
Flast v. Cohen, 392 U.S. 83, 88 (1968).
The controversy currently before the Court is not yet ri
for a judicial determination on the merits. Until the electora
has voted on the referendum, and in fact, negated Ordinance No.
9456, no justiciable controversy will exist. The electorate ma
by their vote, approve the actions of the City Council, thereby
c rendering any potential dispute moot. The merits of an issue a:
not ripe for adjudication prior to a vote by the electorate unlc
the invalidity of the proposed referendum measure is patently
-22-
invalid. Gayle v. Ham, 25 Cal. App. 3d 250, 257, 10l.Cal.
Rptr. 628 (1972). 2
Only when a court acts to preserve and promote the
referendum process is it appropriate for a court to determine
the merits of a case prior to the electorate voting on an issue
Thus in Wheelright v. County of Marin, 2 Cal. 30 448, 85 Cal.
Rptr. 809 (1970), the court found a precise plan providing for
the construction of a roadway a legislative action subject to
the referendum process. Similarly, in O'Loane v. O'Rourke,
231 Cal. App. 2d 774, 784, 42 Cal. Rptr. 283 (1965), the Court
found a general plan subject to the legislative process.
In the instant case, the Court need only concern itself .-
with ensuring the measure is placed before the people.
To do otherwise, would entail judicial intervention in a non-
Id. -
a
justiciable matter.
X
IT IS FUNDAMENTAL THAT REFERENDUM PROVISIONS ARE TO BE LIBERALLY CONSTRUED
It is well settled that the power of initiative and referend um... is the exercise by the people of a power
reserved to them and not the exer- cise of a right ranted to them ... (Citations omitted 5- For that reason, and in order to protect the people ... in the exercise of this reserved
legislative power, statutory. - - provision (sic) dealing with the referendum should be afforded the same liberal construction afforded election statutes generally. (Emphasis added) Ley v. Dominguez, 212 Cal. 587, 593 (1931). (Emphasis added).
u
-23 -
4 . The fundamentality of liberally construing referendum
4 provisions has been repeatedly propounded. Geiger v. Board of
Supervisors, 48 Cal. 2d 832, 839, 313 P- 2d 545 (1957) ; BIotte
v. Farre11,42 Gal. 2d 804, 809, 270 P. 2d 481 (1954); Warner
. v. Kenny, 27 Cal. 2d 627, 629, 165 P. 2d 889 (1946); Atlas
Hotels, Inc. v. Acker, 230 Cal. App. 2d 658, 660-661, 41 Cal.
Rptr. 223 (1964); Mervynne v. Acker, 189 Cal. App. 2d 558, 563
11 CaL. Rptr. 340 (1961); Dye v. Council of the City of Compto
80 Cal. App. 2d 486, 491, 182 P. 2d 623 (1947).
Exception to this broad judicial pronouncement are few.
In Geiger, the Court held a county ordinance imposing a sales
tax was not subject to referendum as acts providing for tax
levies were specifically exempted by the California Constitutic
and statutes. 48 Cal. 2d at 836-837. The Court laid down the
general rule:
.
.
If essential governmental functions
would be seriously impaired by the
referendum process, the courts in construing the applicable constitu-
tional and statutory provisions, will assume that no such result was
intended. (Emphasis added). Id. at 839 -
The referendum proposed, pertaining to the construction
of a 400 foot smokestack, in no manner “seriously impairs an
essential governmental function** of the City of Carlsbad.
The construction of this 400 foot smokestack does not involve
the construing of any constitutional or statutory provision.
Thus, the referendum which is the subject of the present contro
versy readily passes the Geiger test.
- 24-
2 XI.
THERE IS NO DISTINCTION BETWEEN
INITIATIVE AND REFERENDUM WHEN
APPLYING JUDICIALLY ENUNCIATED TESTS
a.
It has been erroneously suggested that a distinctim
exists between the initiative and referendum processes with
regard to the judicial tests applicable. Yet common sense anc
experience dictates no such distinction is appropriate.
Almost every legal index refers to the terms as one,
i.e., initiative and referendum. McQuillin, Municipal Corpors
tions; Cal. Jur. 2d, Witkins, Cal. PXQ. 2d. The California
Constitution Art. IV $5 I and 25 refers to both reserved
legislative powers in one breath.
-- -A
The courts have ordered government officials to perform
ministerial duties and place the issue before the electorate
in referendum cases. Ley v. Dominguez, 212 Cal. 589 (1931);
Locher v. Walsh, 17 Cal. App. 727 (1911). Clearly holding
an election prior to judicial determination on the merits is
the appropriate procedure in referendum as well as initiative
cases.
The reserved legislative power of referendum may be
properly invoked only with regard to matters legislative in
character. Johnston v. City of Claremont,49 Cal. 2d 826, 835,
323 P. 2d 71 (1958); H?,
170 Cal. 605, 613 (1915); Dye v. Council of City of Compton,
80 Cal. App. 2d 486, 490, 182 P. 2d 623 (1947).
* The distinction is drawn between administrative and
legislative acts. In O'Loane v. O'Rourke, 231 Cal. App. 2d -
- 25-
*
4 774, 784, 42 Cal. Rptr. 283 (1965), the Court incorporated the
distinction as defined in 62 C.J.S., Municipal Corporations,
Section 454, 874-875;
*
... Actions which relate to subjects of a permanent or general character are considered to be legislative ... Acts constituting a declaration of
&l&sifi%+calling for
T*--
ublic ur ose or olic aII may be
the exercise of legislative
[Tlhe crucial test is whether t e proposed ordinance is one making a new law, or one executing a law already
in existence.. . [Alcts which are deemed ... acts of administration... are those which are... done to carry out legis-
lative policies and purposes already declared by the legislative body ...
(Emphasis added)
c This legislative administrative dichotomy has been
c referred to as an "armorphous distinction. "
28 Cal. App. 3d 581, 104 Cal. Rptr. 793 (1972).
Duran v. Cassidy,
In applying this "amorphous distinction" the court
should consider the policies and historical development under-
lying the people's reserved legislative power of referendum an
balance the scales in favor of preserving this right whenever
any doubt exists as to whether a particular act is legislative
or administrative.
XII.
THE LEGISLATIVE ADMINISTRATIVE DISTINCTION 1s
AN AMORPHOUS DICHOTOMY WHICH SHOULD BE CONSIDERED WITH REGARD TO THE OVERRIDING PURPOSE AND HISTORY OF THE REFERENDUM PROCESS.
WHILE ONLY LEGISLATIVE ACTIONS ARE SUBJECT
EXAMINE THE OVERRIDING POLICY CONSIDERATIONS IN APPLYING THIS TEST.
A.
a. TO THE REFERENDUM PROCESS, THE COURT SHOULD
...
-28 -
4
Not all decisions of a legislative body are subject to * rn
the referendum process.
this reserved legislative procedure.
Only legislative actions are subject 1
B THE ACTION OF THE CARLSBAD CITY COUNCIL IS LEGISLATIVE IN CHARACTER AND SUBJECT
!!b @I?ERENDUM.
While it is difficult to apply this "amorphous distinc-
tion" with absolute clarity and certainty, it can be demonstrat
that Ordinance No. 9456 is legislative in nature. Ordinance No.
9456 distinctively meets the O'Loane test in that it contains
a prominent declaration of public purpose and policy.
ordinance is imbued with the public purpose of providing clean€
This
- air. This ordinance contains the following statements:
1 provide an effective method of dis- .
L The 400 foot stack is necessary to
persing the emissions of the Encina Power Plant,
The approval of this amendment will
improve air quality in the immediate
vicinity of the plant.
To the extent there are adverse
environmental effects to the pro-
ject, they will be mitigated by the conditions of approval.
In the event that the City of Carlsbad determines that the 400- foot stack is no longer necessary as a method of air emission dis-
persion, the 400-foot stack will be removed.. .
The prior ordinance - No. 9279 - contains no such public
purpose or policy. There is no concern with air pollution in
m this prior ordinance. Furthermore, the current ordinance -
No. 9456 - specifically incorporates "any future measure requirl ..
- 27-
A 4 by the San Diego Air Pollution Control District to lessen or
otherwise control emissions" as part of the ordinance. Such i
incorporation clearly relates to a subject permanent in charac
making a new law - the focus point of the O'Loane standards fo
rendering an act legislative in nature.
e I
--
It is generally accepted that the nomenclature designat
a particular act is not conclusive with reghrd to its nature.
is possible to undertake administrative acts by ordinance and
undertake legislative acts by resolution. Hopping v. Council
City of Richmond, supra; Walker v. City of Salinas, 128 Cal. RI
832 (1976); O'Loane v. O'Rourke, supra.
Specific Plan 144B was adopted by ordinance by the Carl$
City Council. This Ordinance - No. 9456 - amended Ordinance Nc . 9279 (SP-144). Cal. Gov't Code Section 65507 states: "[Tlhe
c
-
z
legislative body may initiate and adopt an ordinance or resolut
establishing a specific plan or an amendment thereto ."(Emphasis
added).
option to amend SP-144 by ordinance or resolution. The fact th
the Council chose to amend SP-144 by ordinance impliedly demons
tes the Council's intentions to undertake a legislative act, &
amendment to a legislative act is generally deemed a legislativl
act itself. Johnston v. City of Claremont, 49 Cal. 2d 826, 835
323 P. 2d 71 (1958).
-
The statute clearly gave the Carlsbad City Council an
-
XIII.
IT IS IMPROPER TO "WEIGH THE HARDSHIPS" IN A MANDAMUS PROCEEDING, EVEN IF SUCH A TEST
PREVAIL OVER OTHER CONSIDERATIONS a WERE APPLICABLE, VOTING RIGHTS WOULD CLEARLY
- 28 -
3.
Mandamus is considered a hybrid - a mixed form of a
legal and equitable proceeding. -- Cal. Pro. 2d,"Extraordinary
Writ", 84, p. 3783. Certain equitable defenses are thus appli,
cable, i.e. unclean hands and laches. Id. However, case law
makes no reference to the balancing of hardships as a consider;
tion in mandamus proceedings. Dowel1 v. Superior Court, 47 Ca:
2d 483, 486 -487, 304 P. 2d 1009 (1956); Bruce v. Gregory, 65
Cal. 2d. 666, 671, 56 Cal. Rptr. 265, 423 P.2d 193 (1967);
Gonzales v. International Assn, of Machinists, 213 Cal. App, 21
817, 820-821 (1963), 29 Cal. Rptr. 190.
4 Y
-
A writ of mandamus "may be issued.. . to compel the
performance of an act which the law specially enjoins, as a dur
resulting from an office ..." - Cal. Code --- of Civ. Pro. 81085.
r
b
c
s
T Clearly, there is no balancing of the hardships in ordering a
public official to perform a public duty. The officer is eitht
empowered to perform the duty or not. If the officer is appro-
priately empowered to perform a public duty, there can be no hz
ship involved for the officer in performing that duty,
The possible hardships involved for the parties resultir
from the performance of the official's public duties are only
legally relevant in injuctive proceedings.
hardships were legally relevant, the fundamental right of the
electorate to vote would outweigh any hardships borne by the
parties. Supra, Argument V.
Even if possible
XI v.
CONCLUSION
4
w Justice Cardozo was keenly aware of the 'fact that there
-29 -
a .r are many fields of law in which fixed rules leave much scope
for judicial discretion. In such cases, he stated, the judge
. . . must balance all his ingredients,
his philosophy, his logic, his anal- ogies, his history, his customs, his sense of right, and all the rest,
and adding a little here and taking out a little there, must determine, as wisely as he can, which weight shall tip the scales. Wright, B.F., Jr., American Interpretations of Natural
i: .-.
I
La (19311, 324-326..
The instant controversy presents a case in which fixed rules
of law leave much scope for judicial discretion. The single n
significant issue requiring resolution by the Court is whethei
not a legislative body should be empowered to reach a determin
L tion that its own enactments are administrative in character,
.;
-r
r) thereby aborting the people's right of referendum. Should the
Court decide not to grant the relief requested by the plaintif
the Court will establish a precedent enabling any city council
to effectively emasculate the reserved legislative right of th
people to veto the acts of their elected representatives,
-
It is this basic underlying policy consideration which
of prime importance in this controversy. Against this policy
as Justice Cardozo so aptly expressed the judicial decision-mal
process - must be balanced a sense of philosophy, history, cus
and sense of right.
Philosophy, history, customs and a sense of right
definitively indicate a city council should not be permitted tc
curtail the people's right of referendum.
political power deriving from the people is embedded in our
The concept of all
r.
._1
-r
-30 -
rr
philosophical-historical tradition as exemplified by the Grc
city-sate, the New England Tom meeting, the powers of init:
tive, referendum, and recall, Article IV Section 1 of the
California Constitution and California Election Code Sectioi
t
4051 -- et. seq.
The great weight of historical tradition, constitutic
provisions, statutory enactments and decisional case law
indicate the Court should decide in favor of the people
deciding the issue by referendum.
Clearly, the proper procedure is for the City Council
to be ordered to place the subject-matter of the ordinance .. before the electorate for their enlightened consideration vj
II
w? the referendum process. Only after the vote has been deterr
and the question decided in opposition of the ordinance, sh
the Court be called upon to decide whether the subject-matte
was an appropriate topic for referendum. To decide contrari
would involve the judiciary in a premature undue interferenc
with the legislative process which would irreparably cripple
the electorate's reserved legislative power of referendum.
this juncture, the Court need not and should not decide if
. Ordinance No. 9456 was legislative or administrative in natL
4
1, - DATED: September 5'~ 1976. -
Respectfully submitted,
a
*
-I
-4
- 31 -
I .. '<
235
ATTORNEY :
-------_--- SCErnYM-..&---SCHK.E ________ ~ _____________
GQ.9 B STREET - SUITE 1310 -.---------I ---*-*-----.. . --...-..... ....____________.__.___________.
~ __________ SA.N.-R-LEG.C).~.. CP+-.9ZLQ! _______________ ~ _____ T
* AMENDEDoECLARATlON OF SERVICE BY MAIL (C.C.P. 1013a and 2015.5)
I, the undersigned, say: I am over 18 years of age, ________ e~loyed ________________________
the County of ---- ..-_- .--San--Dkgo ................................ , California, in which county the wit
eside t/Ernployed)
mentioned mailing occurred, and not a party to the subject cause. My....b.usin-ess-... _________
( BusineWResidence)
address is .--.6-O.O.-.B. 3-tr-e et__-~---S-Uit-e-l310, -_San--DiegO, .-.e& 9-210L ____. ___ ___ __________
. I served the ____ .-B-rie-f. --& .&!..~-cus ____ C-Ur-iae,--A~~~-i-ca~t-~on I- -_and- - Qrde X-- __ __ __ - ___ ____ (No., Street) (City, Stare) I
G
0
A
k
-----------.-.----*------------------------------ --L----- --- --------- - ---------__- -- --_____________ ~ ________________________________________-----------
, ---_---- - ..-. ---__------- ----- ------- ----------- - --__--____-______-______________________---------------------------------------------------------------- of which a true and correct copy of the document filed in the cause is affixed, by placing a c( thereof in a separate envelope for each addressee named hereafter, addressed to each such addres respectively as follows:
Vincent F. Biondo Jr., Charles Daly City Attorney Pearce, Cohn & Gibson City of Carlsbad P. 0. Box 1831 1200 Elm Street San Diego, CA 921x2
Carlsbad City Clerk Worden & Williams 1200 Elm Street
117 West Plaza, Suite 1
P. 0. Box 825 Richard Wharton Solma Beach, CA 92075 4655 Cass Street
OR Carlsbad, CA 92008
Attorneys at Law Carlsbad, CA 92008 ..,. T
R u San Diego, CA 92109
Each envelope was then sealed and with the postage thereon fully prepaid deposited in t
United States mail by me at ___-_ S-E--T)k@ ________________________________________------------------- California, 1
(City) c .-.-.-.. October -..---.--.--.-.-----~------------------------------------, 4 19 ---76_
I declare under penalty of perjury that the foregoing is true and correct.
October 5 San Diego Executed on ------------------.---------!------------.-------, IQ E---- at _---__..--_---_.---.-.-.-------.---------------
i
P
Y (Place) /L L Calif or nia.
_________ ______ _-_ _---__ - - - - _- - __. !?-- - __ _- - - - -- -- - -- - - - - ~ -- -- - ~ ~ -- . - - --. * Previously mailed 'and typed 10/4/76 ,,ign/tuS
PROOF OF SERVlCE BY it?A!l A Fnrm UA Pr. PIL la . -La
.
SCHULMAN & SCHULMAN
ATTORNEYS AT LAW
600.B STREET - SUITE 1310 SAN DIEGO, CA 92101
Tel; (714) 238 0303
Attorneys for League of Women Voters of San Dieguito
IN THE SUPREME COURT OF THE
STATE OF CALIFORNIA
CARLSBAD COMMUNITY CAUSE, et. al. )
)
) 1 1
) civil NO. ) ) (Cal. Rules of Court,
) Rule (14 (b)). 1 1 1 1
1 1 1 1
)
) 1
)
)
Petitioners,
vs,
&
% ROBERT FUZEE, et. a1 .
Respondents ,
an d
CITY OF CARLSBAD, et. al.
,’. Defendants,
c an d
SAP? DIEGO GAS & ELECTRIC CO.
et. al.
Defendants
APPLICATION OF LEAGUE OF WOMEN VOTERS
OF SAN DIEGUITO FOR PERMISSION TO FILE
BRIEF AS AMICUS CURIAE
TO: THE CHIEF JUSTICE:
The application of the League of Women Voters of San
Dieguito respectfully shows:
I
"
I
Applicant is the League of Women Voters of San
Diepito, un unincorporated association,
as part of the greater association of th e Leagizc cf Women
Voters of San Diego County, the League of Women Voters of
California, and the League of Women Voters of the United Stat
- has had a long standing interest in voting rights. The Lea
of Women Voters of the United States was organized in 1920' as
an outgrowth of the Suffragette Movement and in response to t
ratification of the Nineteenth Amendment granting women the r
to vote.
This organization
Both the parent organization and local Leagues have be
active in promoting and supporting measures ensuring the righ
to vote. The League of Women Voters of San Dieguito spans a
geographical area ranging from Carlsbad in t-he North to Del M
in the South. Its current membership is about one hundred
persons. This local League has sought and obtained the suppo
of the League of Women Voters of California and the League of
Women Voters of the United States with regard to the Applicat
to this Court.
I1
L4pplicant has participated as an amicus curiae at the
Superior Court level and is familiar with the questions involl
and the scope of presentation.
-2-
*
111
Applicant will address solely the referendum issue. A
copy of applicant's brief accompanies this application.
IV
Applicant believes that there is necessity for additio
argument on the foregoing point because:
1. Applicant can present authorities and argument, no
presented in briefs of petitioner or respondent, that may ass
this Court in the determination of this matter.
2. Applicant believes the legal issues involved are
a matter of public interest upon which applicant can present
information and authorities directly bearing on the issues.
3. Applicant believes additional argument will be he1
ful in this matter in that the issue presented is complex and
subject to varied factual and legal analyses. Additional
concentrated research will provide alternative arguments aid-
ing in the resolution of the matter.
4. Applicant is a member of parent organizations whic
are experienced in litigation relating to voting rights issue
and can assist the Court in locating and analyzing important
authorities bearing on the issues involved.
WHEREFOR, the League of Women Voters of San Dieguito
respectfully requests permission to file a brief as amicus
curiae in the above - entitled cause. -- DATED:S-, & ,,.i+. -, 3( , /? '/ !c
Respecfully submitted, - f
c
-3-
rr
SCHULMAN & SCHULI" ATTORNEYS AT LAW
SAX DIEGO, CA 92101 600 B STREET - SUITE 1310
Tel: (714) 238 0303
Attorneys for League of Women Voters
of San Dieguito
IN THE SUPREME COURT OF THE
STATE OF CALIFORNIA
CARLSBAD COMMUNITY CAUSE, et. al. )
) 1
) civil NO. 1
) ORDER GRANTING APPLICA?
) TO FILE BRIEF AS AN AMI
) CURIAE (Cal. Rules of C ) Rule 14(b)). ) 1
) 1
)
) 1
and ) 1 1 1
)
Petitioners,
vs .
ROBERT FFUZEE, et. al.
Respondents,
an d
CITY OF CARLSBAD, et. al.
Defendants,
SAN DIEGO GAS & ELECTRIC CO.
et. al. ; Defendants,
The application of the League of Women Voters of San
Dieguito for permission to file a brief as Amicus Curiae hav
been read and filed, and good cause appearing therefor:
IT IS HEREBY ORDERED that the League of Women Voters
San Dieguito be, and hereby is, permitted to file a brief as
c amicus curiae herein;
IT IS HEREBY ORDERED that such brief be served on all
parties to this appeal by 1976 ;
IT IS HEREBY ORDERED that all parties in the matter
serve all papers, briefs and other documents on this amicus
curiae in the same manner as though the amicus curiae were a
party in this manner;
IT IS HEREBY ORDERED that the amicus curiae be permitte
to orally argue before this Court if this Court grants the
parties permission to present oral argument; and
PERMISSION IS HEREBY GRANTED to any party in this matte
to serve and file an answering brief with days after the
brief of amicus curiae is served upon that party.
DATED :
BY : CHIEF JUSTICE
A
-2-
CliTY OF' CARLS
1200 ELM AVENUE
CARLSBfiSD, CALIFORNIA 92008
(714) 729-1181
VlMXNT F, BIONDO JR,
JULY 19, 1976 . CITY AlTORNEY
;:?NORABLE MAYOR AND CITY COUNCIL OF THE
CITY OF CARLSBAD I CALIF3RNIA
Memorandum of Law Re: Petition Protesting the Adoption of
Ordinance No. 9456 which Amended Specific Plan SP-144 to Permit the Construction of a 400-foot Single Stack to Replace
Four Existing Stacks at the San Diego Gas b Electric Company's Encina Power Plant.
Cii Xciy 4, 1975 thc City Ccur,cFl of the City of Carlsbad,
California adopted Ordinance No. 9456 which amenGed OLciinarlce No. 9279 by amending the Specific Plan adopted thereby to perm
the construction of a 400-foot single stack to replace the fou
existing stacks at the San Diego Gas & Electric Company Encina
Ordinance No. 9456 was submitted to the office of the City Cle
This Memorandum is to advise the City Council on the law as it
applies to the petition and to the options available to the
Council in reaching a decision on the matter.
The petition was filed pursuant to Section 40451 of the
California Elections Code, which provides that if a petition
protesting against the adoption of an ordinance is submitted t
the Clerk within thirty days of the adoption of the ordinance and if the petition is signed by the required number of regis-
tered voters, then the effective date of the ordinance is susp
The duties of the City Clerk>in dealing with such petitions ar
detailed in Sections 4051.1, 4051.2 and 4051.3 of the Election
Code. Pursuant to Section 4051.1, the City Clerk is first re-
quired to determine the total number of registered voters in t
City of Carlsbad as last officially reported to the Secretary of State by the County Registrar of Voters. By certificate of
mined that there are 9,673 such voters in the City of Carlsbad
The second step is for the Clerk to count the number of signat
as they appear on the petition, taking them at face value if E
the blanks on the petition are filled out, disregarding any
Power Plant. On June 2, 1976 a petition for a referendum on
the Registrar of Voters of the County of San Dieyo it was dete
.
*
I /
July 19, 1976 Honorable Mayor and City Council
Memorandum of Law
Page 2
*
signature which is not accompanied by a date, a precinct numbe
and address for the person signing. The initial prima facie co
.by the City Clerk, indicated that the petition contained 1,930
signatures. This figure was substantially in excess of the 96
petition. Therefore, the petition was formally accepted for
filing on June 9, 1976. When a referendum petition is filed
Section 4051.2 of the Elcctions Code requires tht the Clerk .examine it further to determine the validity of the signatures
Pursuant to law the City Clerk exercised her option to have th
petition examined by th’e Registrar of Voters of the County of
San Diego actZng as her deputy. The Registrar was asked to
examine the petition as required by Section 4051.2 to determin whether or not each signature on the petition was a genuine
signature of a properly registered and qualified voter of the
City of Carlsbad, accompanied by a proper date, street address
and precinct nunher. That examination was completed on July 7
1976, within the time limits prescribed by Section 4051.3 of t
Elections Code. The examination of the Registrar of Voters
indicated that the petition consisted of 230 sections, contain
iiig 1,926 total names. Of thhat total 1,026 wcre faun=? to be
valid signatures of properly Qualified electors of the City cf Carlsbad, The petition, with the Clerk’s certificate and the
results of the Registrar’s examination attached, will be pre-
sented to the City Council at your meeting of July 20, 1976.
I have examined the petition and the Clerk’s Certificate of Examination and have concluded that the petition is in pror
form for presentation to the City Council,
appear on your agenda as a regular agenda item. A public hear
ing is not required. The Council may determine that further public input is necessary. They certainly are not required tc
do so. If the Council wishes to hear from the public they may
subject to such terms and conditions as the Council might wisk to inpose. The matter could be scheduled for a subsequent Cour
meeting or the Council could receive the input at the meeting
the 20th. As long as the City Council is proceeding in a reas
able.manner, there are no statutory time limits within which t
Council’s decision on the petition must be made. The manner i
which the Council chooses to proceed in reaching their decisic on the petition is within the discretion of the Council.
The initial determination to be made by the City Council
when faced with a petition protesting the adoption of an
or 10% of the total registered voters required’for a referendu
..
The petition will
.
.
#
8
.-.
Shy 19, 1976
Honorable Mayor and City Council
Memorandum of Law
Page 3 .. . .'
ordinance is whether or not their decision is subject to the
referendum process. If the Council is satisfied based on the
-legal advice contained in this memorandum that the ordinance
in question is not subject to referendum, it would be appropri for the Council to vote to deny the petition. Geiger v. Board
d of Supervisors of Butte County, 48Cal,'2d832,313 P.2d 545 (195
People'sLobby,Inc. v. Board of Supervisors of the County of
Santa Cruz, 30 Cal. App.3d870, 106 Cal. Rptr. 6i6 (1973). T
action would conclude the matter at the City level. If the
Council decides it is subject to referendum, Section 4051 of t . Elections Code.requires that the Council reconsider the ordina
In reconsidering the ordinance the Council has only two option
The first option is that they may entirely repeal the ordinanc
I against which the petition is filed. If the ordinance is not
entirely repealed, the Council is required by Section 4052 of
Elections Code to submit the ordinance to a vote of the people
-
In order for the City Council to be fully informed in regards to their options in dealing with the petition, it is
necessary to further analyze the matter in terms of the extens body of decisional law which exists on the subject of thi! peop
right to the initiative and referendum.
: In 1911 the Constitution of the State of California was
amended to expressly reserve people's right of initiative and . referendum. In that regard, Article IV, Section 1, was added to Che Constitution which detailed those rights, expressly in-
cluding the rights of the voters of a city to subject the legislative acts of their City Council to the referendum proce
This section was, repealed and reenacted as Section 25,of Artic
IV,in 1966. It now provides as follows:
"Initiative and referendum powers may be exercised by
the electors of each city or county under procedures that the Legislature shall provide ..."
Pursuant to the authority contained in the above quoted sectio the California Legislature has provided by general law for the
exercise of the referendum power in municipalities'in Article of Chapter 3, of Division 4, of the California Elections Code,
comniencing with Section 4050. .Since the referendum became par of California's political process, it has been the subject of
great deal of litigation. The courts in dealing with this typ
. of question usually begin with an analysis of the nature of th
referendum power itself. The California Supreme Court has
stated as follows:
"It is well settled that the power of initiative and
referendum, as exercised in this state, is the exercise
I
I
Jtzly 19, 1976
Eonorable Mayor and City Council
Memorandum of Law
Page 4
L
by the people of a power reserved to them, and not the
exercise of a right granted to them (Citations).
that reason, and in order to protect the people of
this state in the exercise of this reserved legislative power, statutory.. .provisions dealing with the refer-
endum should be afforded the same liberal construction afforded election statutes generally." 212 Cal. 587, 299 E. 713, 715 (1931). -
For ..
0 Ley v. Dominquez
The Attorney General of.California has characterized it as fol.:
"The the'ory of the referendum is not that the electors
exercise the veto power upon laws adopted by the
representative body. Rather, that when a proposed law
is protested the people become an'integral part of the
enacting authority.lr 28 Ups. Cal. Atty. Gen. 351 at 355
* Citing Cline v. Lewis, 175 Cal. 315, 165 P. 915 (1917).
It is an established rule of law in California that referendum
provisions are to be liberally construed in favor of the prop01
Gdqm v. Bear.' of SupervLsors, 48 Cal. 2d 832, 839. 313 P. 2d
236 (1972).
people, they should be liberally construed to uphold the power wherever that can reasonably be done. Collins v. City & Count]
of.San Francisco, 112 Cal. App. 2d 719, 247 P. 2d 362, 368 (191 The courts are reluctant, and properly so, to interfere with tl
process. Id. at 369.
545 (1957). Beck v. Piatt, 24 Cal. App. 3d 611, 101 Cal. Rptr Since they deal with the reserved power of the
-
Notwithstanding these broad judicial statements in favor
the referendum power, the courts of California have developed E
number of limitations on the use of the referendum. One of thc
clearest judicial expressions of a limitation on the referendm
power was made by the California Supreme Court
Geiger v. Board of Supervisors of Butte County, Supra.
court in that case unanimously held that a county ordinance im] ing a sales tax was not subject to referendum. There is an ex]
exception from the referendum for acts providing for tax levie!
and the case might well have been decided solely on that qrounc
However, the court went on 30 deal with an argument that since the ordinance was not effective for thirty days, by implicatior
the only purpose of the thirty day delay was to allow the refei endwn process to take place. The proponents of the referendum
cited a number of cases indicating that the referendum power should be liberally construed. The Supreme Court recognized tl
rule, but noted that consideration must also be given to the
in the case of
The
I
b ,
July 19, 1976
Honorable Mayor and City Council
Memorandum of Law
Page 5
consequences of applying it, The Court ruled:
"If essential governmental functions would be seriously impaired by the referendum process the courts in constru-
ing the applicable constitutional and statutory provisioi
will assume that no such result was intended. (Citation - Id. at page 549.
The court continued to explain the reason for the exception wh is to prevent the disruption of the administration of the fisc(
Since the Coui function was to fix a budget and set a tax rate and since that judgment could not be made without an accurate revenue estimatc
it was deemed necessary that the County know when tax ordinanci
will become effective. For that reason the court concluded th
the people had entrusted to their elected representatives the
duty of managing the fiscal affairs of the community and presc
ing the method of raising money.
.powers and policies of the governmental entity.
The most significant limitation on the use of the refere
power is Found in a line of cases hslding that the pover of
referendum may be invoked only with respect to matters that ar
strictly legis]-ative in character. Wheelright v. County of Mar
2 Cal.3d 448, 85 Cal.Rptr. 809 (19701, Johnston v. City of Cla
mont, 49 Cal.2d 826, 323 P. 2d 71 (1958). Stated a different
acts which are found to be administrative or executive are bey the reach of the-referendum process. Simpson v. Hite, 36 Cal.
125, 222 P. 2d 225 (1950); Lincoln Property Co. No. 41, Inc. v e, 45 Cal.App. 3d 230, 119 Cal. Rptr. 292 (1975); Andrews v.
City of San Bernardino, 175 Cal. App. 2d 459, 346 P. 2d 457 (1 McKevitt v. City of Sacramento, 55 Cal. App. 2d 117) 203 P.132
(1922).
stated in the Geiger case discussed above, that to,allow the
referendum to be invoked, to annul or delay executive or admir! trative decisions would destroy the efficient administration c
the business affairs of a city. It is therefore necessary, ir order to determine whether or not the petition at issue is a
proper subject for referendum,to decide whether or not the ore
The reason most often advanced for this rule is the
- constitutes a legislative or administrative act.
The amendment to SP-144 was adopted by ordinance and ordinances are usually assumed to be legislative enactments.
However, it is.well settled that the name given to the action
taken is of no consequence. It is possible to take administrz acts by ordinance and to take legislative acts by motion or
resolution. Hopping v. Council of the City of Richmond,170C; . 605, 150 P. 977 (1915); Walker v. City of Salinas, 128 Cal. RI
832 (1976). One of the best examples of this principle can bc
I
I
July 19, 1976
Honorable Mayor and City Council
Page 6 Memorandum of Law
V
found in the case of O'Loane v. O'Rourke, 231 Cal. App. 2d 774
42 Cal. Rptr. 283 (1965). In that case the court held that a a resolution adopting a general plan for the City of Commerce
was subject to the referendum. The court did so in the face o
the argument that the referendum did not apply since the gener
plan was not a zoning ordinance and had no legislative effect
o and was, therefore, an administrative or executive act and not
subject to the referendum. The court in-O'Loane stated the ru
as follows:
"If the adoption of the general plan is legislative in
character, then the referendurn is available to the people." - Id, at page 208,
The court continued to quote with approval the following rule
62 C.J.S. Municipal Corporations:
,"...'The form or name of an act of municipal authorities
such as whether it is called an ordinance or a resolutio
is not determinative of its legislative or administrativ
nature, with respect to whether or not it is subject to
initiative 2nd rcfcrzndcrc. I" - Id. at pages 288,289.
The question then is what is determinative of the nature of su
acts?
The courts have laid down a series of tests for determin
whether or not a particular action of the City Council is legislative or administrative. The court in O'Loane, again quoting with approval from 62 C.J.S. Municipal Corporations,
stated the test as follows:
'I.. . 'Actions which relate to subjects of a pGrmanent or general character are considered to be legislative,
while those which are temporary in operation and effect are not. Acts constituting a declaration of public
purpose or policy, and making provisions for ways and
means of its accomplishment, may be generally classified : as calling for the exercise of legislative power. As
has been said, the crucial test is whether the proposed
ordinance is one making a new law, or one executing a
law already in existence; and acts which are deemed as acts of administration, and classed among those govern-
mental powers properly assigned to the executive depart-
ment, are those which are necessary to be done to carry
out legislative policies and purposes already'declared by the legislative body, or such as are devolved on it k
the organic law of its existence,'" - Id. at page 289.
J
i
July 19, 1976
Honorable Mayor and City Council
Memorandum of Law
Page 7
In Martin v. Smith, 148 Cal. Rpp. 2d 751, 7 Cal. Rptr. 725
(1960) the court quoted with approval the following rule on
this subject from McQuillan on Municipal Corporations (3d ed.)
"...'The power to be exercised is legislative in its
nature if it prescribes a new policy, or plan, whereas,
a plan already adopted by the legislative body itself, 02 some power superior to it.'" - Id. at page 727.
it is administrative in its nature if it merely pursues
' Another statement of the test is set forth in PlcKevitt v. City of Sacramento, 55 Gal. App. 117, 203 P. 132 (1921) as follows:
"Acts constituting a declaration of public purpose,
and making provision for ways and means of its accom- plishment, may be generally classified as calling for
the exercise of legislative power. Acts which are to
be deemed as acts of administration, and.classed among
those governmental powers properly assigned to the
executive department, are those which are necessary
to he dsne to carry ovt 1egislatiTTe poljcjes and pur-
poses already 6eclared by the legislative body, or such
as are devolved upon it by the organic law of its
. existence." Id. at page 136.
The tests as to whether or not a matter is legislative or admi
trative as set out above have been repeated almost verbatim by
Appellate Courts when they have been called upon to resolve th kind of question. See Reagan v. City of Sausalito, 210 Cal. A
2d 618, 26 Cal. Rptr. 775, 777 (1962).
In applying these tests to the question of whether or no
the adoption of a general plan is legislative or aciministrativ the court in O'Loane v. O'Rourke, Supra reasoned:
"The adoption of the general plan is, in effect, the
adoption of a policy, and in many respects, entirely
character, it is a declaration of public purpose and, as such, supposedly sets forth what kind of a city the
community wants and, supposedly, represents the judg-
ment of the electors of the city with reference to the physical form and character the city is to assume. Unde
the circumstances we can discern no useful purpose which
would be served by preventing the exercise of the
democratic process. Namely, the permitting of a vote
to be taken on the issue by the electorate of the city." Id. at page 289.
- - new policy. The plan is of permanent: and general
-
#
8
July 19, 1976 Honorable Mayor and City Council
Memorandum of Law
Page 8 ..
In McKevitt the action of the City CommTssioners of the City
of Sacramento in voting to purchase a particular park site
was subjected to referendum and the acquisition was turned
down by the voters. After the election the whole matter was
ruled not subject to referendum and the original action of the
c City Council was affirmed on the basis' that the decision was an administrative matter and not legislative and therefore not
subject to referendurn. Applying the tests to the facts of the
case the court held that the city had accepted a bequest of money pursuant to a will to be held in trust for the acquisiti
The court ruled that the acceptance of that reques was the legislative or policy judgment and that the carrying
out of the trust in selecting the particular park to purchase was an executive or administrative dbcision. Martin v. Smith,
Supra involved a dispute in the City of Sausalito over use of
substantial portion of the city's bay front.
question had been granted to the city by the state subject to
a lease for commercial purposes for a yacht harbor. The city
approved a sublease of the land for a bar and restaurant, mote
thc city's actio= was riled invzlid, the cocrt hclding that t
legislative act was the City's acceptance of the land grant.
Determining that a bar and the other uses were preferable to
a yacht harbor, was held to be an administrative act since bot
involved commercial activity which had already been approved b - the city when they accepted the land. Tnboth McKevitt and Mart
the matter involved,a city park and the development of the wat
front, were of significance to the coimunity. Nevertheless, t
legislative decision to have a park somewhere in the community
precluded a referendum on the kind of park or its location and
the legislative decision to have commercial development on the
water front precluded a referendum on the kind of development.
determining if Ordinance No. 9456 is a legislative or administ
act, but it is difficult to formulate a rule which satisfactor
resolves all the questions involved.
states the matter:
. of a park.
The land in
swimming pool, shops and parking. A referendum petition again
.
The above cited cases and tests offer some guidance in
As the Attorney General
"Apparently, the courts make the distinction on a case
by case basis by reference to the traditional way in which governmental functions are classified." 55 Ops.
Atty. Gen. 383 (1972).
In attempting to apply these tests to Ordinance No. 9456, I ca
appreciate the view of the court in Duran v, Cassidy, 28 Cal.
App. 3d 579, 581, 104 Cal. Rptr. 793, 798 (1972) who character them as "amorphous distinction (s) I).
I
8
July 19, 1976 Honorable Mayor and City Council
Memorandum of Law P.age 9
In order.'to apply these amorphous distinctions, it first is.necessary to determine the facts. As Council knows there
Were power generation' facilities with stacks located at Encina
prior to the incorporation of the City,of Carlsbad.
of significance to this matter began in 1971.
E' the Municipal Code was amended to provide; for a P-U Public
Utilities zone. At the sae time portions of the San Diego
' ..Gas & Electric's property surrounding the Encina Plant were
annexed to the city. The entire company holdi.ngs were then
zoned P-U. At ,approximately the same time, August of 1971,
the City Council unanimously adopted Ordinance No. 9279 which
approved a specific plan for the approximately 680 acres of company holdings including the Encina Power Plant. The P-U
zone required that a specific plan be adopted by the City Counc
after public hearings in conjunction with the rezoning of a
adopted included the provision for five electrical generating
units. My review of the Planning Department file and the City' records on the matter indicates that there is no direct
reference to any approvai for the manner of disposing of the
products of combustion resulting from the electrical generation
activity. Condition No.5, of Section 2,0f Ordinance No.9279 di
provide that the height and configuration of future power
generating buildings and structures must conform to the facilit
included stacks since there were stacks already in existence.
It is my opinion that Ordinance- No. 9275 (SP-144) included
. approval of'stacks as the permitted means of disposing of the
products of combustion from the Encina Plant. There is no
,disagreement, I think, that the San Diego Gas & Electric Compan
would he entitled as a matter of right to a building permit
'. for Encina 5 pursuant to the approvals contained in Ordinance
No. 9275 if it could be built using a fifth stack equal in
height and configuration to the four existing stacfrs.
Gas & Electric Company, however, desired to replace the four
existing stacks with one large single stack which would extend
feet above the level of the existing stacks. In accord with
Condition No.5, of Section 2, Ordinance No. 9279 it was necessa
for the company to apply for, and receive, approval of an amend ment to specific plan (SP-144) in order to construct the single
stack. adoption. of Ordinance No. 9456;
The events
During that year
,piece of property to the Public Utilities zone. The plan as
. existing when the ordinance was approved. By implication that .
San Dieg
That approval was granted by the City Council by the
There is no doubt that a referendum may be used as a mean of attacking zoning ordinances enacted under the State Planning
Act. In Johnston v. City of Clarcmont, 49 Cal. 2d 826, 837,
323 P. 2d 71, 78 (1958) the court stated that:
I.
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July 19, 1976
Honorable Mayor and City Council
Memorandum of Law
Paye io
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"...Whenever the Council acts in its legislative
capacity, the action it takes ts subject to the
constitutional right of referendum unless such
action falls into one of the exceptions provided
for in the Constitution.
The right of referendum with respect to zoning
ordinances is essential for the protection of the
rights of the electors of each city."
It is my opinion that the City Council's act of rezoning the
San Diego Gas & Eleciric's property Public Utilities was a
legislative act and subject to the referendum. The question then becomes whether or not SP-l44..vas also a legislative
act. Specific plan (SP-144) was adopted pursuant to Ordinance
No. 9268 which adopted the P-U zone. Section 13.56 of that
ordinance required that the specific plan provide, among
other things, for the identification of which uses would be
permitted on the subject property. In my opinion the operativc
dccisicn in 2 Ian3 use Tatter is the decision which fixes the
uses in the zone. In some cases that is done by the rezoning
of the property.and in other cases the uses are not fixed unti:
a plan is approved. In the Planned Community zone the uses
are -fixed by a master plan with the manner of those uses being
left to precise plan approval. The approval of a master plan
in such cases has been held to be a legislative act. Lincoln
Property Co. No. 41, Inc. v. Law, 45 Cal. App. 3d 230, 119 Cal,
Rptr. 292 (1975). In the P-U zone there is only one plan whicl
accomplishes the functions of a master plan, in that it sets
. precise plan in detaj-ling the manner within which ;hose uses
.. .. -
the uses, and also accomplishes some of the attributes of a
may be developed. It is therefore my opinion that,the origina:
specific plan adopted pursuant to Ordinance No. 9268,fixing
the allowable uses for San Diego Gas & Electric Company proper1
was a legislative act.
._._ We are left with a final question of whether or not the
amendnient (SP-144A) adopted by ordinance No. 9456 was a legislative act. In answering that question it is important
to keep in mind what, in my view, is the most essential fact tc
this whole discussion. And that is the nature of the ordinance before us. Ordinance No. 9456 is an amendment to an existing
specific plan. It does not add or take away any of the uses
permitted for the site in question by the original specific pl;
What it does do is, ,pursuant to Condition 5, of Section 2, of
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July 19, 1976
Honorable Mayor and City Council
Page 11
Memoxandurn of haw
Ordinance No. 9279, approve construction of a structure in emf
of the height of the existing structures. In applying the tesl
discussed above to these facts,it is necessary for us to deter- mine whether or not the approval of the 400-foot stack pre-
scribed a new policy or pursues a plan already adopted by the
City Council. As I have indicated, the original approval of
the Encina Power Plant provided for disposal of the products
of combustion, via smokestacks. Therefore, it is my view that
the City Council in approving the original specific plan with
a method for dispersj-ng the products of combustian. If that i:
so, all that is approved by the amendment of thespecific plan :
a different kind of smokestack. It would be appropriate then
to conclude that the amendment simply carries out the Council':
previously approved plan. That is, disposing of the plant's smoke by stack. The decision of a pernanent or general characl
was to allow the plant with smokestacks; that being the
legislative act. The judgment that the smokestack needed to
be bigger because of stricter air pollution requirements could
be classed as an administrative decision implementing the pre-
viously made legislative judgment. I think the matter could be
seen most cleariy if the coinpanyls applicaticn was Tor a spec?:
plan amendment to allow the four existing stacks to be raised 1 feet. I think it would be beyond argument that the Council's
judgment in approving the power plant with smokestacks had fix(
the legislative policy for the land development in that area, i
would simply be an administrative decision carrying out the
previously made legislative judgment. The same analysis is COI
sistent with the cases cited above. The legis)-ativc judgment
was to have a generating plant with stacks at that location. !
subsequent decision to change the kind of stack was an action
in furtherance of the previously adopted plan.
five electrical geneirator units also approved smokestacks as
that a decision that the stacks needed to be a few feet higher
4
The case most directly on point which supports this anal]
is/Lincoln Property Co. No. 41, Inc. v. Law, 45 Cal. App. 3d 2:
113 Cal. Rptr. 292 (1375). The case involved a development
proposed for the foothills in the City of San Carlos. The pro]
in question had been zoned Planned Community and a master
development plan had been approved. The property changed hand:
following its acquisition by Lincoln Property. The City then
adopted a new master development plan for the land. The devclc
then submitted.a precise plan of development for his project.
that plan to the referendum. The court found that the adoptioi of the precise plan was not subject to referendum. In reachinc
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citizens group sought to subject the City Council's approval 0:
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July 19 1976 Honorabie Mayor .and City Council
Page 12
Memoxandum of Law
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that decision the court discussed almost all of the same cases
which I have discussed previously in this memorandum and noted
that the power of referendum is to be liberally construed when-
ever possible and recognized the exception to that rule that the power only applies to legislative matters. Of ,special
: importance to the court was the test from Martin v. Smith,
Z-ipra, indicating that a legislative judgment prescribes a
new plan wherein an administrative judgment carries out a
plan previously approved. In the court's opinion the legislat: act, governing the subject property, took place when the City
Council approved the new master plan of development. It is important to note that the zoning of the property itself was
not, in the court's opinion, the operative legislative judg-
ment. As I have discussed above, Lle court concluded, as do
I, that in a Planned Community zone the effective legislative
act is the approval of the master plan which fixes the uses for the property. more than the implementation of the previously approved master
plan. The Council's act in zoning the San Diego Gas S. Electric
Property to P-C.. The approval of the specific plan for the
.Encina Plant's ultimate development is directly comparable to
the approval in Lincoln Property of the master development plai
Both such actions were legislative in character and subject to
referendum. The amendment to the specific plan to vary the tyy
and height of a previously approved use is comparable to the
.~ approval in Lincoln Property of the precise plan for the develc
ment, both of which are administrative acts carrying out the
previously approved legislative policy and are, therefore, not
,subject to referendum.
The court found the precise plan to be no
land P-U is directly coxparablc to the zcning in Linccln
4 There is another independent ground which supports the
. Condition No, 5, of Section 2, of Ordinance No, 9279 limited
the height of future power generating buildings and structures to a height and configuration similar to the facilities that
existed at that time,,
on the balance of the company's properties subject to future
specific plan approval. The height limit then for the power
generating building, including the smokestacks , was fixed in
1971 equal to the height and configuration of the existing
facilities sub,ject to exceptions to be granted by specific plar
Johnston v. City of Claremont, Supra teaches that an amendment to a legislative act of necessity must be a legislative act.
Therefore, a rezoning of a property is subject to referendum a:
well as the original zoning. The court in Johnston, however,
.. conclusion that Ordinance No. 9456 was an administrative act.
. A height Limit of 35-feet was imposed.
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Ju3.y 19, 1976
Honorable Mayor and City Council
Memorandum of Law t
Page 13 ..
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also made clear that it is an entirely different situation wher
an ordinance itself confers upon the City Council or an offici;
""die power to grant an easement or variance in particular cases.
The court stating:
a* "In light of.. .the above authori'ties, where the wording of ordinances mast be changed in order to accomplish
.. the desired revision, the act is legislative and not
administrative. On the other hand, where rcgulatj-on
is changed pursumt to a provision of an existing
ordinance permitting an administrative variance on the
finding of certain facts, the act is administrative.
(Citation)". Id. at page 76. -
It is possible to argue that since Ordinance No. 9279, which
sets the height limit by its own terms, provides for exception:
Orhinance No. 9456, approving such an exception, is in the nntL
of a variance and is therefore an administrative act and is no1
subject to referendum. The matter is r,ot beyond doubt since
while the original specific plan ordinance provides for the
exception, it does not provide zny standards. The tctal lack
of standards makes it somewhat difficult to conclude that it i:
an administrative act under the Johnst.on rule.
My research indicates that there are other aspects of thl .- problem which must be considered before reaching a conclEsion
on this matter. The analysis detailed above which leads to a
conclusion.that the ordinance is administrative has some limit:
At some point a difference in degree can be a difference in kir
If I can be allowed a poor metaphor: Assume you have given yo1
son permission to keep two cats in the backyard and that the
family has not previously had any pets. made a legislative judgment to allow your son to have two animz
two cats for two elephants, under the theory they are both anin and you made a decision to allow him to keep animals. The poir
being that at some point the increase in size reaches such a
scale that a new use is involved constituting not the administi
tion of a previous legislative policy but a new policy. In or( to determine if this principle applies it is necessary to turn
the cases that my research have indicated bear most directly or
this issue.
If you will, you have
for pets, However, that 'fact does not allow your son to trade
The issue bef0r.e the court in the case of Millbrae ~- Association for Residential Survival v. City of Millbrae,
262 Cal. App. 2d 222, 69 Cal. Rptr. 251 (1968) was whether
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July 19, 1976 Honorable Mayor and City Council
.Page 14 Memorandum of Law
5
or not the changes in a precise plan approved by the Planning .. Commission were so substantial as to be tantamount to a,re-
zoning of the property. The property in question was zoned
Planned Development. A 'lProject General Plan" was approved
providing for seven 6-story apartment buildings. This plan wa:
'. subsequently amended to provide for three high-rise apartment
L?iildings and seven quasplexes instead of the original seven
-.6-story buildings. The developer then applied for approval of a "Project Precise Plan". The parallels to the previous dis-
cussion of Encina and the Lincoln Property case are obvious;
the procedures are substantially the same. The project genera:
plan required City Council approval but the precise plan was
was approved which made the following changes in the project:
Seven units were added to the high-rise buildings; part of a
pitch and putt golf course was eliminated; parking spaces were
increased and two of the three high-rises were relocated, one
from 70-feet distant to 35-feet distant from the plaintiff's
property. At the tirne of trial two of the quadplexes had been
constructed and $600,000 spent on developing thc site. The tr:
COUI--L invalidated the Planning Copmission apprcval on the grclui
that the changes amounted to a defacto rezoning of the propert]
which could only be accomplished by the City Council. The coui
held as follows:
only subject to Planning Commission review. The pmcke .plan
'*In our view, while the change in the number of
apartments in each of the high-rise buildj-ngs
would properly be the subject of the precise plan
under the ordinance so long as it did not increase
in the general plan, the other changes amoun$ to a
substantial alteration of the general plan since
they materially and fundamentally change the location of two of the high-rise buildings and the
size of the parking areas and the open areas.
-.. These were specific elements of the general plan
the "general size" of the buildings as delineated
. incident to the zoning of the PD district and their change and alteration amounted to a rezoning of the district. We are persuaded to this conclusion by
the very. nature of the PD district. Although the
creation of such a district allows for greater flex-
ibility and diversification in the location of
structures and .other site qualities and their uses, once these elements are delineated in the general
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July 19, 1976
Honorable Mayor and City Council
Memorandum of Law Page 15
0 %
plan they constitute material and 'indispensible
attributes of the district itself. In other
words, the zoning characteristics of the district
consist not only in the classification of the
district to PD but in the components of the
general plan accompanying the application for the
creation of the district and any subsequept amend-
ments to the plan that may properly be adop-ced.
Accordingly, any substantial change or alteration
district and j.ts configuration amount to a rezon- ing of the district and may only be accomplj-shed
pursuant to the provisions of the state statutes
and the local ordinances consisterrk therewith pro-
viding for zoning and rezoning." . __ Id. at payes 267,
268.
.. in the actual phys2cal character;stics of the
The project in llillbrae consisted. of approximakely 16 acres.
For a project of that size eliminating a portion of a small
9015 course aiid mo17ing two l~u~.l.dings were found to be a sub-
stantial change constj:cuting a rezoning of khe propzrty . The
San Diego Gas 6( Electric property is substantially larger
in s.ize (680 acres) than the property in Millbrae. The change
in the San Diego Gas & Electric project ren-loves four existing
stacks from the top of the building and replaces them with a
single stack, larger in diameter, located on the ground and
made that this change 'is greater in scope than the one in
Millbrae and is, therefore, also a rezoning of the property.
Millbrae -- was offered in support of the referendum'in Lincoln ..
Property. The case was found distinguishable on the grounds
that the changes in Millbrae amounted to a "substantial alter-
ation" of the master plan while the precise plan in Lincoln ---
Property decreased rather tha.n increased the general size of
the buildings. This distinction can not be made here since
the change is larger in scope and increases the building size and height. The argument can then be made that the 400-foot
stack is a change in the plan of sufficient size to become a
substantial alteration in the plant as previou.sl.y approved. I
that is so, it is a rezoning of the property; a legislative ac
and is subject to referendum.
extending 210-feet higher into the air. An argu.ment can be
,
The other case in point on this issue was Wheelright v. of Marin, 2 Cal. 3d 448, 85 Cal. Rptr. 803 (1970)T
w6i1 Coul=----r invo GTan attempt by the voters to subject to
referendum an ordinance by the Board of Supervisors of Marin County, The County had rezoned 2,200 acres
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July 19, 1976
Honorable Mayor and City Co?xncil
Memorandum of Law
Page 16
c
of land to P-C, Planned Community, and had by resolution adoptc a master plan for the development of the community. The Marin
County Code required the Board of Supervisors to approve a
.precise development plan for any developments within the plan-
ned community. The ordinance which was the subject of the
referendurn petition was an ordinance approving a precise plan
for a portion of the planned community.
for the construction of an access road into the development.
One of the issues placed directly before the Caliixnia Supreml Court in this case was the question of whether or not that
precise plan ordinance .was subject to referendum. Proponents
of the develoRment argued that the ordinance was passed for thc
purpose of carrying out a previously declared legislative polic
that the planned comaunity should develop and was therefore
administrative and not legislative. The court disposed of tha
contention as follows:
, This plan provided.
"Roadways are of sufficient puhiic interest and
concern to weigh the scales in favor of construing
this ordinance as being legislative and to be we11 within the referendum powers reserved by the people." - Id. at paqes 458, 815.
Justice Mosk dissented from some other aspects of the courts
opinion regarding the way in which the court had construed the
referendum law. In his view the court was taking an unduly
restrictive view of the people's referendum power. He quoted
with approval the statement by the court in the case of McFaddc v. Jordan, 32 Cal. 2d 330, 332, 196 P. 2d 787, 788(1948) as
follows: -
"...'The right of initative is precious to the
people and is one which the courts are zealous
to preserve to the fullest tenable measure of spirit
as well as letter. 'I1
Mosk, notwithstanding his dissent, agreed with the majority thl
the ordinance in question was subject to referendum. Wheelrig
turned on the fact that the precise plan approved an access
road which had not been considered in the earlier adopted mast
plan. The court in Lincoln Property distinguished it on that
basis, noting that tile decisive factor was that the addition o the road was a substantial change in the previously approved
plan. If the stack is determined to be such a substantial
change which had not previously been considered the rule of
Wheelright would apply and the ordinance would be subject to
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July 19, 1976 Hor?.orahle Mayor and City Council
Mernorandum of Law
Page 17, '
referendum. An argument can be made that the changes in the
plant are of sufficient scale and involve sufficient impact on the surrounding property and the community to bring the case
vithin the rules of VJheelright and l4j.llbrae.
After considering all of the above discussed authorities,
a your attorney is inclined to think that it is more likely than
not that a court would determine that Ordinance No. 9456 was
and administrative act. There is more authority for tha.t
position than the reverse. There is no doubt that the Council
has approved five generating units and has approved stacks as
the means to dsspose of the products of combustion from those
units. The decision on what kind of stack seems to me to he
carrying out the previously approved plan and not to involve
some new plan. It must, however, be recognized that this is
a matter upon which reasonable people can differ. I think the
Council would be justified in reaching's contrary conclusi-on.
What is a "substantial change" after- all, but a judgment which must be to some extent subjective whether it is made by your
attorney, the Council or a court.
If the City Csunzil Is satisfied, based on the advice
in this memorandum, that my view that Ordinance No. 9456 was -an ad.ministrative act is correct, your .action would he by motic to reject the petition on the grounds that the ordinance is not
subject' to referendum. If the City Council .finds the arguments
for'the referendum persuasive,-your action would be to reconsid the ordinance and either repeal it or call an election. If the
Council is not sure whether or not the referendum applies there is a lj-ne of cases dealing with the initiative power which hold
that the proper action in such cases is to resolve the doubts
argue these cases do not apply to referendum but iq my opinion
the principles involved are the same. In Mulkey v. Reitinan,
64 Cal. 2d 529, 50 Cal. Rptr. 881 (1966) the California Supreme Court stated its view that questions of whether or not a nieasur
can be validly voted on should be decided after the election.
In Farley v. Healey, 67 Cal. 2d 325, 62 Cal. Rptr. 26 (19671, I
same court overruled a challenge to a ballot measure on the Vic
Nam War. The court ruled it was not the place of ministerial
officers to decide on the validity of ballot measures:
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. in favor of the people's right to vote. It is possible to
"These questions may involve difficult legal issues
that only a court can determine." Id. at page 28.
The court concluded that such measures should go on'the ballot
unless a court directed otherwise. The rule of these two case:
has been softened by subsequent decisions by lower courts. In Gayle v. Ham, 25 Cal. App. 3d 250,. 101 Cal. Rptr. 628 (1372)
a County 'Clerk, on advice of the County Counsel, declined to
process an initiative petition. The court h$ld that they had
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July 19, 1976
Eonorable Mayor and City Council Memorandum of Law
Page 18
no mandatory duty to decide whether or not the measure was
invalid before the election and ordered the Clerk to put
Keep it off the ballot in some cases but only where it was "clear beyond question" that the measure would be invalid if
z enacted. The normal process should only be shortcut where the "...invalidity of the proposed xeasure is clear beyond a doubt
.- I?. at page 634. nuran v. Cassidy, 28 Cal. App. 2d 574, 104 Ca
Rptr. 793 (1972) is to the same effect. That case i-nvolved an
initiative seeking to preclude the City of Visalia from owning
and operating .a public golf course at a city park.
Clerk refused to process the petition. The court he1.d that
since they were unable to find that the proposed ordi-nance was
patently i.nva1j.d and in the absence of compelling reasons for judicial interference with the people's right to initiative,
. the peti.t.ion should he processed. Again the court stated the
rule as follows:
.it on the ballot. The court noted that it would be proper to
The City
'I.. .Ne have no alternative but to command respondent
to accept the petition and to perform his duties
in connection therewith unless we find that, beyonci
questior,, the proposed ordinance is invalid.'' Id. at
pages 580, 798.
While I have concluded it is more likely than not Ordina
No, 9456 is an administrative act, I am not able to say that i
would find it to be legislative. The cases just discussed wou
then seem to compel me to advise you to reconsider the ordinan
For two reasons I decline to do so. First, 'inthe case most directly in point on the basic issue of this memorandum, Lincol Property Co. No. 41, Inc. v. Law, Supra, the couri completely
ignores all of these initiative cases in reaching its decision
that the referendum did not apply and a hearing was-denied by
the California Supreme Court. Second, the precedential value
of the cases has been called into question by the case of
Peop3.e'~ Lobby, Inc. v. Board of Supervisors of the Count:>' of
Santa Cruz, 30 Cal. App. 3d 869, 106 Cal. Rptr. 666 (1973). A
issue was an initiative ordinance containing a number of restrictions on development along the Santa Crux coastline.
The Board of Supervisors voted not to put it on the ball.ot- and
the proponents'sued. The court affirmed the ruling of the tri court that the proposed measure was invalid and that no electi
was necessary. In reaching their decision the court recognize
the rules of Mulkcy v. Reitman, Supra, Parley v. IIealey, Supr
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.. so beyond question or doubt. It is entirely possible a court
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JU3-y 19, l976
Hoaornble Mayor and City Council Memorandum of Law
Page 19 , '
and Gayle v. Ham, Supra, but nevertheless conclu.ded that sinc
the trial court had decided the matter on the merits, before the election, they would too. A hearing in the,S.upremc Court
t1a.s also denied in this case although JusticesMosk and Tobrine
would have heard the matter. The fact is that-despite strong judicial statements in favor of the in,Ltiative ard referendum
4 pover in cases like Mulkey, Farley and Gayle, local government
bodies continue to vote not to put things on the ballot and on
many occasions those actions have been sustained by the courts
The discussion to'this point should give the City Counci
sufficient guiCiance to allow your body to make a decision as
to whether or not Ordinance No. 9456 is subject t.o referendurn.
In this case, as a result of an opinion from the Fair Politica
Practices Commission, the Mayor will not be allowed to partici
It seems to me the votes required for the various options befc
the Council should be discussed. There is no recIuirerncnt that
the Council formally vote to accept a referendum petition. Th
Clerk's certification of the results of her examination of the
petition, if they find that the requirements for a referendum
pztitior, have Seen Ret, is sufficient in itself to place the
matter before the City Council for action. If the petition is
in proper form, .and if the Council determines it is a proper
matter for referendum, the Council's duty becomes a ministeria
one.. You have only two choices.. .to repeal the ordinance or
to call the election. Therefore, a two to two or tie vote on
* a motion to table or file the petition would constitute no
action. A tie vote would noi; be sufficient to file or table .. the matter.. The petition would then be properly before the
Council and they would be required to exerci,se one of the two
remaining options. A majority of the quorum is sufficient for
the motion to table or file the petition. With four voting
members, three "yes" votes would be required for sqch action.
With three voting members a 2-1 vote would be sufficient. The
same vote requirements would apply to the option of .calling
an election. If the Council elects the option of repealing
the ordinance, three affirmative votes would be required in
order to accomplish that action. (California Government Code
Section 36936). In the event a two to two vote on any of the
options would prevent Council action, it is my opinion that
should any interested parties seek recourse to the courts, a
writ of mandate could be obtained ordering the City Council
to exercise it,s discretion in the matter and either call the
election or repeal the ordinance. It is also possible the COL
that the referendum did not lie. would reach the merits of the matter directly and determine
It also seems to me that some of the consequences of thc
exercise by the Council of the various options should be
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8
July 19, 1976
Hohorable Mayor and City Council
Memorandum of Law
Page 20
discussed. As long as the petition remains unresolved, Ordinal
No. 9456 wi.11 remain suspended. If the Council votes to file
fhe petition and that action is not challenged in court the
. matter is resolved. -The ordinance V70Uld become effective and
building permits could issue. If. any concerned -individual desi:
to challenge that decision, the appropriake mechani.sm in my
a opinion would be a petition for writ of xandate to the Superio:
Court, asking the court L? issue a writ commanding the City
Council to consider the petition on its merits a.nd to carry ou'
its statutory obligation to reconsider the ordinance and eithe: repeal it or submit it <o the voters. The ordinance would rerna.
suspended Ciuririg the pendency of such action and would not becc
effective until it was fina1l.y resolved. If the Council deter]
to repeal the ordinance your action is to direct your attorney to prep ar e the necessary documents.. .If the ordinance is
repealed the Council nay not reenact it for a period of one ye(
(California Elections Code, Section .4052) .
The option of calling an election is more complicated.
Since there is no regular municipal election occurring within .
the voters at a special municipal election. This'election mus
after the date of the City Council's decision on the matter. i
special.municipa1 election must be administered by the City C11
and.results in some substantial costs to the City of Carlsbad.
It is possible to act to consol5date a special municipal elect
with other elections, -In that event the election is administe.
by the Registrar of Voters and the costs to the City are minim
The City Clerk has informed me that if the City Council makes
this decision in regards to the petition after the 5th of Augu
and before the 20th of August it would be possible to consolid
the special municipal election with the November general elect
If the City Council wishes to call an election it is my recom-
mendatj.on that you direct the-City Attorney to return with the
necessary documents at your August 17, 1976 meeting. If any
interested party desired to challenge that decision, in my opinion the appropriate mechanism would be an action in Superi
Court seeking to enjoin the election. In the eventthe electio
is called, the ordinance does not become effective until a
majority of the voters,voti.ng 011 the ordi-nance, vote in favor it. .If a majority of voters vote against it, the ordinance may not be again enacted by the Council for a period of one ye
Section 4052). In the event the City Council determines to
.. .. Lili-Le liiniis se-- iil tlie sf-a.tut-, the --&X- llluLLer nust bc szhzittcd t!
be held not less than seventy-four, no more than eighty-nine d,
*
. after the date of the election (California. Elections Code,
. have an election, I will advise you further in regards to the
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July 19, 1976 Honorable Mayor and City Council
Memorandum of Law
.Page 21 *
form of the measure, arguments for and against th.e proposal,
documents on August'17, 1976.
.,an.d other matters incidental thereto when I return with the
10 I regret that there is no simple- answer to this matter.
The Council should understand that i.t is.'not unusual that a
City Attorney's opinion ii' a City Council's decision, for
that matter, is not sufficient to resolve these kinds of controversies. It is perfectly appropriate that the final
decision rest ,iqith the courts.
putes in this comitry. This is a matter of importance and
one upon which reasonable people can differ. Almost by
definition the courts are the proper form to reach a decision
in that kind of matter. One would hope that wou1.d not lie
necessary but in this case that dccisri,on rests in the hands
of,'other than those of the City Council. Recognj-zing all of
thc above, it is my advice that the City Council consider this
opinion as just one of the matters bearing on the decision
and reach a judgment based on their own view of what is best
for the communi'ry. In my opinion there is support in the law
for any decision the Council night make and I am prepared to
defend any such decision.
..
That is how we resolve dis-
VINCENT F. BIONDO, JR..
City Attorney
. VFB/nila
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3) Q
WORDEN & WILLIAMS
ATTORNEYS AT LAW
AREA CODE 7
TELEPHONE 755-
D DWIGHT WORDEN POST OFFICE BOX 825
W SCOTT WILLIAMS 117 WEST PLAZA,SUITE I
SOLANA BEACH, CALIFORNIA 92075
August 24, 1976
Margaret Adams
Carlsbad City Hall
1200 Elm Street
Carlsbad, California 92008
Dear Margaret:
Thank you very much for supplying us with certified copies of materials we requested concerning the SDG&E 400
foot stack, It obviously took a considerable amount of time
and effort, and we appreciate it. I am sure these materials will aid all parties in arriving at a just resolution of the
pending lawsuit.
Sincerely,
WORDEN & WILLIAMS 6, & l;&&
D. DWIGHT WORDEN
DDW/krf
5: i:
L. RECEIVE3
ABBG 3 1 1975
GlPY CLERK'S i4brlCt cm QE WRLSBAD
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(I -- e
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cb
ss. STATE OF CALIFORNIA:
COUNTY OF SAN DIEGO:
. I, MARGARET E. ADAMS, City Clerk of the City of Carlsbad,
County of San Diego, State of California, hereby certify that
I have compared the foregoing copies of the document4$ and
material attached x. and as listed, which original copies are on
file in the Planning Department and the City Clerk's office;
that the same contains a full, true and correct transcript
therefrom and of the whole thereof.
WITNESS my hand and the sea7 of said City of Carlsbad,
this 6th day of August, 1976.
F- k&&* C ,' City Clerk c I
(SEAL)
I 1 e __ 0
PLANNING COMMISSION
1. Minutes of Planning Commission meeting held January 28, 1
2. Portion of Minutes of Planning Commission meeting held
3. Minutes of Planning Commission meeting held March 24, 197
February 25, 1976,
with the following attachments:
a. Air Pollution Control District, County of San Diego,
Testimony before the Carlsbad Planning Commission on
Encina 5 Power Plant 3/24/76.
Planning Commissioners from Sarah F. Todd and Howard
G. Todd, opposing the stack.
c. (Liston Biography) - Statement of Dr. Liston of Stanf
Research Institute - Brief statement of education and
experience in air pollution studies (since 1954 in Lo Angel es).
4. Planning Commission Resolution No. 1224 adopted at a regu
b. Letter dated 3-24-76 addressed to City of Carlsbad
meeting of the City of Carlsbad Planning Cornmission held March 24, 1976.
5. Portion of Minutes of Planning Commission meeting held
6. Public Safety Element, City of Carlsbad General Plan date
7. Land Use Element, City of Carlsbad General Plan dated
8. Circulation Element, City of Carlsbad General Plan dated
9. Parks and Recreation Element, City of Carlsbad General P1
10. Noise Element prepared by City of Carlsbad Planning Depar
11. Open Space and Conservation Elements, City of Carlsbad Ge
April 14, 1976.
February.1975.
October 15, 1974.
May, 1975.
dated February 25, 1975.
Plan dated December 20, 1973 (Final Draft Revised).
12. Geologic & Seismic Safety Element, City of Carlsbad dated
13. Scenic Highways Element, City of Carlsbad General Plan da
14. Housing Element of the General Plan.
March 1975.
February 1975.
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15. Zoning Map
16. Land-Use Plan map
HUgUSt b, IYIb 0 _- 0
CARLSBAD CITY COUNCIL
1) Certified copy of the Minutes of the regular meeting of the Carlst
2) Certified copy of the Minutes of the adjourned regular meeting of
3) Certified copy of the Minutes of the regular meeting of the Carlsb
4) Certified copy of the Minutes of the regular meeting of the Carlsb
City Council held April. 20, 1976,
Carlsbad City Council held April 27, 1976.
City Council held May 4, 1976.
City Council held July 20, 1976.
The following 'list of matevials are certified by one Certification, as being true and correct capies,
5) Letter addressed to Paul D. Bussey, City Manager, Carlsbad, signed Jack E. Thomas, VP, Power Plant - San Diego Gas & Electric, dated March 12, 1976.
Letter addressed to the City of Carl sbad Planning-Commission, signe
by Donna Flanders, 2168 Chestnut Ave,, Carlsbad, dated March 17, 1G
Letter addressed to Don Agatep, Planning Director, Carlsbad, sign&d Richard H. Baldwin, Chief, Surveillance & Enforcement Division, APC San Diego, dated March 15, 1976,
Letter adressed to Carlsbad City Councl'l, signed by George lol. Dayto 3535 Linda Vl'sta Dr., Vista, received April 13, 1976,
Three postcards addressed to Carlsbad City Council, signed by Vicki Zamora, 3557 Madison, D. Tell, 5119 Los Robles, and Kathy Tell y 511 Los Robles Dr., Carlsbad, postmarked April 19, 1976.
Letter addressed to Paul D. Bussey, City Manager, signed by Jim Bow( President, Carlsbad Community Cause, dated April 27, 1976.
Letter addressed to Jack E. Thomas, VP, Power Plant Engineering and Construction, SDG&E, signed by James T. Bowen, President, CCC, date( May 4, 1976.
Letter addressed to SDG&E Customers, signed by Robert E, Morris,
President, SDG&E, dated May 6, 1976.
Letter addressed to Robert E. Morris, President, SDG&E, signed by James Bowen, President, CCC, dated May 12, 1976.
Copy of proposed Petition for Referendum on Carlsbad City Ordinance
No. 9456, with attached copy entitled "Purpose of the Referendum", f
by City Staff to Carlsbad City Council on May 17, 1976.
Letter addressed to Mayor and City Council , signed by Mrs. Grace*For
3700 Highland Dr., Carlsbad, dated July 9, 1976.
Letter addressed to Mayor and City Council y signed by E,J. Stingley,
3334 Seacrest Dr., Carlsbad, dated July 12, 1976.
Letter addressed to Carlsbad City Council, signed by E. C. Williamsoi 1530 Sunrise Circle, Carlsbad, dated July 12, 1976.
6)
7)
8)
9)
10)
11)
12)
13)
14)
15)
16)
17)
e to LarisDaa Lornrnunity L e re: >uG&E 400_' Stack
Page 2 August 6, 1976 c113
18)
19)
Letter addressed to Mayor and City Council, signed by Grace F.
Mamaux, dated July 9, 1976.
Letter addressed to Mayor and City Council, signed by John Silberbf
3371 Donna Dr., Carlsbad, forwarded by City Staff to City Council July 14, 1976.
Letter addressed to Carlsbad City Council , signed by Walter Drake, dated July 14, 1976.
Letter addressed to Carlsbad City Council , signed by George Sutton, 1314 Minnesota, Oceacside, dated July 15, 1976.
Letter addressed to Carlsbad City Council, signed by Kathrine G. Ch 3147 Jefferson Sit. #5, Carlsbad, dated July 15, 1976.
Letter addressed to Carlsbad City Council , signed by Richard L. Cha 3147 Jefferson St., Carlsbad, dated July 15, 1976.
Letter addressed to Carlsbad City Council, signed by C.D. Housman,
3275 Maezel Laneg Carlsbad, dated July 16, 1976 and Wotation of pho
re: call Chamber received from Mr. and Mrs. Lundine.on July 22, 197
Letter signed by R. Marron, S. Marron,-J, Marron, G. Jasmer, C. Mil T. Blakley, B. Dye, C. Klatt, C. Marron, and J. Higgins, forwarded Carlsbad City Council by City Staff and received July 20, 1976.
Letter addressed to Robert Frazee, Mayor, and City Council , signed Robert H. Sonneborn, dated July 16, 1976.
Letter addressed to City Council , signed by John A. Gray, 5451 Los
Robles Dr. Calsbad, dated July 16, 1976.
Letter addressed to City Council , signed by Adrian C. Johansson y with notation addressed to Mrs. Casler and City Council, signed by Helen L. 3ohansson, 2398 Cipriano Lane,<Carlsbad, dated July 16, 19
29) Two letters addressed to Carlsbad City Council , 1) signed by Wayne 5359 Don Ricardo Dr., Carlsbad, dated July 17, 1976, and; 2) signed
Ivan T. Green, 6535 Easy St., Carlsbad, dated July 17, 1976.
Letter addressed to Carlsbad City Council , signed by Elsie R. Cloud
3430 Highland Dr., Carlsbad, dated July 18, 1976.
Letter addressed to Carlsbad City Council, signed by Michale C. Har Le Roy F. Morris, Harris G. Smith, Carlsbad, dated July 18, 1976.
Letter addressed to Carlsbad City Council, signed by Mr. and Mrs. R M. Kelley, 1475 Pine Ave., Carlsbad, dated July 18, 1976.
Notation of Telephone Call received by the City Manager's Office fri Mr. Paul Warren, on behalf of himself & his wife, dated July 19, 19
Letter addressed to Carlsbad City Council , signed by H. Howard Coll
3435 Valley St. , Carlsbad, forwarded to City Council by City Staff I July 19, 1976.
Postcard signed by William H. Strong and Carolyn W. Strong, 3307 Do
Drive, Carlsbad, postmarked July 19, 1976.
Postcard signed by Mary E. Darling, 3309 Donna Dr. , Carlsbad, postm
Letter addressed to Carlsbad City Council, signed by Mr. and Mrs. C R. Piety, Mr. and Mrs. Glen Wright and Mr. and Mrs. Joseph C. McGeh dated July 19, 1976.
20)
21 )
22)
23)
24)
call received by City Clerk's Office from Carlsbad Chamber of Come
25)
26)
27)
28)
30)
31 )
32)
33)
34)
35)
36)
37)
July 19, 1976,
0 to carisDaa Lommunity Caus : SDG&E 400' Stack
Page-3 -
August 6, 1976 ell"
38)
39)
40)
41)
Letter addressed to Carlsbad City Council, signed by Emma R. Salser
4120 Park Dr., Carlsbad, dated July 20, 1976.
Letter addressed to Carlsbad City Council , signed by Tom McMahon ,
4028 Park Dr., Carlsbad, received by City July 20, 1976.
Letter addressed to Carlsbad City Council, signed by Mrs. D. Hedric
3342 Donna Drive, Carlsbad, dated July 19, 1976.
Telephone notation received by City - conversation with Keith Kenne
2319 Caringa Way, Carlsbad and -Homer Davis, 1794 Basswood, Carlsbad
received July 20, 1976.
MISCELLANEOUS
42)
43)
44)
Report addressed to "Files" from Dick Baldwin, APCD, subject: SDG&E
Encina", dated March, 7976, and marked "Attachment C".
Report to City Manager from Planning Department re: Case No. SP-144
Applicant: SDG&E, dated April 12, 1976.
Notice of Hearing before the San Diego Air Pollution Control Distri
State of California - No. Pet. 607 - Air Pollution Control District San Diego County, Petitioner vs San Diego Gas & Electric Company, Respondent, dated April 19, 1976.
Draft copy of City Council Minutes of Its regular meeting held May 45)
46) City of Carlsbad - Final Environmental Impact Report (Final EIR #20 entitled "Fkinal EIR #205 - Single Stack Modification Project for En
Power Plant" (copy)
Certified copy of Ordinance No. 9456 of the Carlsbad City Council,
May 4, 1976.
Communication from Member-of Carlsbad Community Cause received at t of Public Hearing-on April 20, 1976 re: SDG&E Stack.
47)
48)
SPEAKER'S TESTIMONY.
The following is a list of written testimony by persons who were heard b:
Carlsbad City Council at the Public Hearing held April 20, 1976 re: SDG&I request for construction of a 400' Stack in connection with Encina #5.
49)
50)
51)
52)
Testimony by Dick Baldwin, APCD, San Diego County.
Testimony by Ruth Honnold on behalf of League of Women Voters of Sat Diegui to.
Statement by Vicki E. Zamora, representing Catrrlsbad Comunity Cause
Statement by Donna Flanders, representing Carlsbad Community Cause F Team.
53) Testimony by R. G, Lacy, representing San Diego Gas & Electric C6mp;
MISCELLANEOUS
54) Hearing before the Board of the San Diego Air Pollution Control Disl State of California - Air Pollution Control District of San Diego Cc
Petitioner vs. San Diego Gas & Electric Company, Respondent.
e L12b wI I~lc~eridi~, as r estea to Carlsbad Community C@e re: SDG&E 400" Stack August & '1976
'Page 4
Miscellaneous (cont. )
55) Communication from Carlsbad Community Cause requesting postponemeni continuation of Public Hearing of April 20, 1976, read at Public Hearing of April 20, 1976 by the City Clerk of the City of Carlsbac - - -- -- - -- - - -
a 0
CAREBAD
COMMUNITY
CAUSE F.O. Box
CAR LSB AD,
August 9, 1976
Ms. Margaret Adams
Clerk
City of Carlsbad
1200 Elm
Carlsbad, CA. 92008
Dear Ms. Adams:
Many, many thanks for your kind attention and patience in handling our endless requests during the past few
weeks with regard to the referendum.
We want you to know that Carlsbad Community Cause is
very appreciative of the excellent manner in which you
and your staff have assisted us in this most significant and important issue.
Secretary
0 a
CITY OF CARtS
1200 ELM AVENUE CAR LSBAD, CALI FORN I A 92008
(714) 729-1181
VINCENT F. BIONDO JR.
July 19, 1976 CITY ATTORNEY
HONORABLE MAYOR AND CITY COUNCIL OF THE
CITY OF CARLSBAD, CALIFONJIA
Memorandum of Law Re: Petition Protesting tho, Adoption of Ordinance No. 9456 which Amended Specific Plan SP-144 to
Permit the Construction of a 400-foot Single Stack to Replace
Four Existing Stacks at the San Die90 Gas & Electric Company's
Encina Power Plant.
On X&y 4, 1975 the City Co~ncil of the City of Carlsbad,
California adopted Ordinance No. 9456 which amencied Ordinance
No. 9273 by amending the Specific Plan adopted thereby to permi
the construction of a 400-foot single stack to replace the four
existing stacks at the San Diego Gas & Electric Company Encina
Power Plant. On June 2, 1976 a petition for a referendum on
Ordinance No. 9456 was submitted to the office of the City Clei
This Memorandum is to advise the City Council on the law as it
applies to the petition and to the options available to the
Council in reaching a decision on the matter.
The petition was filed pursuant to Section 4051 of the
California Elections Code, which provides that if a petition
protesting against the adoption of an ordinance is submitted to
the Clerk within thirty days of the adoption of the ordinance
and if the petition is signed by the required number of regis-
tered voters, then the effective date of the ordinance is suspe The duties of the City Clerk in dealing with such petitions are
detailed in Sections 4051.1, 4051.2 and 4051.3 of the Elections
Code. Pursuant to Section 4051.1, the City Clerk is first re- quired to determine the total number of registered voters in th
City of Carlsbad as last officially reported to the Secretary
of State by the County Registrar of Voters.
the Registrar of Voters of the County of San Diego it was deter
mined that there are 9,673 such voters in the City of Carlsbad.
The second step is for the Clerk to count the number of signatu
as they appear on the petition, taking them at face value if a1 the blanks on the petition are filled out, disregarding any
By certificate of
s
I
L e (I,
July 19, 1976 Honorable Mayor and City Council
Memorandum of Law Page 2
signature which is not accompanied by a date, a precinct numbe
and address for the person signing. The initial prima facie co .by the City Clerk, indicated that the petition contained 1,930
signatures. This figure was substantially in excess of the 96
or 10% of the total registered voters required for a referendu petition. Therefore, the petition was formally accepted for
filing on June 9, 1976. When a referendm petition is filed
Section 4051.2 of the EITctions Code requires that the Clerk
examine it further to determine the validity of the signatures
Pursuant to law the City Clerk exercised her option to have tht
petition examined by th'e Registrar of Voters of the County of San Diego actZng as her deputy. The Registrar was asked to
examine the petition as required by Section 4051.2 to determint whether or not each signature on the petition was a genuine
signature of a properly registered and qualified voter of the
City of Carlsbad, accompanied by a proper date, street address
and precinct number. That examination was completed on July 7
1976, within the time limits prescribed by Section 4051.3 of tl
Elections Code. The examination of the Registrar of Voters
indicated that the petition consisted of 230 sections, contain.
ing 1,926 total names. Of that total 1,826 were found to be vallia signatures oE properly qualified electcrs of the City cf
Carlsbad. The petition, with the Clerk's certificate and the
results of the Registrar's examination attached, will be pre-
sented to the City Council at your meeting of July 20, 1976.
e
I have examined the petition and the Clerk's Certificate
of Examination and have concluded that the petition is in prop6 form for presentation to the City Council. The petition will
appear on your agenda as a regular agenda item. A public hear- ing is not required. The Council may determine that further
public input is necessary. They certainly are not required to
do so. If the Council wishes to hear from the public they may,
subject to such terms and conditions as the Council might wish to impose. The matter could be scheduled for a subsequent Counc
meeting or the Council could receive the input Et the meeting c
the 20th. As long as the City Council is proceeding in a reasc
able manner, there are no statutory time limits within which tk.
Council's decision on the petition must be made. The manner ir
which the Council chooses to proceed in reaching their decisiop on the petition is within the discretion of the Council.
The initial determination to be made by the City Council
when faced with a petition protesting the adoption of an
#
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July 19, 1976
Honorable Mayor and City Council Memorandum of Law
Page 3
ordinance is whether or not their decision is subject to the
referendum process. If the Council is satisfied based on the
legal advice contained in this memorandum that the ordinance
in question is not subject to referendum, it would be approprie
for the Council to vote to deny the petition. Geiger v. Board of Supervisors of Butte County, 48 Cal, 2d 832, 313 P.2d 545 (195;
People'sLobby,Inc. v. Board of Supervisors of the County of
Santa Cruz, 30 Cal. App. 3d 870, 106 Cal. Rptr. 6iS (1973). Tf-
action would conclude the matter at the City level. If the Council decides it is subject to referendum, Section 4051 of tk. Elections Code requires that the Council reconsider the ordinar In reconsidering the ordinance the Council has only two options The first option is that they may entirely repeal the ordinance
against which the petition is filed. If the ordinance is not
entirely repealed, the Council is required by Section 4052 of t Elections Code to submit the ordinance to a vote of the people.
In order for the City Council to be fully informed in
regards to their options in dealing with the petition, it is necessary to further analyze the matter in terms of the extensi
right to the initiative and referendum, body 01 decisionili law which exists on the subject of 'ihd beep:
In 1911 the Constitution of the State of California was
amended to expressly reserve people's right of initiative and referendum. In that regard, Article IV, Section 1, was added
to the Constitution which detailed those rights, expressly in- cluding the rights of the voters of a city to subject the legislative acts of their City Council to the referendum procez
This section was repealed and reenacted as Section 25,of Articl
IV,in 1966. It now provides as follows:
"Initiative and referendum powers may be exercised by
the electors of each city or county under procedures
that the Legislature shall provide. . . '*
Pursuant to the authority contained in the above quoted sectior
the California Legislature has provided by general law for the
of Chapter 3, of Division 4, of the California Elections Code, commencing with Section 4050. Since the referendum became part
of California's political process, it has been the subject of E
great deal of litigation. The courts in dealing with this type of question usually begin with an analysis of the nature of thc referendum power itself. The California Supreme Court has
stated as follows:
exercise of the referendum power in municipalities'5.n Article I
"It is well settled that the power of initiative and
referendum, as exercised in this state, is the exercise
r
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July 19, 1976
Eonorable Mayor and City Council
Kernorandm of Law
Page 4
by the people of a power reserved to them, and not the exercise of a right granted to them (Citations). For
that reason, and in order to protect the people of
this state in the exercise of this reserved legislative powex, statutory ...p revisions dealing with the refer-
afforded election statutes generally." Lcy v. Dominquez
212 Cal. 587, 299 t. 713, 715 (1931).
The Attorney General of*CaZifornia has characterized it as fol
P endum should be afforded the same liberal construction
"The the'ory of the referendum is not that the electors
exercise the veto power upon laws adopted by the representative body. Rather, that when a proposed law is protested the people become an integral part of the
enacting authority,ii 28 Ops. Cal. Atty. Gen, 351 at 355,
Citing Cline v. Lewis, 175 Cal. 315, 165 P. 315 (1917).
It is an established rule of law in California that referendum
provisions are to be liberally construed in favor of the propor Geiqer v. Board 01 Skpervisors, 4s Cal. 2d 532, 839, 313 P. 2d
545 (1957). Beck v. Piatt, 24 Cal. App. 3d 611, 101 Cal. Rptr,
236 (1972). Since they deal with the reserved power of the people, they should be liberally construed to uphold the power
wherever that can reasonably be done, Collins v. City & Count:
of San Francisco, 112 Cal. App. 2d 719, 247 P. 2d 362, 368 (19'
The courts are reluctant, and properly so, to interfere with tl
process. - Id. at 369.
-_---- ---_II--- ~~__
Notwithstanding these broad judicial statements in favor the referendum power, the courts of California have developed E
number of limitations on the use of the referendum. One of the
clearest judicial expressions of a limitation on the referendun
Geiger v. Board of Supervisors of Butte County, Supra. The
court in that case unanimously held that a county ordinance imF
inq a sales tax was not subject to referendum. There is an exg exception from the referendum for acts providing for tax levies and the case might well have been decided solely on that grounc
However, the court went on to deal with an argument that since
the ordinance was not effective for thirty days, by implication
the only purpose of the thirty day delay was to allow the refer endum process to take place. The proponents of the referendum
cited a number of cases indicating that the referendum power
should be liberally construed. The Supreme Court recognized th
rule, but noted that consideration must also be given to the
power was made by the California Supreme Court in the case of
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July 19, 1976
Honorable Mayor and City Council Memorandum of Law Page 5
consequences of applying it. The Court ruled:
“If essential governmental functions would be seriously
impaired by the referendum process the courts in constru-
ing the applicable constitutional and statutory provisior will assume that no such result was intended. (Citation)
- Id. at page 549.
The court continued to explain the reason for the exception whi is to prevent the disruption of the administration of the fisc?
powers and policies of the governmental entity. Since the Cour
function was to fix a budget and set a tax rate and since that
it was deemed necessary that the County know when tax ordinance
will become effective. For that reason the court concluded thc
the people had entrusted to their elected representatives the duty of managing the fiscal affairs of the community and prescr
ing the method of raising money.
judgment could not be made without an accurate revenue estimate
The most significant limitation on the use of the referer
power is found in a line of cases holding that the power of
referendum m3y be in~70ked on1.y with respect to matters that arc
strictly legislative in character. Wheelright v. County of Marj 2 Cal.3d 448, 85 Cal.Rptr. 809 (1970), Johnston v. City of Clai mont, 49 Cal.2d 826, 323 P. 2d 71 (1958). Stated a different P
acts which are found to be administrative or executive are beyc
the reach of the-referendum process. Simpson v. Hite, 36 Cal. 125, 222 P. 2d 225 (1950); Lincoln Property Co. No. 41, Inc. v, Law, 45 Cal.App. 3d 230, 119 Cal. Rptr. 292 (1975); Andrews v.
City of San Bernardino, 175 Cal. App. 2d 459, 346 P. 2d 457 (15 McKevitt v. City of Sacramento, 55 Cal. App. 2d 117, 203 P.132 (1922). The reason most often advanced for this rule is the c
stated in the Geiger case discussed above, that to,allow the
referendum to be invoked, to annul or delay executive or adminj trative decisions would destroy the efficient administration oi
the business affairs of a city. It is therefore necessary, in
order to determine whether or not the petition at issue is a
proper subject for referendum,to decide whether or not the ordj constitutes a legislative or administrative act.
The amendment to SP-144 was adopted by ordinance and ordinances are usually assumed to be legislative enactments.
However, it is.well settled that the name given to the action
taken is of no consequence. It is possible to take administral acts by ordinance and to take legislative acts by motion or
resolution. Hopping v. Council of the City of Richmond,170Ca:
605, 150 P. 977 (1915); Walker v. City of Salinas, 128 Cal. Rpl
832 (1976). One of the best examples of this principle can be
I
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July 19, 1976
Honorable Mayor and City Council
Memorandum of Law Page 6
found in the case of O'Loane v. O'Rourke, 231 Cal. App. 2d 774,
42 Cal. Rptr. 283 (1965). In that case the court held that a
a resolution adopting a general plan for the City of Commerce
was subject to the referendum. The court did so in the face of
the argument that the referendum did not apply since the genere
plan was not a zoning ordinance and had no legislative effect
and was, therefore, an administrative or executive act and not
subject to the referendum. The court in O'Loane stated the rul
as follows:
"If the adoption of the general plan is legislative in character, then the referendun is available to the
people. 'I Id. at page 288. _.
The court continued to quote with approval the following rule f
62 C.J.S. Municipal Corporations:
"...'The form or name of an act of municipal authorities,
such as whether it is called an ordinance or a resolutior
is not determinative of its legislative or administrative
nature, with respect to whether or not it is subject to
initiative and referendum."' Id. at pages 288,285.
The question then is what is determinative of the nature of SUC
acts?
-
The courts have laid down a series of tests for determini
whether or not a particular action of the City Council is
legislative or administrative. The court in O'Loane, again quoting with approval from 62 C.J.S. Municipal Corporations, stated the test as follows:
"...'Actions which relate to subjects of a permanent or general character are considered to be legislative,
while those which are temporary in operation and effect
are not. Acts constituting a declaration of public
purpose or policy, and making provisions for ways and means of its accomplishment, may be generally classified
as calling for the exercise of legislative power. As
has been said, the crucial test is whether the proposed
ordinance is one making a new law, or one executing a law already in existence; and acts which are deemed as
acts of administration, and classed among those govern-
mental powers properly assigned to the executive depart-
out leqislative policies and purposes already'declared
by the legislative body, or such as are devolved on it b:
the organic law of its existence. ''I
ment, are those which are necessalry to be done to carry
Id. at page 289. -
8
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July 19, 1976
Honorable Mayor and City Cauncil
Memorandum of Law
Page 7
In Martin v. Smith, 148 Cal. App. 2d 751, 7 Cal. Rptr. 725
(1960) the court quoted with approval the following rule on
this subject from McQuillan on Municipal Corpora.tions (3d ed.):
"...'The power to be exercised is legislative in its
nature 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 boZy itself, or some power superior to it.'" Id. at page 727. -
. Another statement of the test is set forth in McKevitt v. City
of Sacramento, 55 Cal. App. 117, 203 P. 132 (1921) as follows:
"Acts constituting a declaration of public purpose,
and making provision for ways and'means of its accom-
plishment, may be generally classified as calling for
the exercise of legislative power. Acts which are to
be deemed as acts of administration, and.classed among
those governmental powers properly assigned to the
executive department, are those which are necessary to be done to carry out legisiative policies and pur-
poses already declared by the legislative body, or such
as are devolved upon it by the organic law of its
existence.'' Id. at page 136.
The tests as to whether or not a matter is legislative or admin
trative as set out above have been repeated almost verbatim by Appellate Courts when they have been called upon to resolve thi
kind of question. See Reagan v. City of Sausalito, 210 Cal. Ap
2d 618, 26 Cal. Rptr. 775, 777 (1962).
In applying these tests to the question of whether or not
the adoption of a general plan is legislative or administrative
the court in O'Loane v. O'Rourke, Supra reasoned:
"The adoption of the general plan is, in effect, the
adoption of a policy, and. in many respects, entirely
new policy. The plan is of permanent: and general
character, it is a declaration of public,pury?ose and,
community wants and, supposedly, represents the judg-
ment of the electors of the city with reference to the physical form and character the city is to assume. Under
the circumstances we can discern no useful purpose which
would be served by preventing the exercise of the democratic process. Namely, the permitting of a vote
to be taken on the issue by the electorate of the city."
Id. at page 289.
as such, supposedly sets forth what kind of a city the
-
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July 19, 1976 Honorable Mayor and City Council
Memorandum of Law
Page 8
In McKevitt the action of the City Commi'ssioners of the City of Sacramento in voting to purchase a particular park site
was subjected to referendum and the acquisition was turned
down by the voters. After the election the whole matter was
ruled not subject to referendum and the original action of the
City Council was affirmed on the basis that the decision was an administrative matter and not legislative and therefore not
subject to referendum. Applying the tests to the facts of the
case the court held that the city had accepted a bequest of
money pursuant to a will to be held in trust for the acquisitic
of a park. The court ruled that the acceptance of that requesl
was the legislative or policy judgment and that the carrying out of the trust in selecting the particular park to purchase
was an executive or administrative decision. Martin v. Smith,
Supra involved a dispute in the City of Sausalito over use of t
substantial portion of the city's bay front. The land in
question had been granted to the city by the state subject to
approved a sublease of the land for a bar and restaurant, motej
swimming pool, shops and parking. A referendum petition again:
the city's action was ruled invalid, the comt hoidlnq that ti
legislative act was the City's acceptance of the land grant.
Determining that a bar and the other uses were preferable to
a yacht harbor, was held to be an administrative act since bot1
involved commercial activity which had already been approved b:
the city when they accepted the land. Tnboth McKevitt and Mart: the matter involved,a city park and the development of the watc
front, were of significance to the community. Nevertheless, tf
legislative decision to have a park somewhere in the community
precluded a referendum on the kind of park or its location and
the legislative decision to have commercial d-evelopment on the
water front precluded a referendum on the kind of development.
a lease for commercial purposes for a yacht harbor, The city
The above cited cases and tests offer some guidance in
determining if Ordinafice No, 9456 is a legislative or administi
act, but it is difficult to formulate a rule which satisfactor: resolves all the questions involved. As the Attorney General states the matter:
"Apparently, the courts make the distinction on a case
by case basis by reference to the traditional way in
which governmental functions are classified." 55 Ops.
Atty. Gen. 383 (1972).
In attempting to apply these tests to Ordinance No. 9456, I cai appreciate the view of the court in Duran v. Cassidy, 28 Cal.
App. 3d 579, 581, 104 Cal. Rptr. 793, 798 (1972) who character:
them as "amorphous distinction (s) It.
8
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July 19, 1976 Honorable Mayor and City Council
Memorandum of Law
Page 9
In order to apply these amorphous distinctions, it first
is necessary to determine the facts. As Council knows there
prior to the incorporation of the City of Carlsbad. The events
of significance to this matter began in 1971. During that year
Uti-lities zone. At the same time portions of the San Diego
Gas & Electric's property surrounding the Encina Plant were
annexed to the city. The entire company holdings were then zoned P-U. At approximately the same time, August of 1971,
the City Council unanimously adopted Ordinance No. 9279 which
approved a specific plan for the approximately 680 acres of company holdings including the Encina Power Plant. The P-U
after public hearings in conjunction with the rezoning of a
piece of property to the Public Utilities zone. The plan as adopted included the provision for five electrical generating units. My review of the Planning Department file and the City'
records on the matter indicates that there is no direct
reference to any approval for the manner of disposing of the
prod.ucts of cnmhnstion rp~u1 ti ng from the electrical generation
activity. Condition No.5, of Section 2,0f Ordinance No.9279 dic
provide that the height and con€iguration of future power generating buildings and structures must conform to the facilit
existing when the ordinance was approved. By implication that . included stacks since there were stacks already in existence.
It is my opinion that Ordinance No. 9275 (SP-144) included approval of stacks as the permitted means of disposing of the
products of combustion from the Encina Plant. There is no
disagreement, I think, that the San Diego Gas & Electric Compan; would be entitled as a matter of right to a building permit for Encina 5 pursuant to the approvals contained in Ordinance
No. 9275 if it could be built using a fifth stack equal in
height and configuration to the four existing stacks. San Diegc
Gas & Electric Coxpany, however, desired to replace the four
existing stacks with one large single stack which would extend :
feet above the level of the existing stacks. In accord with
Condition No.5, of Section 2, Ordinance No. 9279 it was necessai
for the company to apply for, and receive, approval of an amend-
ment to specific plan (SP-144) in order to construct the single
stack. That approval was granted by the City Council by the adoption of Ordinance No. 9456.
were power generation facilities with stacks located at Encina
Q the Municipal Code was &Tended to provide for a P-U Public
zone required that a specific plan be adopted! by the City Counc
There is no doubt that a referendum may be used as a mean:
of attacking zoning ordinances enacted under the State Planning
Act. In Johnston v. City of Claremont, 49 Cal. 2d 826, 837,
323 P. 2d 71, 78 (1958) the court stated that:
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July 19, 1976
Honorable Mayor and City Council
Memorandum of Law
Page 10
"...Whenever the Council acts in its legislative
capacity, the acticn it takes is subject to the
constitutional right of referendum unless such
action falls into one of the exceptiofis provided
for in the Constitution.
The right of referendum with respect to zoning
ordinances is essential for the protection of the
rights of the electors of each city."
It is my opinion that the City Council's act of rezoning the
Sari Diego Gas & Electric's property ?ublic Utilities was a
legislative act and subject to the referendum. The question
then becomes whether or not SP-144 was also a legislative
act. Specific plan (SP-144) was adopted pursuant to Ordinance
No. 9268 which adopted the P-U zone. Section 13.56 of that
ordinance required that the specific plan provide, among
other things, for the identification of which uses would be
permitted on the subject property. In my opinion the operative
decision in a land use matter is the decision which fixes the
uses in_ the 70ne. In sme cases that is done by the rezonjncj
of the property and in other cases the uses are not fixed until
a plan is approved. In the Planned Community zone the uses
are fixed by a master plan with the manner of those uses being
left to precise plan approval. The approval of a master plan
in such cases has been held to be a legislative act. Lincoln
Rptr, 292 (1975). In the P-U zone there is only one plan whicl accomplishes the functions of a master plan, in that it sets
the uses, and also accomplishes some of the attributes of a precise plan in detailing the manner within which those uses
may be developed. It is therefore my opinion that,the original
specific plan adopted pursuant to Ordinance No. 9268,fixing
the allowable uses for San Diego Gas & Electric Company propert
was a legislative act.
___- Froperty Co. No. 41, Inc. v. Law, ___ 45 Cal. App. 3d 230, 119 Cal,
We are left with a final question of whether or not the
amendment (SP-144A) adopted by ordinance No. 9456 was a
legislative act. Inanswering that question it is important to keep in mind what, in my view, is the most essential fact tc this whole discussion. And that is the nature of the ordinance before us. Ordinance No. 9456 is an amendment to an existing
specific plan. It does not add or take away any of the uses
permitted for the site in question by the original specific plz What it does do is, pursuant to Condition 5, of Section 2, of
I
0 e July 19, 1976
Honorable Mayor and City Council
Memorandum of Law
Page 11
Ordinance No. 9279, approve construction of a structure in exc
of the height of the existing structures. In applyin4 the tes
discussed above to these facts, it is necessary for us to deter
mine whether or not the approval of the 400-foot stack pre-
scribed a new policy or pursues a plan already adopted by the
City Council. As I have indicated, the original apFroval of
the Encina Power Plant provided for disposal of the products
of combustion, via smokestacks. Therefore, it is my view that the Cj-ty Council in approving the original speci+lc plan with
five electrical generator units also approved smokestacks as
a method for dispersing the products of combustian. If that i so, all that is approved by the amendment ofthespecific plan .
a different kind of smokestack. It would. be appropriate then
to conclude that the amendment simply carries out the Council':
previously approved plan. That is, disposing of the plant's smoke by stack. The decision of a permanent or general characl
was to allow the plant with smokestacks; that being the
legislative act. The judgment that the smokestack needed to
be bigger because of stricter air pollution requirements could
be classed as an administrative decision implementing the pre-
viously made legislative judgment. I think the matter could bc
seen most clearly if the CGE~LIK>-'S applicaticn was for a speci: plan amendment to allow the four existing stacks to be raised 1
feet. I think it would be beyond argument that the Council's
the legislative policy for the land development in that area, E
that a decision that the stacks needed to be a few feet higher
would simply be an administrative decision carrying out the
previously made legislative judgment. The same analysis is cor
sistent with the cases cited above. The legislative judgment
was to have a generating plant with stacks at that location. 'I
subsequent decision to change the kind of stack was an action
in furtherance of the previously adopted plan.
judgment in approving the power plant with smokestacks had fix(
The case most directly on point which supports this analy
is Lincoln Property Co. No. 41, Inc. v. Law, 45 Cal. App. 3d 23
119 Cal. Rptr. 292 (1975). The case involved a development
proposed for the foothills in the City of San Carlos. The prop
in question had been zoned Planned Community and a master
development plan had been approved. The property changed hands
following its acquisition by Lincoln Property. The City then
adopted a new master development plan for the land. The develc
citizens group sought to subject the City Council's approval of
that plan to the referendum. The court found that the adoption
of the precise plan was not subject to referendum. In reaching
-
then submitted a precise plan of development for his project.
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July 19 1976 Honorabie Mayor and City Council
Memorandum of Law
Page 12
that decision the court discussed almost all of the same cases
which I have discussed previously in this memorandum and noted
ever possible and recognized the exception to that rule that
the power only applies to legislative matters. Of special
importance to the court was the test fron Martin v. Smith,
Supra, indicating that a legislative judgment prescribes a
new plan wherein an administrative judgment carries out a plan previously approved. In the court's opinion the legislati
act, governing the subject property, took place when the City
Council approved the new master plan of development. It is important to note that the zoning of the property itself was not, in the court's opinion, the operative legislative judg-
ment. As I have discussed above, the court concluded, as do I, that in a Planned Community zone the effective legislative act is the approval of the master plan which fixes the uses
for the property. The court found the precise plan to be no
more than the implementation of the previously approved master plan. The Council's act in zoning the San Diego Gas & Electric
land P-U is directly cornparable to the zoning in Lincoln
Encina Plant's ultimate development is directly comparable to the approval in Lincoln Property of the master development plar
Both such actions were legislative in character and subject to
referendum. The amendment to the specific plan to vary the tyy
and height of a previously approved use is comparable to the approval in Lincoln Property of the precise plan for the develc
ment, both of which are administrative acts carrying out the
previously approved legislative policy and are, therefore, not subject to referendum.
that the power of referendum is to be liberally construed when-
-- .-- - p ro-T rLLL~ - -- L to P-C. Th;c approval cf the specific plan for the
There is another independent ground which supports the
conclusion that Ordinance No. 9456 was an administrative act.
Condition No. 5, of Section 2, of Ordinance No. 9279 limited the height of future power generating buildings arid structures
to a height and configuration similar to the facilities that existed at that time. A height limit of 35-feet was imposed
on the balance of the company's properties subject to future
specific plan approval. The height limit then for the power generating building, including the smokestacks, was fixed in
1971 equal to the height and configuration of the existing facilities subject to exceptions to be granted by specific plar
Johnston v. City of Claremont, Supra teaches that an amendment
to a legislative act of necessity must be a legislative act.
Therefore, a rezoning of a property is subject to referendum as
well as the original zoning. The court in Johnston, however,
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J~ily 19, 1976
Honorable Mayor and City Council
Memorandum of Law Page 13
also made clear that it is an entirely different situation wher
an ordinance itself confers upon the City Council or an officiz
the power to grant an easement or variance in particular cases.
The court stating:
B "In light of ... the above authorities, where the wording
of ordinances mast be changed in order to accomplish
the desired revision, the act is legislative and not administrative. On the other hand, where regulation is changed pursua.nt to a provision of an existing
ordinance permitting an administrative variance on the
finding of certain facts, the act is administrative.
(Ci-tation)". Id. at page 76. -
It is possible to argue that since Ordinance No. 9279, which
sets the height limit by its own terms, provides for exception5
Ordinance No. 9456, approving such an exception, is in the natL
subject to referendum. The matter is not beyond doubt since
while the original specific plan ordinance provides for the
exception; it does not provide any standards. The total lack
of standards makes it somewhat difficult to conclude that it is
an administrative act under the Johnston rule.
of a variance and is therefore an administrative act and is not
My research indicates that there are other aspects of thj . problem which must be considered before reaching a conclusion on this matter. The analysis detailed above which leads to a conclusion that the ordinance is administrative has some limits
At some point a difference in degree can be a difference in kir
If I can be allowed a poor metaphor: Assume you have given yot son permission to keep two cats in the backyard and that the
family has not previously had any pets. If you will, you have
made a legislative judgment to allow your son to have two animz
for pets. However, that fact does not allow your son to trade two cats for two elephants, under the theory they are both anin and you made a decision to allow him to keep animals. The poir
being that at some point the increase in size reaches such a
scale that a new use is involved constituting not the administi tion of a previous legislative policy but a new policy. In orc to determine if this principle applies it is necessary to turn
the cases that my research have indicated bear most directly or this issue.
The issue before the court in the case of Millbrae Association for Residential Survival v. City of Millbrae,
262 Cal. App. 2d 222, 69 Cal. Rptr. 251 (1968rwas whether
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July 19, 1976 Honorable Mayor and City Council
Memorandum of Law
Page 14
or not the changes in a precise plan approved by the Planning
.Commission were so substantial as to be tantamount to a re-
zoning of the property. The property in question was zoned
Planned Development ~ A "Project General Plan" was approved
providing for seven 6-story apartment buildings. subsequently amended to provide for three high-rise apartment
buildings and seven qua5Flexes instead of the original seven
6-story buildings. a "Project Precise Plan".
cussion of Encina and the Lincoln Property case are obvious;
the procedures are substantially the same.
plan required City Council approval but the precise plan was
This plan wa
The developer then applied for approval of
0
The parallels to the previous dis-
The project genera
only subject to Planning Commission review. The precise plan
was approved which made the following changes in the project:
Seven units were added to the high-rise buildings; part of a
pitch and putt golf course was eliminated; parking spaces were increased and two of the three high-rises were relocated, one
from 70-feet distant to 35-feet distant from the plaintiff's
property. At the time of trial two of the quadplexes had been
constructed and $600,000 spent on developing the site. The tr. coiii-l invaliCaktzd the Plznzing Comnissioc a2prcval on the gron-
that the changes amounted to a defacto rezoning of the propert which could only be accomplished by the City Council. The cou
held as follows:
"In our view, while the change in the number of
apartments in each of the high-rise buildings
would properly be the subject of the precise plan
under the ordinance so long as it did not increase
the "general size" of the buildings as delineated in the general plan, the other changes amount to a
substantial alteration of the general plan since
they materially and fundamentally change the location of two of the high-rise buildings and the
size of the parking areas and the open areas.
These were specific elements of the general plan incident to the zoning of the PD district and their change and alteration amounted to a rezoning of the district.
the very nature of the PD district.
creation of such a district allows for greater flex-
ibility and diversification in the location of
structures and other site qualities and their uses, once these elements are delineated in the general
We are persuaded to this conclusion by Although the
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July 19, 1976
Honorable Mayor and City Council
Memorandum of Law
Page 15
plan they constitute material and 'indispensible
attributes of the district itself. In other
words, the zoning characteristics of the district
consist not only in the classification of the
district to PD but in the conponents of the
general plan accompanying the application for the
creation of the district and any subsequent amend-
Accordingly, any substantial change or alteration in the actual physical characteristics of the
district and its configuration amount to a rezon-
ing of the district and may only be accomplished pursuant to th.e provisions of the state statutes and the local ordinances consisterrttherewj-th pro- viding for zoning and rezoning." . - Id. at pages 267,
268.
ments to the plan that may properly be adopL5d.
The project in Millbrae consisted. of approxima.tely 16 acres.
For a project of that size eliminating a port.ion of a small
golf course and moving two buildings were found to be a sub- stantial chancje constituting a rezoning of the property. The
San Diego Gas C Electric property is substantially larger
in size (680 acres) than the property in Millbrae. The change in the San Diego Gas & Electric project removes four existing
stacks from the top of the building and replaces them with a
single stack, larger in diameter, located on the ground and
extendir,g 210-feet higher into the air. An argument can be
made that this change 'is greater in scope than the one in
Millbrae and is, therefore, also a rezoning of the property.
, Millbrae was offered in support of the referendum.in --- Lincoln Property. - The case was found distinguishable on the grounds
that the changes in Millbrae amounted to a "substantial alter-
ation" of the master plan while the precise plan in Lincoln
Property decreased rather than increased the general size of the buildings. This distinction can not be made here since
the change is larger in scope and increases the building size
and height, The argument can then be made that the 400-foot stack is a change in the plan of sufficient size to become a
substantial alteration in the plant as previou.sly approved. I
that is so, it is a rezoning of the property; a legislative ac
and is subject to referendum.
__.____
The other case in point on this issue was Wheelright V.
County of Marin, 2 Cal. 3d 448, 85 Cal. Rptr. 809 (1970)1 which-lnvolTedan attempt by the voters to subject to referendum an ordinance by the Board of Supervisors of
Marin County. The County had rezoned 2,200 acres
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July 19, 1976
Honorable Mayor and City Council
Memorandum of Law
Page 16
of land to P-C, Planned Community, and had by resolution adopte
a master plan for the development of the community. The Marin
County Code required the Board of Supervisors to approve a precise development plan for any developments within the plan-
ned community. referendum petition was an ordinance approving a precise plan
for the construction of an access road into the development. One of the issues placec! directly before the California Supreme
Court in this case was the question of whether or not that precise plan ordinance .was subject to referendum. Proponents of the deve1op;ment argued that the ordinance was passed for thc
purpose of carrying out a previously declared legislative polic
that the planned community should develop and was therefore
administrative and not legislative. The court disposed of that
contention as follows:
The ordinance which was the subject of the
@ for a portion of the planned community. This plan provided
"Roadways are of sufficient public interest and
concern to weigh the scales in favor of construing
this ordinance as being legislative and to be well
within the referendum powers reserved by the people." - Id, ai pages 458, 815.
Justice Mosk dissented from some other aspects of the courts
opinion regarding the way in which the court had construed the referendum law. In his view the court was taking an unduly
restrictive view of the people's referendum power. He quoted
with approval the statement by the court in the case of McFaddc
v. Jordan, 32 Cal. 2d 330, 332, 196 P. 2d 787, 788(1948) as follows: -
"...'The right of initative is precious to the
people and is one which the courts are zealous to preserve to the fullest tenable measure of spirit
as well as letter. "'
Mosk, notwithstanding his dissent, agreed with the majority th
the ordinance in question was subject to referendum. Wheelrig turned on the fact that the precise plan approved an access
plan. The court in Lincoln Property distinguished it on that
basis, noting that the decisive factor was that the addition 0 the road was a substantial change in the previously approved
plan. If the stack is determined to be such a substantial
change which had not previously been considered the rule of
Wheelright would apply and the ordinance would be subject to
road which had not been considered in the earlier adopted mast
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July 19, 1976
Honorable Mayor and City Council
Memorandum of Law
Page 17
referendum. AII argument can be made that the changes in the plant are of sufficient scale and involve sufficient impact
on the surrounding property and the community to bring the cas( within the rules of Wheelright and Millbrae.
After considering all of the above discussed authorities
your attorney is inclined to think that it is more likely than
not that a court would determine that Ordinance No. 9456 was
and administrative act. There is more authority for that position than the reverse. There is no doubt that the Council
has approved five generating units and has approved stacks as
the means to dispose of the products of combustion from those
units. The decision on what kind of stack seems to me to be
carrying out the previously approved plan and not to involve some new plan. It must, however, be recognized that this is
a matter upon which reasonable people can differ. I think the
Council would be justified in reaching a coritrary conclusion.
What is a "substantial change'' after all, but a judgment which Nust be to some extent subjective whether it is made by your attorney, the Council or a court.
If the City Council is satisfied, based on the advice
in this memorandum, that my view that Ordinance No. 9456 was
an administrative act is correct, your actioR would be by motio
to reject the petition on the grounds that the ordinance is not
subject to referendum. If the City Council finds the arguments
for the referendum persuasive, your action would be to reconsid, the ordinance and either repeal it or call an election. If the Council is not sure whether or not the referendum applies there is a line of cases dealing with the initiative power which hold
that the proper action in such cases is to resolve the doubts in favor of the people's right to vote. It is possible to
argue these cases do not apply to referendum but iq my opinion
the principles involved are the same. In Mulkey v. Reitman,
64 Cal. 2d 529, 50 Cal. Rptr. 881 (1966) the California Supreme
Ccur't stated its view that questionlc of whether or not a measurt can be validly voted on should be decided after the election. In Farley v. Healey, 67 Cal. 2d 325, 62 Cal. Rptr. 26 (1967), tl
same court overruled a challenge to a ballot measure on the Vie Narn War. The court ruled it was not the place of ministerial officers to decide on the validity of ballot measures:
"These questions may involve difficult legal issues
that only a court can determine." Id. at page 28.
The court concluded that such measures should go on'the ballot
unless a court directed otherwise. The rule of these two cases
has been softened by subsequent decisions by lower courts. In
Gayle v. Ham, 25 Cal. App. 3d 250, 101 Cal. Rptr. 628 (1972)
a County Clerk, on advice of the County Counsel, declined to
process an initiative petition. The court held that they had
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July 19, 1976
Eonorable Mayor and City Council
Memorandum of Law
Page 18
no mandatory duty to decide whether or not the measure was
invalid before the election and ordered the Clerk to put
it on the ballot.
keep it off the ballot in some cases but only where it was
"clear beyond question" that the measure would be invalid if
a enacted. The normal process should only be shortcut where the
"...invalidity of the proposed measure is clear beyond a doubt
__ Id. at page 634. Duran v. Cassidy, 28 Cal. App. 2d 574, 104 Ca
Rptr. 793 (1972) is to the same effect. That case involved an
initiative seeking to pxeclude the City of Visalia from owning
and 0perating.a public golf course at a city park. The City
Clerk refused to process the petition. The court held that since they were unable to find that the proposed ordinance was
patently invalid and in the absence of compelling reasons for
judicial interference with the people's righ'c to initiative,
the petitFon should be processed. Again the court stated the
rule as follows:
The court noted that it would be proper to
".*.We have no alternative but to command respondent
to accept the petition and to perform his dutj-es
in connection therewith uniess we find that, beyond
questior,, the proposed ordinance is invalid." Id. at
pages 580, 798.
While I have concluded it is more likely than not Ordinar
No. 9456 is an administrative act, I am not able to say that i;
so beyond question or doubt. It is entirely possible a court
would find it to be legislative. The cases just discussed wou7
then seem to compel me to advise you to reconsider the ordinanc
For two reasons I decline to do so. First, inthe case most
directly in point on the basic issue of this rnemorandum,Lincolr
Property Co. No. 41, Inc. v. Law, Supra, the court completely
ignores all of these initiative cases in reaching its decision that the referendum did not apply and a hearing was denied by
the California Supreme Corzrt. Second, the precedential value
of the cases has been called into question by the case of
People's Lobby, Inc. v. Board of Supervisors of the County of
Santa Cruz, 30 Cal. App. 3d 869, 106 Cal. Rptr. 666 (1973). At
issue was an initiative ordinance containing a number of
restrictions on development along the Santa Cruz coastline.
The Board of Supervisors voted not to put it on the ballot and
the proponents sued. The court affirmed the ruling of the tria
court that the proposed measure was invalid and that no electio
was necessary. In reaching their decision the court recognized
the rules of Mulkey v. Reitman, Supra, Farley v. Healey, Supra
-
-
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July 19, 1976
Honorable Nayor and City Council
Page 19
Memorandum of Law
and Gayle v, Harm, Supra, but nevertheless concluded that sincc
the trial court had decided the matter on the merits, before
the election, they would too. A hearing in the Supreme Court was also denied in this case although JusticesMosk and Tobrine]
would have heard the matter. The fact is that despite strong judicial statements in favor of the initiative and referendum
power in cases like Mulkey, Farley and Gayle, local government; bodies continue to vote not to put things on the ballot and on
litany occasions those actions have been sustained by the courts ~
The discussion to this point should give the City Counci:
sufficient guidance to allow your body to make a decision as
In this case, as a result of an opinion from the Fair Political
Practices Commission, the Mayor will not be allowed to particir
It seems to me the votes required for the various options befoi
the Council should be discussed. There is no requirement that
the Council formally vote to accept a referendum petition. Thc Clerk's certification of the results of her examination of the
petition, if they find that the requirements for a referendum
petition have been met, is sufficient in itself to place the matter before the City Council for action.
in proper form, and if the Council determines it is a proper matter for referendum, the Council's duty becomes a ministerial one. You have only two choices..,to repeal the ordinance or
to call the election. Therefore, a two to two or tie vote on
a motion to table or file the petition would constitute no action. A tie vote would not be sufficient to file or table
the matter.
remaining options. A majority of the quorum is sufficient for the motion to table or file the petition.
members, three "yes" votes would be required for sych action.
With three voting members a 2-1 vote would be sufficient. The
same vote requirements would apply to the option of calling
an election. If the Council elects the option of repealing
the ordinance, three affirmative votes would be required in
order to accomplish that action. (California Government Code
Section 36936). In the event a two to two vote on any of the
options would prevent Council action, it is my opinion that
should any interested parties seek recourse to the courts, a
writ of mandate could be obtained ordering the City Council to exercise it~s discretion in the matter and either call the
election or repeal the ordinance. It is also possible the COUI
would reach the merits of the matter directly and determine
that the referendum did not lie.
to whether or not Ordinance No- 9456 is subject to referendum.
If the petition is
The petition would then be properly before the Council and they would be required to exercise one of the two
With four voting
It also seems to me that some of the consequences of the exercise by the Council of the various options should be
I
* 0 e.
July 19, 1976
Honorable Mayor and City Council
Memorandum of Law
Page 20
b
discussed. As long as the petition remains unresolved, Ordinan
No. 9456 will remain suspended. If the Council votes to file
the petition and that action is not challenged in court the
matter is resolved. The ordinance would become effective and
building permits could issue. If any concerned individual desir
to challenge that decision, the appropriate mechanism in my
opinion would be a petition for writ of mandate to the Superiox
Court, asking the court to issue a writ commandin9 the City Council to consider the petition on its merits znd to carry out
its statutory obligation to reconsider the ordinance and either
repeal it or submit it to the voters. The ordinance would remai
suspended during the pendency of such action and would not Seco effectj-ve until it was finally resolved. If the Council determ
to repeal the ordinance your action is to direct your attorney
to prep are the necessary documents. .If the ordinance is
repealed the Council may not reenact it for a period of one yea (California Elections Code, Section 4052).
The option of calling an election is more complicated. Since there is no regular municipal election occurring within t
Linie Ilni is sek in the statute, the mattcr rxst bz scbrr.ittcd ts
the voters at a special municipal election. This'election must
be held r,ot less than seventy-four, no more than eighty-nine da
after the date of the City Council's decision on the matter. A
and results in some substantial costs to the City of Carlsbad.
It is possible to act to consolidate a special municipal electi,
with other elections. .In that event the election is administer
by the Registrar of Voters and the costs to the City are minima
The City Clerk has informed me that if the City Council makes this decision in regards to the petition after the 5th of Augus
and before the 20th of August it would be possible to consolida'
the specj-a1 municipal election with the November general electic
If t.he City Council wishes -to call an election it is my recom-
mendation that you direct the.City Attorney to return with the
necessary documents at your August 17, 1976 meeting. If any
interested party desired to challenge that decision, in my
opinion the appropriate mechanism would be an action in Superio:
Court seeking to enjoin the election. In the event'the election is called, the ordinance does not become effective until a
majority of the voters,voting on the ordinance, vote in favor 0.
it. .If a majority of voters vote against it, the ordinance
may not be again enacted by the Council for a period of one yea] after the date of the election (California Elections Code,
Section 4052). In the event the City Council determines to
have an election, I will advise you further in regards to the
special. municipal electior, must be administered by the City Cle
I
0 0 .-
July 19, 1976
Honorable Mayor and City Council
Memorandum of Law
,Page 21
form of the measure, arguments for and against the proposal,
d.ocumen'cs on August .17, 1976.
'and other matters incidental thereto when 1 return with the
m I regret that there is no simple answer to this matter.
The Council should understand. that it is- not unusual that a City Attorney's opinion LT a City Council's decision, that matter, is not sufficient to resolve these kinds of
controversies. It is perfectly appropriate that the final
decision rest .with the 'courts.
putes in this country. This is a matter of importance and
one upon which reasonable people can differ. definition the courts are the proper form to reach a decision
in that kind of matter. necessary but in this case that decision rests in the hands
of. other than those of t.he City Council. Recognizing all of the above, it is my advice that the City Council consider this opinion as just one of the matters Searing on the decision
and reach a judgment based on their own view of what is best
for any decision the Council might make and I am prepared to defend any such decision.
for
That is how we resolve dis-
Almost by
One would hope that would not be
for the conxmniky. In ny cpr~z5n .I there is scpport in the 3.aw
VINCENT F. BIONDO, JR.
City Attorney
VFB/mla
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0 0
>
THE FOLLOWING IS AN EXCERPT OF THE MINUTES OF THE REGULAR MEETING OF THE CARLSBAD CITY COUNCIL HELD JULY 20, 1976:
AGENDA BILL #3722 - REFENDUM PETITION.
Following discussion by the Council , Councilman Packard moved to reaffirm Ordinance No. 9456 and declare that it be reinstated to full force and effect and thus not sub- ject to the referendum process.
The motion was seconded by Councilwoman Casler and was passed by the following vote:
AYES: Councilman Lewis, Packard, and Councilwoman Cas1 NOES: Councilman Skotnicki ABSTAINED : Councilman Frazee
Is/
MARGARET E. ADAMS, City C1f
This excerpt, signed by the City Clerk, was given to Frank DeVore, San Diego Gas & Electric Company, at his request via the City Manager on July 23, 1976.
Total cost $24.70
0 0
~ ?dt q:
CARLSBAD COMMUNITY CAUSE
3831 MARGARET WAY
CARLSBAD, CA 92008
(714) 729 - 8065
x, q 13;-
August 3, 1976 qpJy
To : Maygaret Adam, Clerk of the City of Carlsbad From: Carlsbad Community Cause
Re :
Lawyers in the pefersendurn stiit ape asking that eertab materials be obtained from your office this week. These ma'ceyials will be
considered for use as evlde-rtce in the case asci should, "cherefore be cer%lfied.,
The fa11owing am? needed:
Request for materials related to referendcn law suit
1, Official minutes of all Planning Comfssion and City Counc
The times $he hea~dings beg%i^e Xnd eni '_II hearr.-lngs on the smokestaek. shouLd be incl.rxded,
2, List of a11 speakers, persans sending letters, OF %hose eommicating in other wags on the smokestack and/or Encina 5 at or prior ta the hearings QT before the July 20, 1976 regular
@OW@iJ, meetir,g, Copies of statsmerats or" sther information received by the
Ci%y from arrysne pkicir to OF at the hezlrings of the Planing CommLssion and the City Comcil and prior to the meebing of %he
The attorneys have requested that a copy of the Environmental Impact Report on the stack ar_d a copy ST the Carlsbad General Plan be obtained,
tions are ava2lable.
The attorneys would also like to know if tapes of the czatir~e proceedings at the Planning Commissior, and City Cora_ncil hearings
as they would like to have access to those tapes. The attorneys
would Like to know what your FoEiey is with regard to preserving verbatim accounts of the proceedings of all official city gove-Pn men& meetings and/or heayings d
gour assistance, We shall, of course, pel ing experzses e
3*
1
COUlzCil On JUlY 20,
Could you kirsdLy7 tell us where those aublica-
on the stack and at the JULY 20 6sunci3, meeting have been retain
/ 'Member of the Board of r)irec'ccars ,>'/ Garbbad Community Cai;se
I
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0 (B ;h"'k dji AIR POLLUTION COETROL DISTRICT
COUNTY OJ' SAN DIEGO ' 4'
TESTIMONY BEFORE TIIE CARLSBAD CITY COUNCIL ON ENCINA 5 POIER PLAN'
My name is Richard Baldwin. I am Division Chief of the Air Pollut
Control District's Division of Surveillance and Enforcement. Wit1
tonight is Michael Foley Division Chief of the District's Divisior
Monitoring and Technical Services.
The APCD has previously issued an Authority to Construct for Encln
Our recent written analysis (June, 1975) of the impact of emission
from Encina one through five with the tall stack concludes that th
"proposed Encina addition would slightly decrease 'fasin degradatio
and would markedly decrease grour,d level concentration of pollutan
downwind in the plant vicintty." The latter conclusion is based o
use of the tall stack. Based on this study, Encina five as propos
would comply with the District's Rule 20.1.
In March, 1976, the APCD completed an Lnvestigeeion of the propert]
damage problem in the vicinity of the power plant. Ge have concluc
that the power plant is responsibie'for some proper-cy damage due tc
staining and acid corrosion. SDG&E has concurred with the results
our study. If Encina 5 and the tall stack are built as proposed, 1
property damage problem should be reduced rather than worsened.
*On December 12, 1972 the APCD issued an Authority to Construct foi
On February 28, 1975 the AFCD extended the time for the Encina 5.
Authority to Construct to December 11, 1977.
c) -2- 0 F-
SDGGLE has agreed to conduct a comprehensive study of the formation
these pollutants. This study will lead to control of the emission
all units at Encina including the proposed Unit 5. The proposed s
will be conducted in a manner acceptable to the APCD and the APCD 7
be an active observer throughout the study.
The APCD has petitioned the Air Pollution Control Hearing Board fo
abatement order and a copy of this petition has been presented to -
We are requesting that the studybe commenced as soon as possible,
that a solution be determined by no later than next April. At thal
time SDGGE will be required to submit a construction schedule to tl
Hearing Board to be incorporated into the abatement order. If SDG!
fails to comply with any condition of the abatement order it will I
subject to a maximum of $6,000 per day penalty and could be forced
close down the Encina Power Plant.
*
On April 13, 1976, the District received a copy o€ a letter to the
Carlsbad City Council suggesting that information on 11 questions I
be at your disposal. The District prepared a response to these quc
and submitted it to you on Friday April 16. The information pertaj
to: Local and basin-wide air quality; past, current and projected
emissions from the Encina Power Plant; the effects of smog in L.A:
the ability of the plume from the 400 foot stack to penetrate the j
version layer.
e -3- a F-
If you have any questions pertaining to the air pollution aspects
the subject before you, please feel free to call on Mr. Foley or n
to answer these questions.
6
Refcre the Hearing Board
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* of the
San Diego Air Pollution Control District
State of California
No.
Air Pollution Control District ) Accusation of violation of
California Health and Safety Cc
Section 41700, Rule 51 of the S
Petitioner 1 Diego Air Pollution Control Diz
vs . 1 Rules and Regulations , and !4ppl
of San Diego County, 1 1
San Diego Gas 6 Electric Conpany ) for an Order of Abatement 1 I
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Respondent 1
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The AIR P@LL,L'TI3N CONTROL DISTRICT, COUNTY OF SAN DIEGO, seeks 8n or(
abatement directed to SAii DIEGO GAS & ELECTRIC COMPANY and alleges as folj
I
At all times herein mentioned the Air Pollution Control District, Coi
San Diego (hereinafter referred to as the "District"), was organized pursi
Chapter 2, Division 20, of the Health and Safety Code, State of Californi;
I1
The Xespondent San Diego Gas & Electric Company (hereinsfter refzrre:
as "SDGIE"), at all times mentioned herein was, and is at this time, a COT]
tion organized under the laws of the State of California, and doing businc
the State of California.
I11
SDGEE at all times herein mentioned, has owned and operated, and con
to own and operate, a facility which generates electricity with steam boi
which steam boilers are fired with natural gas and/or residual fuei oil,
facility is known as the Encini Power F'lant, and which facility is locate
28
BI
4690 Carlsbad Boulevard, Carisbad , California (hereinafter referred to as
Power Plant">.
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Section 41700 of the Health and Safety Code and Rule 51 of the Distr
Rules and Regulations Frohibits the discharge from any source whatsoeker,
quantities of air contaminants or o:t.,cr material rvhicli c311se jnjury, jet1
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nuisance, or annoyance to any considerable number of persons or to the put
or which endanger the comfort, repose, health, or safety of any such persc
the public, or which cause, or have a natural tendency to cause injury or
to business or property.
1
v
Pursuant to the authority granted by Section 42451 of the Health and
Code, an order for abatement may be issued by the Hearing Board for the 11:
of Section 41700 of the Health an3 Safety Code and Rule 51 of the District
Rules and Regtlations.
VI
SDGGE has violated, and conzinues to violate Section 41700 of che Xea
Safety Code arid Rule 5: of the District's Rul'es and Regulations by operati
Encina Power Plant.
VI I
SDGEE's Encina Power Plant is comprised of the following systems for
permits to operate were granted on the dates indicated.
(1) Boiler No. 1 - Permit No. 00791, March 14, 1973
Babcock G 1iilcox boiler Serial No. 13961-64
1,013 million BTU/HR heat input rating
(2) Boiler No. 2 - Permit No. 00792, March 14, 1973
Babcock E Wilcox boiler Serial No. 23101-56
1,013 million BTU/HR heat input rating
(3) Boiler No. 3 - Permit No. 00793, March 14, 1573
Babcock E Wilcox boiler Serial No. 23105-58
1,128 million BTU/HR heat input rating
(4) Boiler No. 4 - Permit No. 01770, January lG, 1974
Babcock 8 Wixcox boiler Serial No. 22461-73
3,047 million BTU/HR heat input rating
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organic arid inorganic elemerrts, compounds of organic and inorganic element
and oxides of said elements.
IX
The release of the aforementioned particulates into the atmosphe=.e re?
in the corrosion and staining of painted and other surfaces which react to
emissions from the Encina Fower Plant. Said emissions further cause detrir
nuisance and annoyance to a considerable number of persons,
x
13 Since August 1975, the District has received at least 20 complaints f
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persons in San Diego County,
sions from the Encina Power Plant.
XI
cmplaining of property damage resulting fror
On or about SeptemSer 1975, the District initiated an investigation 01
complaints alleging property danage from Respondent's Encina Power Plant ai
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concluded said investigation on or about March 16, 1976, with a published
titled "Analysis of Particulate Fallout - Carlsbad, California". This rep(
concludes that the Encina Power Plant is responsible for certain property (
in the vicinity of said plant. A copy of said report is attached hereto ar
Exhibit B.
XI I
On or about March 16, 1976, SDG&E acknowledged, in a letter to the Di2
responsibility for "at least some of the corrosive spotting" around the En(
Power Plant. A copy of the letter is attached hereto and marked as Exhibil
XI11
SDGGE has stated to the District and in public hearing to the City of
Carlsbad Planning Commission that SDGGE wiil contract with an independent c
tant, and said consultant will conducc a comprehensive study to determine t
source of the aforementioned particulates, and said study will determine a
to control the aforementioned particulates to the extent that, within a re:
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period of time, SDGEE will cease all violations of Section 41700 of the HI
and Safety Code and Rule 51 of the District's Rules and Regulations by it
Encina Power Plant.
XIV
The order of abatement will not constitute a taking of property withc
due process of law.
NOW THEREFORE, the District requests th3.t an order for abatement be 1
to SDGGE enjoining SDGGE from continuing to operate its Encina Power Plant
at 4600 Carlsbad Boulevard, Carlsbad, California unless the hereinafter SI
conditions are met by SDGGE.
(1) On or before May 31, 1976, submit a letter of inter,t to award a
to an independent consultant, which contract Kill provide that, I
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consultant shall conduct a study to determine the source of the
lates referred to in paragraph VI11 above, and, which study shai
with recomended control technology to substantially eliminate t
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particulates which cause the violation of Section 41700 of the H
and Safety Code and Rule 51 of the District's Rules and Regulati
(2) On or before June 30, 1976 award a contract to the aforementione
consultant to conduct the study referred to in paragraph (1).
(3) Provide the District with all inforination generated from the stu
of paragraph (1) when said information is requested in writing b:
District.
On or before the tenth of each month and until Respondent has fu
complied with these conditions, submit to the District progress
for the prior month describing the work performed pursuant heret
Make restitution to all persoris Nhose property has been damaged 1
the aforementioned particulates from SDG3E's Encina Power Flant,
continue to make restitution so long as snch persons have a valic
claim of said property damage.
(4)
(5)
(6) On or before April 22, 1977, submit to the Hearing Board a propo
compliance schedule to control the aforementioned particulates.
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The compliance schedule shall include the following:
a) A date certain for subxission of a final control plan, incluc
applications for all required permits, to the District. . b) A date certain by which contrxts for emission control syster
or process modifications will be awarded; cr the date by whic
orders will be issued for the purchase of compcnent parts to
accomplish emission control or process modification.
A date certain for initiation of on site construction or ins
tion of emission control equipment or process modification.
A date certain for completion of the installation of emissio
control equipment or process modification.
A date certain to achieve final 'compliance with Section 4170
of the Health and Safety Code and Rule 51 cf the District's
Rules and Regulations.
c)
d)
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,/ '
//& I/ / /4- // ' Lf,>/&. -I +&%- -
WILLIAEl SIPNONS
AIR POLLUTION CONTROL OFF1
SAN DIEGO AIP. POLLUTION CO
5
u u, & 2'" ulr: v v L#PJ-;iL.fiA i" 24L7 wJ-- .cf- b
P.O. Box 727 .. Cardiff, Ca. 92
01 Sal, iepyJi$a c
0
SThTgN;'iiT TO Ti33 Cir3iLSBAD CITY COUNCIL AT A PUBLIC LZARING ON "FA P2@?0.5ZD 400' S
A'l Ti2 dNCI3A PO'IZR PWILT .- APEIL 20, 1976
My LI~E is 'iuth Honnold, Illive at 4232 Sunnyiiill Dr., 'Carlsbad. I am spea
for the hose of k'oomsn Voters of' Sen Eieguito.
Ths League of Si'onen Voters ~PS expressed concern about t5e isauance of a
permit to construct a 400' stack st the Zncina Power Plznt on several OCCaEliOns.
b.6 hrve testified at other public hearings repirding this psrrnit. 'k reiterate,
on th3 basis of our Air QJelity positions, our opposition to t!iis proposal.
The kegue of Xoasn Voters believes tiiat the control of air pollution is a
rasponsibility of all levels of gouernzsnt, 'i'k bslieve that the City of Carisbad
has the responsibility to prevsnt the I'urtBer degradation of its air quality and
of ti;e air quality of its neigkboring comxnities. he believs that total amissior,
at Encina skould be reduced, not dispersed, 3an Dkgo County is all one sir basin
and should br: considersd as e whole.
The hague of Koomen Voters augporis regulation of stationary sources by co
and peneliies, inciucing inspction 2nd aonitoring, full disclosure of pollution d
and substantial fices. ?,e feel that incine ?owr Plant hzs not been adequately
monitorsd, tilet controls havv~ not bsen nendoted, and that pollution data is not av
abls to the public. '.l';Ts League considers it impzrative that infornation on zeasur:
emiseions fro2 the present stecks be kn:,+:n befcre a decision can be mzde on thio ad3
ability of' n tall stack, The City Council or' Cnrlsbea should kave full knoxledge (
present stack eir,issions, preeent dispersion patterns, pressnt FeEther conditions ai
these will be ckanged by Encir,a $5, Kith or sitkout tke tall stack. lk City Cour,l
should heve full knowled,ss Of aiternotivs control measures, such as scrubbers, bag
houses, electrostztic preciaitators, -- their costs and t?.eir sffectiveness ageins'
the various kinds of pollutants, -- before a d4cision ontthis pro2osal csn be mde
It is ti:e position of tks Laague tket 2ollution control should bs cor,sidsrel
a cost of doing bssiness, but citiz-cs 8s coxxiz4rs and taxpaysrs xust expact sone costs to be pzsssd on to ti:em.
damage dom by eir pollution. Savings from rsducinE air pollutior, should be;.,balan
against ti;l cost of Instelling cleaning system on th-. stacks. league believes thr
all trie costG of this pro2osaljbe ccnsid?red,
,.
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CitizGns nre alrssdy paying 011 tk.2 costs Z? tL.2
mL'5;
Ths k?gus, furti-,ozore, h.-lizves that daterioration of present air qun1ity
rcust not be tolerct3.d.
provpt action to 9rotect i:enltii and t?z er,viroi-,xnt, declaring thet "ice stould no
longsr be 1i:nit-d to rspa.iring tk de.mp eft=r it tas bean done; nor stould we cor
allow tliz sntire populction or trJ5 entire environ:!,c:nt to be used as a isboratory".
'I'he California dnvironicantal Guniity Act diclarss it to be t?.e State's pbli(
to ensure that long tera os ?;ell GS s?.ort tern prot2ction of ti:e environmant skall
be ti10 guicing critorion in public decision-mking. The act f:ir?,l--r declarss that
dacisions basad on tk ?rot>ction of ths -.Eirircn:l:3nt s>-nll careru~1y;consider all
ths altornutivcs and nec-ssury niiigtitions, antici?ets all i.te conszcuences of bot1
6 bonef'icidl aric advdr-ss rxiti;m arid ailot: a ckoice of ti.e b=st possible opti.ons.
tiinn u tall stack.
Follol\.ing tije passap of tko Clean Air Act Amcndm=nts in 1970, %hi= Sierra ~1,
arl2 ot!!ay environ:;.:ntsl grc~p~, includini: tb.2 Cieen Air Council cf San Cisgo county,
sued tp,= dnviron:>:.-gtaf Protc ction ASSRC~ for apnrovinc state irpisn,2ntation ?iZns t:
did riot; include noria-gsridatio!i provi~lcfi~. J.T.~ Sl~.rre Clltb souck,t 3 strict int,crpr5
0:' tha clean ;iir ~ct, stati!:,: tkut Congiess s>d r12b intend tL2.i; states a:loy(; tk2ir
air pollution l2vc:s to rise$ that tkc act requires tiifit poilutio:3 b:? clennzd up, nc
nov3d. T?.~ ~edzrel 2istrict Court rulzd in i'nvor or" the ,Sisrra club, E~S did the
of tj:3 lotd3r COUI-~S, tl:.cidin!; that no siotl iiZ?l.:a-ntotion pli.in con be opprovzd by 1
Uii if it ~1;.0:.;3 sir;tiii'l.cnnt dcteriot-::tion oi' air quality FriyI $ irJ ti;c stnte* yi
'~:%i;uG 0~ 7301il-.n Vot3l.s ci' S:>I~ Ci:,-,uito ~C~IS tint E l+y$ intra! in tot5 1 c.?:!;iscions
froln tiio lar.fr...'t :;icition!iry sou?'cz of pollGtion :,.i11 cnusc signipicnnt d:trri:,l.nticr
of' ti;; air ou:jlity of' SrIn Di
tilo F'cddjro1 CIC~I~ Air uctc
the ?resident's Council on Lnvironnsntaf C,Jslity hzs urged
la~i;u< bi.1i.A~ I YS tht City Co3nci.i shoula ckocsa emission ccntrols, rather _.-_ - ..
,.,I
..
u.2. Court of ?,pp3:11S. k,J!d On Juri:: 11, 1373 th u.5. SUpr2:32 Court u.pheld th3 rQlil
1JI' "
0 Air a?l:iill !jnd ti:.jr;for:: in not. in co:cn] inI-,cg ..:iti1
/a a OK c -*
9-20-7
WyY
SI’ATEK!ENT BEFORE ‘THE CARLSBAD CITY COUNCIL REGARDING ENCINA
UNIT #s*s 1~00’ STACK GIVEN BY VICKI E, ZAMORA ON APRIL 20, l97C
Since most of the information we have has been made avail-
able to you, I am not going to go into many of the statistics
and data with which we have supplied the Council,
My area of co;qcern deals mainly with the attitude of iegi:
lative bodies, such as the Carlsbad City Council, atzd the repre
tion we, 2s a people seek.
It has become cormonplace to say that the legistlative boc
and regula.kory agencies have practically become captives of thc
very industries they are supposed to regulate. Though such a
relationship may EO be through bribery or other overt methods,
governmental agencies comrrionly view the problems of industry
more sympatheticzlly than they d.0 those of consumers e The fun&
problem may stem from the fact that decision makers often see j
dustry representatives on a very frequent basis D while th.e a.ve~
citizen and consumer is rzrely seen. It is, for the nost part,
‘chis kind of relationship and personal contact that leads deci-
sion makzrs to accept the word of industry representatives, of1
times without placing the burden of proof on the developing OY
expanding industry, as is the case with SDG&E,
Therefore, the process of government regulation very oftex
consi.sts of’ a didogue between the body or agency that is su.pp(
to be the regulators, an6 tli~ regulated indust.iiies. Where doe;
the average citizen fit in in sgch a d-izlogtie? It is up to -i;h(
public “io mire thei:~sel\~es heand, but j.‘; is also v.p ‘LO ezch of ;
as our represei-ltatives to Listen to tiie -Toice of the citizenry,
a e *w
7 -I
Letpus -take an aveyage citizen, who represents many of
us i~ "cis enlightened age of envirormental concern.
citizen exercises some rational (x? fanatical) cau.tion over
his li.festyle, his personal consumption; >;.he shops for food. he
is carefll to notice the additives and preservatives on izbels
and. tetzds to eat fooc? xithcu-t then; he may have given up clgt;
e%Ce smokin.g when he learned it was hazardous to his health;
a.nd though he d.ri-ves as little as possible, and walks when we
can, when he does d.rive he exercises caution by fastening his
sea-tbelt. in spite of all our citizen may 60 for his own hezl.
and szfsty, in many p'iaces there are pollutants in the very zi:
he breath:?s that; are equivalent to a. pack of cigarettes a day.
And if' he h.asirittle red choice in deciding whether or not -to !
he has no choice at all in the decision to breathe, nor iii wha-
type of' alr he bxea-thes.
we breathe is largly out of his control--tk proof for that is
that we are hear tonight; YOU are deciding whether to dump 1L5$
more 9'olli;tants i.nto ow sLr.
Say OLX
It is sad indeed that the very air
The probl.en! of air pollution. is one of the most sub'cle anc
pervasive products of om "progressive age, It Robert C, Cowen j
"Technology Review4' stated s "IYe 6.on't redly know hcw we ' re poi-
luting the environment, We don1 t; know how the biosystem fcnctj
We donP t understand the full implications cf so-called qite~hr,~l
gical progress. I' We don't even I<i?ow hew many people would be i
ideal. popviation for a. c o ,planet as 8 whole, So one of cur 2j.E
challenges of "Le ig?Ois Is to find out what the hecick we're 4~~
ing about when we wring OUT haids over %;he "environmental pr0b-j
Tlza'r, statement was made in 1970 o aid we haven7 t even begu.~?. to
rec7.l.pi;e 7. thc :fuII implicztions , resulting fmm c1.ecisions or!
'* 0 e
3.
j-ssues that rep~eseni; sszethirg cali.ecl "progress. I' i'i.merica's
dead-line for clezning g.p 3S.r pollu-tior, passed Mzy 31, 1975
under thhe Clean Aii- Act of 1970, hut most parts of the nation
still h.ave air too dirty $0 meet federal standards set u.ndey
Act,
gions could no+ nee+ the deadline set five years ezrlier. Amo
the reasons fcr faiiun-2, zccor~iing~,t~ie~~~ cjiief were a iack of
enforcement, and. the unforeseen pressure for industries and poi
plants to switch to dirtier fuel.
At least 160 of the na-kioiik 247 air quality control re-
It is easy -to becone aceu.st.oned. to foul air when there is
oppor-hnity to breathe clean air, It is difficurlt -to percieve
as a threat something as subkle arid insidious as th~ poilu.tznt:
that sl~wly poison us, and. our property. It takes 3. drastic
revjsion of our perspzctives to realize tha'i the atmosphere is
not exf.iains-klbl-e, tha'c the air we breathe is ~JA free, that you
don't DECREASE pollution by dispersing it with a 400c stack
that has not been proven foolpro3f,
--
Since beconliilg a. Research Tezm merrber nearly two years a.gc
, 7: \< r $v;\,~.-.~ j '- ' " ' '' 6een czlled eco-freaks, rzdical conservationists, anr;":
idealists. We are not zny of those things--and if ox labe!.
could apply to each of us, it wou.ld be, above all, that we are
REAL1 STS ,
\?e are ~Z..ists to the fact G€ economic strug,rSI?.es cf i\meri
who pay billions of dollars each. yezr in health, propery damage
lcss to vegetztion, 2nd niuch xore as a result of poll:i.ted air,
Vie are realists ti; Lh.e fac'l- that zis a result of the diz.4og
Ue-heeri dccisioii malrei-s s.:-L~ -pri.v~.-i;e corpor3ti.og.s ~ 37~ are here !L
thj.s IJnrr.ea-li.?y p taaikj i>f: ab.ozt a Eonstrocj-ty, a pcllution-spit.ti
eyesor:: !rnoi:m 2.:; the Stack.,
-3 WC? are a1Lso real.:~-s.l;s $G i;>ic: ~3.c-t that you are not five ii>d -_-.- .._
0 e * ‘6-
4 e
wi$uals--5ut you are OUT representatives ~ YOU repyesent the pc
of this ccrrmunityi, 2nd ideally ilre speak -through. Beczuse of
polls thhzt vre have CGYI~UC~~~, 1 citrt tell you that the people o
CarLs’ca.d say NO to Encina U~it SI We say NO tQ the 4-00’ stack
We say f\O tc: a refinery! And. thct, CoLrncil, is reaiityt
<- ,f..: ”y - ,/; ,;:?,A /‘d/ : 1 ,// ,;q7 25!
I ‘[t/,~ ,i. I A;J. /? L, /i; A,/ L
!</X.
// i ,I /
, .-/
9 % a e s y$
CAREBAD Statement ma& before Carlsbzd City Counci.1 on 4ncina 5/4CCp. stack April 20, 1.976 by Donria Flanders. (CCC Research Tezm) cOMMuN1T-Y
CA1IJSE
e.
CARLSBAD,
SDG&E has a PLAN for Carlsbad, Encina 5 and the 480' stack
must not be considered in a vscuun, but as one part- of a whole,
It is tirne that the citizens of Zarlsbad and thzir renresentative
became cognizant of this PLg? and the fact that we are 2.3-1 hing
led one step at a the down the Primrose Path,
-- Stea is the existing Encina Fower Plant
Step - 2 is the Zwh-ta 5/I;CC' stack 50% cxpmsfon
Step 3 j-s another power generating EacilTty %st of 15
Step 4 is the Mecarfo Oil Refinery which could. expmd fip to
3 times
Stc? 5 is a 500 acre industrial park with sate7LlLite in:!us'cril ___L_.
such as petrocheQicd, fertilizer, Y1asti.c
Sten 6 5s increased numbor of oil storage tznks
Ste~ 7 is development an6 e~pansion 02 the 'Zncinz. mooring to
bring in more and 1a.rp:er oil tankers (which our ciee:,
watei:s would accogl.oda,te)
_I SteG is offshore drilling- -the fed-era1 governnent has aplxx
oil explorakfon. of the So. Cdtfa cont:inental shelf
These are all t-enta-cles of the salite octiinus cal1ed th.e "oi2..
insustry," All of these ~rojects t~ould be hea\7j-lj7 pollutinc,
Zocatcd in a "crit?-cal'7 air basin, and ripht in the centel- of
6x1 sbad .
.r~ot?LE.li totnl ,cinpror:imately 21 p wc tons/yre
1 ..~ I Tb.e contmin.a-nt e~issio;ls fron :A~cz-:~.2 ajzd ~.:aca-riu a,io;ie
SDGQZ ts CT WOU~~. be
. .y
* e 0
page 2
either direzisly OF indi.rectly inwlvcd in all of these projects,
Encirla 5s SVG&E, 14acario is a "joint venture'' of SDG&!I and Pacif
RCSOU~C~S, Japatul, the developers of the industrial park, is a
sidary of S9G&Z,,
We must pv'c the pieces of the puzzle together NOW and look I
the total uicture of the future SDG&E has in mind for Carlsbad,
EIF. should be made b:7 the City on this entire developae.n'c and thc
cuniulativrz and synergistic effects should be considered, This
pf.c:ture also nust be viewed against a background of existing and
pos!sibly ex7anding pollution emittinp facilities in Carlsbad sucl
as the Zncina Treatment Plant, freeway, airport, and race track.
S car,not believe tha.t this is what you or the people want
for Carlsba6. P cannot believe that you or the people are so na:
as to not recognize this PLAN'. The tirne for CarlsSad to stand. UF
and say STOP is NOW, Carlsbad Community Czuse has been in comur
cation with GO9 (Get Oil Out citizens group of Santa Barbara) whi
has been extremely active an6 has had tremendous financ5aal and
public support,
fight, I think a comznt made in a letter received from onstnem-
ber of GOO explains vhy.
ple in Santa Barbara ever made Ts'as 1.etting oil get a foothold. in
first place,
pi.cture or PLk'5, it was too late, T3j-s is the best advice we cou
be given, noth her tragic exarnnle is 2orro say, whic!~ at on2 time
W~RS a q1ii.z-C t cl-mminp, picturesque bezc'h cornrnunity and tourist
resort lTiuch J-Xkc Carlsbad, and fs ROW totally dominated by the
mcn.strous PC&% p0:~7er plant with its three 400' stacks right on th
GOO has not been successful despite their val-iar!
He stated that the worst mistake the. pe
$1 the tjme the people in SE recopmized the tctd
-,.
., * e 0
page 3
be,acEl ob?, iteratin? ttip un2cju.e natural. phenomenon of Forro liock
am3 Bay, Let us remember 2nd learn from Santa Barbara 2nd Eorro
Bzy *
The door v1iIJ. - not bz closmj after this project, but rathey
opened more widely, 'fiere will be new specific plans slnd amendm
to specific plans submitted to Carlsbad. There will bc new decii
makers in tb-2 future. An37one who reviews the recorci of the oil
industry cannot miss the pattern, Tnere will be variances, extei
sions p arid. exemptions. There x~5l.l be inadequate nonitorfna, Lpc
vio13,tions9 endless stuclies f and unsuccessful control attempts.
Effectrve control- mzasuses ten6 to be expensive an:l therefore vna
able to the oil industry. EO?? is the the to shut the door,
SO *this is the Primrose Path the people of C~~LSL --d ... are unvi
tinp9.g bcii2g led. dovn. Zncina needs Pacario needs ind.ustria.l par
needs storage tazks. needs supply "lankers. needs offshore oil ex-
ploration and drilling, It is a total 2nd interdependent energy
compl-ex.
I love the sign at tho_ entrance to our city which says
"@a:rIsbac!, villape by the se2.l' I woulr' not Like to see its in-
scription ch-anged to llCarlsbad, enerzy center and dumFin:r station
bg7 the seaell
bh,b@~s of tha coimc;l--You have thc legal z-iyht and tke nor;
resmnsibility to th? ~eople of Carl-sbad to not let this haD?C?n,
5 i?dcc_ the stmnzest aFpeal for :7o~ to deny Zncim- 5/4CC' stack
md the direction ?n which it would be leadin? us,
- -- - e e 542.9 -,
b
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s
a W
CARLSBAD COMMUNITY CAUSE
General Membership Meeting
Carlsbad City Council Chambers
April 8, 1976
AGENDA
Call to Order
Minutes ...........................................Pritten
Treasurer's Report .................................Akerman
Members hip Report ................................. Ri chards
PACE Report ........................................Flanders
Motion concerning E-5/400 foot stack .............. .Bowen
Guest Speaker ......................................John Fairweather
* 0
CARISBAD 'L"Bs COMMUNITY
CAUSE
,
CARLSBAD,
CARLSBAD COMMUNITY CAUSE requests the postponement/
continuation of this hearing on the grounds that the council
has not been provided with sufficient information, which is
available, on which to base a judgment, More time is also
needed in which to evaluate important information just received
from the APCD on Friday P.M., April 16, in response to a letter
from Carlsbad Community Cause.
We further request that council direct staff to prepare
detailed and complete reports and/or presentations on the follc
ing vital subjects:
- What are the meteorological characteristics of the Carlsbad
- What are the meteorological characteristics of the San Diegc
air basin?
Will the plume from the 400 foot stack penetrate the air
inversion layers?
-
- What are the feasible alternatives to the stack which would
reduce or control pollution rather than disperse? (Technolog
has changed since the original EIR in 1971.)
- What are the synergistic effects of Encina emissions and tht
emissions from other sources, present and projected.
No decisions should be made prior to a thorough investig:
of the above information,
0 0 -7
_. +dd- 7i
rf 'ant. 87
TESTIMONY OF R. G. LACY
BEFORE 'THE CARLSBAi) ClTY PLANNIJG COPIMISSION
APRIL 2G, 1976
My name is Robert G. Lacy. I am the Nanager of
Mechanical Engineering for San Diego Gas & Electric Company.
The engineering for Encina Unit 5, and the proposed single
stack, is being performed under my direction.
L will make a brief presentation on the technical
aspects of the project. I will be followed by Dr. Eclzidrd 14.
Liston of Stanford Research Institute. Dr. Listor, has beer- hi
Stanford Research Institute sirice 1965. He is now working in
the Atmospheric Sciences Laboratory. He received his PhD
from the University of Sodthern California in Chemical Enginee
He started working on air polldtion research in 1954 as an
employee of the Air Pollution Foundation. During his 11 ye2r.s
at SRI he has specialized in experimental research invslvirLg t
designing and conducting of test programs and *,he a~aiysis 2nd
interpretation of data from these programs.
,f
Dr. Liston will be followed by "I. Jack Tnonas,
Vice President of San Diego Gas & Electric, who will make a
concluding statement.
\ 0 0
.\ On November 20, 197:i, the Carlsbad City Council 22~-
-. a Specific Plan Amendment for 11 single 400 foot stack at the
Encina Power Plant. During tl?'? ensuing and lengthy regulatory
proceedings before other agencies , tnat Stack Modification Arne
ment expired.
I,
Tonight, we again ask your approval to allow us to
construct the single 400 foot stack at Encina for the purpose
improving air quality in Carlsbad. There have.been no change:
in the project since your first approval.
During the public hearings before the Plannlng Conimi
ion on January 28, and March 24, I described in some detail ho
the 400 foot stack will improve the air quality in Carlsbad; a
why an alternate solution, such as a scrubber, would be envirc
mentally unacceptable.
Tonight, I would like to summarize the central issue
before us -- the need for the stack.
I
.. ~ .. . _--. ~
The addition of Unit 5 will decrease,the total
' ,i
fuel oil consumption from all of our plants in San Diego COCi.11
by 600,000 barrels each year due to the high efficiency of
the new unit. A commensurate r>eduction in sygtem emissions
will also occur. It is also true that the addition of' UKit
5 will increase the total Encina plant fuel consumpti-on by
30 to 45% depending on system demands, and that is precisely
why we wi.sh to build the tall stack. The tall stack was
designed to disperse these inereasid emissions eff'ectively,
even under the rrost severe meteorological conditions, and
wij.1 r>esult in a dramatic improvement in local a.ri.r quality.
-2-
a e
In riiT downwind area, either close to or dlstant fron
_I plant, bill emissions from the stack exceed any fedepai, scatc
or local stanaard. In fact, 1 cal ground level traces of enis
with five units and the tall stack will actually be less tqar
those now produced by the existing four mits with tneir short
stacks. Further downwind, the air quality will be no warse be
of the stack.
This unconLradicted ev.iderice Aias been r)eviewed vany
times in public hearings -- before a number of regulatory
agencies.
Within the past year, the Sari Diego County Air Pollh
Control District conducted an independent study of thc air yu,i
impact of Encina 5 and the tall stack. The APC3 stuciy aiso
concluded that air quality improvement in the Carlsbac? a~"e8 bio
be achieved by installing the tall stack.
The stack is clearly needed and deserves your approv: ,i
A second issue -- tnat of the fallout damage, whicn
affects a very small portion of the City of CdrZsbad, -- has
almost overshadowed the maior issLe at hand.
-3-
e e
Investigations hav shown that the Er-ciiia Plant is
responsible for the rust-lik spots up to one-half incn in
diameter which collect on sorrie horizontal smfaces in Terra-n
These investigations also showed that other types af corrosi
damage in the area were characteristic of surfaces exposed t,
salt-ladefl sea air and were not caused by the power plant.
As noted in the Planning Department Staff Report, .
proposed conditions to the Specific Plan Amendment will give
city ample control to ensure =hat the problem will he correcl
Mr. Baldwin has also stated that the Air Pollution Control
Officer has petitioned tne County Air Pollution deerlng 3oarc
an abatement order to cerrecL the fall oiit d:tmag~ problem.
1 1
7 I
San Diego Gas & Filectric C~;ij-ipa~~y has agreed
with the abatement order application. Wc have already reqhe,
bid proposals from qualified consultants to conduct a compre!
test program, which will start in the next tGo months, to ae'
the proper methods to correct the fallout problem. Correcti'
measures mignt include; changes in sootblowing procedures,
fuel oil. additives, burner modifications, particulate collec
devices, or combinations of those measures.
18
The need for Encina Unit 5 is not at issue here.
1 3 Iiowever, very recent changes in the Company's reSOurcc plLK5
deserve mention. Last week, the Company carcelled its partic
pation in the Kaiparowits Project. This cancellation was ea1
1 by spiraling costs resulting from regulatory delays. Epcina
Unit 5 wilts urgently needed before. The need is now desperbtc
1 -4-
i
0 0
_.
‘The operation of exi:-Ling generating upits is
also not an issue here. Sowever, noteworthy, pr’ogress which 1
been madc Lo reduce oil consumption on these o1de:r uniis wiih
a performance monitoring program which was institutea in the
Fall of last year. This is a continuing program which is
addressing waste heat rejection in our condensors, boiler
controls, excess air and stack gas temperatures. Since the
commencement of the program, we have improved our over-all
system efficiency ~y 2.7%.
li
-5-
0 0 1 I
,*
During the course CI the stack hearjngs, many irr>cl
i
3 I issues were raised and numerc s requests for new information
were made, including the exact quantity of emissions for near
1
I every source in Carlsbad, San Diego County, and the State of
I
I California. It would, indeee, be fun to learn the exact quar
of emissions from everything -- from sources incldding addorric
small boats, power plants, small industries, household stove:
water heaters and furnaces.
i
But, while the answers to these questions may be 0:
academic interest, they have nothing to do witn trie merits 01
the issue before you. The question which must oe answered tc
1 is approval of the stack. Tne fact is, jf Encina Unit 5 and
i the tall stack were in service today, the quality of the air i
1 Carlsbad would be Petter right now.
The Planning Commission has recormcndcd approval of
the stack. A total of twelve conditions wer,e irripuscd.
These conditions are tough, by anyone's standards. !\/e hill
accept them. I'
And now Dr. Liston will speak on the suDject of the
SRI studies.
Published daily except Soturday and certain holidays by The South Coast Newspapers,
Inc. 1722 South Hill St., Oceanside, Colifornia, 92054. Telephone 433-7333. Entered at
the Oceanside Post Office as Second Class Motter. under the act of Congress, March 1879.
Thomas F- Missett, Publisher
Daily: 15‘ per copy at newstands
Sunday: 25‘ per copy at newstands
By Mail: $3.50 per month
Member of
Audit Bureau of Circulotion By Carrier $3.25 per month
4-The Blade-Tribune Sunday. July
Mayor’s Remarks
Carlsbad Mayor Robert Fyazee’s comments agitate the community and divide it into during his ‘State of the City’ address Tuesday refinery and anti-refinery camps. about environmental groups were some CCC led the opposition to the refinery, and remarkably ill-chosen words. took up the issue of the proposed 40(
His comparison to environmental groups to smokestack which SDG&E proposed as 2 organized crime - in association .with a factor in its planned expansion of its E1 “misinformed group of dissidents” - cannot Power Plant in Carlsbad. help heal the division in the community. Community Cause launched a petition dri
whom the remarks were obviously directed - stack, claiming the city’s action was a legis1 the members of Carlsbad Community Cause and one rather than an administrative one. If tl their supporters. the case, then the stack issue can be force( Considering that more than 1,900 registered public vote.
Carlsbad voters signed CCC’s petition against SDG&E has challenged the legality of the San Diego Gas & Electric Co.’s power plant petition, and the issue is now before the stack, Mayor Frazee has insulted 20 per cent of council.
the city’s voters. The council must decide whether the petit legal or illegal. If it is legal, the counci At a time when Carlsbad could be moving either reverse its decision approving the 40( toward unity on environmental issues, which smokestack, or put the issue to a public vote have seriously divided the community during the latter is expected if the petition is legal. last few years, Mayor Frazee’s comments only Quite obviously the concerns of those serve to add fuel to the fire. persons who signed those petitions were n Ironically, as Mayor Frazee was issuing his sinister as Mayor Frazee would imply. Mor scathing attack, SDG&E was breaking the ice on are certain, were merely concerned wit1 the city’s controversial refinery issue by future of the city.
the refinery. for the past three years over the refinery. This issue, more than any other including the that issue is dead, it’s best to let things co power plant smokestack issue, had served to and let C‘xisbad citizens unify for the future
They but will only inflame those persons to override the council’s 3-1 vote on the EI
I
announcing on that it was dropping it‘s plans for Carlsbad has existed in a potboiling situ
e
Published daily except Soturdoy and certain holidays by The South Coast Newspapon.
inc. 1722 South Hill St., Ocaamide, California, 92054. Telephone 433-7333. Entered ot
the Oceanside Post Office as Second Class Matter, under the act of Congress, March 1879.
Thomas F. MisseQt, Publisher
Daily 15‘ per copy at newstands
Sunday 25‘ per copy at newstands
By Carrier $3.25 per month Member of
Audit Bureau of Circuhation
The controversy which has swirled around San Carlsbad city attorney Vince Biondo
Diego Gas & Electric CoA planned expansion of pivotal key to &he petition’s legality, an(
its Encina Power Plant in Carlsbad comes to a make his decision known until tonight’s climax tonight. meeting. The Carlsbad City Council will rule whether ’ The council will obviously follow Biondc the petition filed by Carlsbad Community Cause on the matter, since he is the council’ to halt the expansion project is legal or illegal. advisor. The council has three choices - to rule the Biondo and the council members mus petition legal, and then either rescind its the petition for what it is, a request by mo approval of the plant‘s 400-foot stack or put the 1,800 Carlsbad residents to have a say issue to a public vote, or to rule the petition SDG&E stack issue, which is their righ illegal. petition is legal. CCC organized the petition drive against the The decision whether the petition is 1 plant expansion, and collected the signatures of illegal must be based solely on law, with1 more than 1,900 Carlsbad citizens, 20 per cent of outside influences. ‘ The decision cannc the city’s voting population. Eventually, more political one, although it is most difficult than 1,800 of those signatures were ruled valid - politics out of the issue. still more than twice as many as needed to If the council rules the petition leg: qualify the petition. SDG&E must decide whether it will go to I
but it is clouded by resentment for SDG&E’S illegal, then CCC must decide whether to t refinery plans, which have since been dropped. council into court. There is a general feeling that if it the refinery SDG&E is not likely to relish a court fig plans had not existed at the time of the petition Carlsbad, but CCC appears ready to do ba circulation, there would not have been enough loses the petition decision. opposition to the power plant stack issue to If it does so, it will be halting construc qualify the petition. the plant expansion at its own risk. There have been charges that SDG&E’s CCC’s primary concerns obviously are t dropping its refinery plan is a “carrot” to the plant expansion will increase pollution, ’ council to rule against the petition tonight. stack meets the requirements of bo But the four council members who will judge Environmental Protection Agency and t the legality of the petition must not let any of Diego Air Pollution Control District, t these outside factors which bear on the situation which have granted approval to the projec affect their judgement. If CCC loses its petition fight tonight, it SDG&E contends the petition is illegal, on the the whole community a favor by turn basis that the 3-1 council vote which approved efforts toward assuring that EPA and API the 400-fOOt stack was an administrative action, enforce its pollution controls, rathei
and not a legislative action, and that it is not continuing the warfare with SDG&E), subject to the referendum process. The company is now well aware that C;
Community Cause, which has not publicly residents will not sit idly by and all01
I stated its legal defense of the petition, nor the community to be despoiled, and sho challenge from SDG&E, obviously contends the everything in its power to keep the resic council action is legislative in nature. the area pacified,
That response to the issue is most impressive, fight the matter. If the council rules the 1
UhWG (yxz2iwa'e 0 1 -"@j
MEMORANDUM
DATE : July 21, 1976
TO: All Department Heads
FROM: City Attorney
SUBJECT: SDG&E Stack Referendum Opinion
The San Diego Gas & Electric Company specific plan
amendment for the 400-foot stack is of some importance
to your community. It seems to me it would be useful
for you to know some of the considerations on which the Council based their decision. opinion is attached. A copy of my
V''/
VINCENT F. BIONDO, JR. City Attorney
VFB/mla
Attachment
r * 0 e
CnY a= CARL§
1200 ELM AVENUE CARLSBAD, CALIFORNIA 92008
(7141 729-1181
VINCENT F. BIONDO JR.
CITY ATTORNEY July 19, 1976
rmmxmm MAYOR AND CITY COUNCIL OF THE
CITY OF CARLSBAD, CALIFOR'JIA
Memorandum of Law Re: Petition Protesting the Adoption of Ordinance No- 3456 which mended Specific Plan SP-144 to
Permit the Construction of a 400-foot Single Stack to Replace
Four Existing Stacks at the San Diego Gas & Electric Company's
Encina Power Plant.
On :.lay 4, 1975 the City Cowcil of the City of Carlsbad,
California adopted Ordinance No. 9456 which dmended Grdinhr;ce
No. 9279 by amending the Specific Plan adopted thereby to perm
the construction of a 400-foot single stack to replace the fou
existing stacks at the San Diego Gas & Electric Company Encina Power Plant. On June 2, 1976 a petition for a referendum on Ordinance No. 9456 was submitted to the office of the City Cle
This Memorandum is to advise the City Council on the law as it
applies to the petition and to the options available to the
Council in reaching a decision on the matter.
The petition was filed pursuant to Section 4051 of the
California Elections Code, which provides that if a'petition
protesting against the adoption of an ordinance is submitted t the Clerk within thirty days of the adoption of the ordinance and if the petition is signed by the required nmber of regis-
tered voters, then the effective date of the ordinance is susp
The duties of the City Clerk in dealing with such petitions ar
detailed in Sections 6051.1, 4051.2 and 4051.3 of the Electior
Code. Pursuant to Section 4051.1, the City Clerk is first re- quired to determine the total number of registered voters in t
City of Carlsbad as last officially reported to the Secretary of State by the County Registrar of Voters. By certificate of
the Registrar of Voters of the County of San Diego it was dctc
mined that there are 9,673 such voters in the City of Carlsbac
The second step is for the Clerk to count the number of siqnat
as they appear on the petition, taking them at face value if i:
the blanks on the petition are filled out, disregarding any
I
1 I 0 e
July 19, 1976 Honorable Mayor and City Council
Memorandum of Law
Page 2
signature which is not accompanied by a date, a precinct numb<
and address for the person signing. The initial prima facie c(
by the City Clerk, indicated that the petition contained 1,93(
signatures. This figure was substantially in excess of the 9r
or 10% of the total registered voters required for a referendi
petition. Therefore, the petition was formally accepted for
filing on June 9, 1976. When a referendum petition is filed
Section 4051.2 of the Elections Code requires thaL the Clerk
examine it further to determine the validity of the signature! Pursuant to law the City Clerk exercised her option to have tl
petition examined by the Registrar of Voters of the County of
San Diego acting as her deputy- The Registrar was asked to examine the petition as required by Section 4051.2 to determir
whether or not each signature on the petition was a genuine signature of a properly registered and qualified voter of the
City of Carlsbad, accompanied by a proper date, street addres:
and precinct number. That examination was completed on July -
1976, within the time limits prescribed by Section 4051.3 of 1
Elections Code. The examination of the Registrar of Voters
indicated that the petition consisted of 230 sections, contail
in5 1,926 total iiZ7iE.S. UL L~IUL kGtG1 1,225 were found tc bs
valid signatures of properly qualified electors of the City 0'
Carlsbad. The petition, with the Clerk's certificate and the results of the Registrar's examination attached, will be pre-
sented to the City Council at your meeting of July 20, 1976.
AT LL-L
'I have examined the petition and the Clerk's Certificatt
of Examination and have concluded that the petition is in pro]
fom, for presentation to the City Council. The petition will
appear on yoar agenda as a regular agenda item. A public hea: ing is not required. The Coilncil may determine that further
public input is necessary. They certainly are not required tc
do so. If the Council wishes to hear from the public they ma: subject to such terms and conditions as the Council might wisl to impose. The matter could be scheduled for a subsequent Coui
meeting or the Council could receive the input at the meeting
the 20th. As long as the City Council is proceeding in a rea:
able manner, there are no statutory time limits within which
Council's decision on the petition must be made. The manner
which the Council chooses to proceed in reaching their decisic on the petition is within the discretion of the Council.
The initial determination to be made by the City Counci when faced with a petition protesting the adoption of an
I
I I e e
July 19, 1976
Honorable Mayor and City Council Memorandum of Law
Page 3
0
ordinance is whether or not their decision is subject to the referendum process. If the Council is satisfied based on the
legal advice contained in this memorandum that the ordinance
in question is not subject to referendum, it would be appropr
for the Council to vote to deny the petition. Geiger v. ____ Board
of Supervisors of Butte County, 48 Cali 2d 832, 313P.2-d 545 (19
People’slobby, Inc. v. Board of Supervisors of the County of
Santa Cruz , 30 Cal- ApA6-3T action would conclude the natter at the City level. If the
Council decides it is subject to referendum, Section 4051 of
Elections Code requires that the Council reconsider the ordin
In reconsiderihg the ordinance the Council has only two optio The first option is that they may entirely repeal the ordinan
against which the petition is filed. If the ordinance is not
entirely repealed, the Council is required by Section 4052 of
Elections Code to submit the ordiriance to a vote of the peopl
5-
In order for the City Council to be fully informed in
regards to their options in dealing with the petition, it is
necessary to further analyze the matter in terms of the exten
baZy ~f Z&ciS:sncl lax hrhlch exists on the sulbject sf the peo
right to tlw initiative 2nd referendum-
..
In 1911 the Constitution of the State of California was
anended to expressly reserve people’s right of initiative and
referendurn. In that regard, Artj-cle IV, Section 1, was added
to the Constitution which detailed those rights, expressly in cluding the rights of the voters of a city to subject the
legislative acts of their City Council to the referendum proc
This sect2on was repealed and reenacted as Section 25,of Arti
IV,in 1966. It now provides as follows:
“Initiative and referendum powers may be exercised by
the electors of each city or county under procedures
that the 1,egislature shall provide.. -‘I
Pursuant to the authority contained in the above quoted secti
the California Legislature has provided by general law for tl-
of Chapter 3, of Division 4, of the California Elections Code
commencing with Section 4050. Since the referendum became pz
of California’s political process, it has been the subject of
great deal of litigation. The courts in dealing with this t)
of question usually begin with an analysis of the nature of t
referendum power itself. The California Supreme Court has
stated as follows:
exercise of the referendum power in municipalities in Article
“It is well settled that the power of initiative and
referendum, as exercised in this state, is the exercise
I
' a 0
July 19, 1976 '.
Honorable Mayor and City Council
Memorandum of Law
Page 4
by the people of a power reserved to them, and not the
exercise of a right granted to them (Citations). For
this state in the exercise of this reserved legislative
power, statutory ...p rovisions dealing with the refer-
afforded election statutes generally." Ley v. Dominquez
212 Cal. 587, 239 P. 713, 715 (1931).
The Attorney General of Cal.ifor.nia has characterized it as fol
.. that reason, and in order to protect the people of
a endum should be afforded the same. liberal construction
"The theory of the referendum is not that the electors exercise the veto power upon laws adopted by the
representative body. Rather, that when a proposed !.aw
is pro-tested the people become an integral part of the
enacting authority-ll 28 Ops. Cal. Atty. Geii. 351 at 355
' Citing Cline vo Lewis, 1.75 Cal: 315, 165 Po 915 (1917).
It is an established rule of law in California that referendum
provisions are to be liberally construed in favor cf the pro20
Geicj~r --_ v. Board of Supervjsors, 48 Ca3.. 2u 832, 839, 3i3 P. 26
545 (1957). Beck v. Piatt, 24 Cal. App. 3d 611, 101 Cal. Xptr
236 (1972). Since they deal with the reserved power of the
people, they should be liberally cor,strued to uphold the power
wherever that can reasonably be done. Collins v. City & Count . of San Francisco, 112 Cal. App. 2d 719, 247 P. 2d 362, 368 (19
The courts are reluctant, and properly so, to interfere ~ith t
process. Id. at 369.
-____
_________
-
Notwithstanding these broad judicial statements in favor
the referendum power, the cour-ts of California have developed
number of limitations on .the use of the referendum. One of th
clearest judicial expressions of a limitation on the referendu
power was made by the California Supreme Court in the case of
_____ Geiger v. Board of Supervisors of Bu'cte County, __ --- S-jpra- The court in that case unanimously held that a county ordinance irr
ing a sales tax was not subject to referendum. There is an ex
exception from the referendum for acts providing fcr tax levie and the case might well have been decided solely on that grour
However, the court went on to deal with an argument that since
the ordinance was no-k effective for thirty days, by implicatic
the only purpose of the thirty day delay was to allow the ref€
endum process to take place. The proponents of the referendm
. cited a number of cases indicating that the referendum power
should be liberally construed. The Supreme Court recognized t rule, but noted that consideration must also be given to the
t
, 0 *
July 19, 1976
Honorable Mayor and City Council
Memorandum.of Law
Page 5
consequences of applying it. The Court ruled:
"If essential governmental functions would be seriously
impaired by the referendum process the courts in.constr
ing the applicable constitutional and statutory provisi
will assume that no such result was intended. (Cit-atic
- Id. at page 549.
lhe court continued to explain the reason for the exception b is to prevent the disruption of the administration of the fis
powers and policies of -the governmental entity, Since the Cc
function was to fix a budget and set a tax rate and si,nce the
judgment could not be made without an accurate revenue estim?
it was deemed necessary that the County know when tax ordinar will become effective. For that reason the court concluded 'i the people had entrusted to their elected representatives thE
duty of inanaging the fiscal affairs of the community ar,d pres
ing the method of raising money.
The most significant limitation on the use of the refer
power is found irr a li.ne of cases holding that the power of
referendum may be <.nvoked only with respect to irLatters -ti-i&it 2
strictly legislative in character. Wheelright _.- v. County _I of ME --
2 Cal.3d 448, 85 Cal.Rptr. 809 (1970), Johnston v. City _-_____ of C1
mont, 49 Cal.2d 826, 323 P. 2d 71 (1958). Stated a different
acts which are found to be administrative or executive are bc
the reach of the-referendum process. Simpson v. Hike, ___ 36 Cal
Law, ___ 45 Cal.Aj~p. 3d 230, 119Ca1, Rptr. 292 (1975); Andrews -___- T
City of San Bernardino, 175 Cal. App. 2d 459, 346 P. 2d 457
Mck'evitt _______ v. City of Sacramento, 55 Cal. App. 2d 117, 203 P.1: .(1922) o The reason most often ad.vanced for this rule is thc
stated in the Ge2cjer -- case discussed above, that to, allow the
referendum to. be invoked, to annul or delay executive or adm:
trative decisions would destroy the efficient administration
the business affairs of a city. It is therefore necessary, : order to determine.whether or not the petition at issue is a
proper subject for refercndum,to decide whether or not the 01
constitutes a legislative or administrative act.
.. 125, 222 P, 2d 225. (1950); Lincoln Property Co. No. 41, __-- Inc.
The amendment to SP-144 was adopted by ordinance and
ordinances are usually assumed to be legislative enactments.
However, it is.well settled that the name given to the actio]
taken is of no consequence. It is possible to take administ: acts by ordinance and to take legislative acts by motion or
resolution. Hopping v, Council of the City of Richmond, 170(
605, 150 P. 977 (1915); Walker v. City of Salinas, 128 Cal. :
832 (1976). One of the best examples of this principle can :
I
July 19, 1976 0 0
Honorable Mayor and City Council
Memorandum of Law
Page 6
found in the case of O'Loane v. OQRourke, 231 Cal. App. 2d 774
42 Cal. Rptr. 283 (1965). In that case the court held that a
a resolution adopting a general plan for the City of Commerce
was subject to the referendurn. The court did so in the face c
the argument that the referendum did not apply since the gener
plan was not a zoning ordinance and had no legislative effect
and was, therefore, an administrative or executive act and not
subject to the referendum. The court in O'Loane stated the rc
as follows: _-
"If the adoption of the general plan is legislative in character, then the referendum is available to the
people." Id. at page 288. _.
The court continued to quote with approval the following rule
62 C.J.S. Municipal Corporations:
"...'The form or name of an act of municipal authorities such as whether it is called an ordinance or a resolutic
is not determinative of its legislative or administrativ
nature, with respect to whether or not it is subject to
iilitiaiive ail: ~S~~Y-S~I~-L~. ''I Id. a'i phges 26S, 2C9.
The question then is what is determinative of the nature of SL
acts?
__
The courts have laid down a series of tests for determir
whether or not a particular action of the City Council is legislative or administrative. The court in O'Loane, again
quoting with approval from 62 C.J.S. Municipal Corporations,
stated the test as follows:
"...'Actions which relate to subjects of a permanent
or general character are considered to be legislative,
while those which are temporary in operation and effect are not. Acts constituting a declaration of public
purpose or policy, and making provisions for ways and
means of its accomplishment, may be generally classified as calling for the exercise of legislative power. As
has been said, the crucial test is whether the proposed
ordinance is one making a new law, or one executing a
law already in existence; and acts which are deemed as
acts of administration, and classed among those govern-
mental powers properly assigned to the executive depart- ment, are those which are necessary to be done to carry out legislative policies and purposes already declared by the legislative body, or such as are devolved on it k
the organic law of its existence.'" Id, at page 289. -
,
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0 e
July 19, 1976
Honorable Mayor and City Council
Memorandum of Law
Page 7
x In Martin v. Smith, 148 Cal. App. 2d 751, 7 Cal. Rptr. 725
(1960) the court quoted with approval the following rule on
this subject from McQuillan on Municipal Corporations (3d ed.
...I The power to be exercised is legislative in its I1
P nature if it prescribes a new policy, or plan, whereas, it is administrative in its nature if it merely pursues
a plan already adcpked by the legislative body itself, 1 some power superior to it. "' __ Id. at page 727.
Another statern2nt of th;! test is set forth in FlcKevitt ~__- v. Cit ___
of Sacramento, 55 Cal. App. 117, 203 P. 132 (1921) as follows
"Acts constituting a declaration of public purpcse,
and rrialcing provision for ways and means of its accom-
plishment, may be generally classified as calling for
the exercise of legislative power. Acts which are to
be deemed as acts of administration, and classed among
those governmental powers properly assigned to the
executive department, are those which are necessary to be done to cd1i-y out legislative policies ais ptir--
poses already declared by the legislative body, or such
as are devolved upon ik by khe organic law of its
existence." Id. at page 136.
The tests as to whether or not a matter is legislative or adm
trative as set out above have been repeated almost verbatim b
Appellate Courts when they have been called upon to resolve t
kind of question. See Reagan v. City of Sausalito, 210 Cal.
2d 618, 26 Cal. Rp'cr. 775, 777 (1962).
In applying these tests to the question of whether or n the adoption of a general plan is legislative or administrati
the court in O'Loane v. O'Rourke, Supra reasoned:
"The adoption of the general plan is, in effect, the
adoption of E policy, and in many respects, entirely
new policy, The plan is of permanent. and general
character, it is a declaration of public purpose and, as such, supposedly sets forth what kind of a city the
community wants and, supposedly, represents the judg-
ment of the electors of the city with reference to the
physical forin and character the city is to assume. Und
the circumstances we can discern no useful purpose whic
would be served by preventing the exercise of the
democratic process. Namely, the permitting of a vote
to be taken on the issue by the electorate of the city.
Id. at page 289. -
8
0 0
July 19, 1976 Honorable Mayor and City Council
Memorandum of Law
Page 8
In McKevitt the action of the City Commkssioners of the City
was subjected to referendum and the acquisition was turned
'down by the voters. After the election the whole matter was
ruled not subject to referendm and the origj.na1 action of thc
City Counci-1 was affirmed on the basis.' that the decision was
4 an administrative matter and not legislative and therefore no'
subject to referendum. Applying the tests to the facts of thl
case the court held that the city had accepted a bequest of
money pursuant to a will to be held in trust for the acquisit of a park. The court ruled that the acceptance of that reque,
was the legislative or policy judgment and that the carrying out of the trust in selectincj the particular park to purchase
was an executive or administrative decision. Martin v. Smith,
-_ Supra j-nvolved a dispute in the City of.Sausalito over use of
substantial portion of the city's bay front. The land in
question had been granted to the city 'by the state su'bject to
a lease for commercial purposes for'a yacht harbor. The city
swi-mming pool, shops and parking. A referendum petition agaii
the ci.ty's action was ru_led jnvalid, the court holding that i
leyi-siative act was the City's dcceptdnce of the lai1~2 gran'i.
Determining that a bar and! the other uses were preferable to
a yacht harbor, was held to be an administrative act since bo1
involved commercial activity which had already been approved 1
the city when they accepted the land. Tnboth NcKevitt and !\:arl
* the 'matter involved,a city park and the development of the wal
front, were of significznce, to the community. Nevertheless , !
legislative. decision to have a park somewhere in the comrnunit:
precluded a referendum on the kind of park or its location an(
the legislative decision to have commercial development on thi
water front precluded a referendum on the kind of development.
of Sacramento in voting to purchase a particular park site
approved a sublease of the lanC for a bar and restaurant, motc
The above cited cases and tests offer some guidance in
determining if Ordinance No. 9456 is a legislative or administ
resolves all the questions involved. As the Attorney General
states the matter:
act, but it is difficult to formulate a rule which satisfactor
"Apparently, the courts make the distinction on a case by case basis by reference to the traditional way in
which governmental functions are classified. " 55 Ops.
Atty. Gen. 383 (1972).
In attempting to apply these tests to Ordinance No. 9456, I cz
App. 3d 573, 581, 104 Cal. Rptr. 793, 798 (1972) who character
. appreciate the view of the court in Duran v. Cassidy, 28 Cal.
* them as "amorphous distinction (s) 'I.
I
0 u
July 19, 1976 H?n?rab,e HayQX and City 6QUnGiL
Memorandm. of Law Page 9
In order,to apply these amorphous distinctions, it first
is necessary to determine the facts. As Council knows there
were power generation facilities with stacks located at 'Encina
prior to the i-ncorporation of the City of Carlsbad. The event
of significance to this matter began in 1971. During that yea
Utilities zone. At the same tine portions of the San Diego
Gas G Electric's property surrounding the Encina Plant were
annexed to the city. The entire company holdings were then
zoned P-U. At approximately the same time, August of 1971,
the City Council unanimously adopted Ordinance ??o. 9279 which
approved a specific plan for the approximately 680 acres of
company holdings including the Zncina Power Plant. The P-U
zone recluired that: a specific plan be adopted by the City Coun after public hearings in conjunction with the rezoning of a
piece of property to the Public Utilities zone. The plan as
adopted inclu-ded the provision for five electrical generstiRq
units. My revi-ew of the Planning Department file and the City
records on the matter indicates that there is no direct
reference to any approval for the manner of disposi.ng of the
prcd.l.?ct s of cornb?~ c: t i. ~n re s 11.1. t. i. ng f: r om t. h e e J. ec t.r i c a i g ener at i o activity. Conditj-on No. 5, of Section 2, of Ordinancn, No. 9279 d
provide that the height and configurati-on of future power
generating buildings and structures must conform to the facili
existing when the ordinance was approved D By implication that
B the Municipal Code was amended to provide for a P-U Public
. included stacks since there were stacks already in existence.
.. It is my opinion that Ordinance No. 9275 (SP-144) included
. approval of stacks as the permitted means of disposing of the
products of-cornbustion fron the Encina Plant. There is no
disagreement, 1 think, that the San Diego Gas & Electric Compa
for Encina 5 pursuant to the approvals contained in, Oidinance
No. 9275 if it could be huilt using a fifth stack equal in
height and configuration to the four existing stacks. San Di-e
Gas h. Electric Company, however, desired to replace khe four
existing stacks with one large single stack which would extend
feet above the le17el of the existing stacks. In accord with
Condition No.5, of Section 2, Ordinance No. 9279 it was necess
for the- company to apply for, and receive, approval of an amen
ment to specific plan (SP-144) in order to construct the sing1 stack. That approval was granted by the City Council by thc
adoption of Ordinance No. 9456.
would be entitled as a matter of right to a building permit
There is no doubt that a referendum may be used as a mea
of attacking zoning ordinances enacted under the State Plannin
Act. In Johnston v. City of Claremont, 43 Cal. 2d 826, 837,
323 P. 2d 71, 78 (1958) the court stated that:
I 8
.* 0 *
July 19, 1976 Easns~abZc Mayor and city CwnCil.
Memorandum of Law
Page 10
"...Whenever the Council acts in its legislative
capacity, the action it takes is subject to the
action falls into one of the exceptions provided for in the Constitution.
The right of referendum with respect to zoniny
ordinances is essei,tial for the protection of the rights of the electors of each city."
.. .. constitutional right of referendum unless such
c e
It is my opin5on that the City Council's act of rezoning the
San Dieyo Gas & Electric's propcrty Public Utilities was a
legislative act and subject to the referendum. The question
then becomes whether or not SP-144 was also a legislative
act. Specific plan (SP-144) was adopted pursuant to Ordinancc
No. 9260 which adopted the P-U zone. ..Section 13.56 of that
ordinance requj-red that the specific plan provide, among
other things, for the identification of which uses would be
permitted on the subject property. In my opinion the operati1
decision in a land use matter is the decisicn which fixes the
uses in tne zone. In some cases that is done by the rez03j.n~~ of the property and in other cases the uses are not fixed unti
a plan is approved. In the Planned Community zone the uses are fixed by a master plan with the manner of those uses bein?
left to precise plan approval. The approval of a master plan _. in.sucli cases has been held to be a legislative act. Lincoln
.Froperky _____ CO. No. 41, Inc. v. Lai.7, 45 Cal, App. 3d 230, 119 Cal - Rptr. 292 (1975) e In the P-U zone there is only one plan whic accomplishes the functions of a master plan, in that it sets
the uses, and also accomplishes some of the attributes of a precise plan in detailing the manner within which those uses
may be developed. It is therefore my opinion that the origin;
specific plan adopted pursuant to Ordinance No. 9268,fixing
the allowable uses for San Diego Gas & Electric Conpaiiy propel
was a legislative act,
.. We are left with a final question of whether or not the
amendment (SP-144A) adopted by ordinance No. 9456 was a
legislative act. In answering that. question it is important to keep in mind what, in my view, is the most essential fact 1
this whole discussion. And that is the natzurc of the ordinant
before us. Ordinance No. 9456 is an amendment to an existing
specific. plan. It does not add or take away any of the uses permitted for the site in question by the original s1xcifi.c p: What it does do is, pursuant to Condition 5, of Section 2, of ..
;
,.
.I '. e- July 13, 1976
Honorable Mayor and City Council .
Memorandum of Law
Page 11
Ordinance No. 9279, approve construction of a structure in ex(
of the height.of the existing structures. In applying the te!
discussed above to these fact;s,it is necessary .for us to detc:
scribed a new policy or pursues a plan already.adopted by the
the Encina Power Plant provided for dj:sposal of the products
of combustion, via smokestacks. Therefore, it is my view tha the City Council in approving the original specific plan wj.th
five electrical generator units also approved smokestacks as
a method. for dispersing. the products of combustion. If that
so, all tha-t is approved by the amendment of thespecific plan
a dj-fferent kind of smokestack. It would be appropriate then
to conclude that the amendmmi simp]-y carries out the Council
previously approved plan. That is, disposing of the plant 's
smoke by stack. The. decision of a permanent or general charal
was to allow the plant with smokestacks; that being the
legislative act. The judgment that. the smokestack needed to
he bigger because of stricter air pollution requirements COULI be classed as an achinistrative decision implementing the pre.
viously made legislative judgment. I think the matter could I
seen most cl-ezziy if tne coxnpmy's application was for a spec
plan amendment to allow the four existing- stacks to be raised feet. I think it would be beyond argument that the Council's
judgment in approving the power plant with smokestacks ha3 fj.:
the legislative policy for the land development in that area, . that a decision that the stacks needed. to be a few feet highe:
would sirnply be an administrative decision carrying out the
previously made legislative judgment. The same analysis is cc
sistent with the cases cited above. The legislative judgment
was to have a generating plant with stacks at that .location.
subsequent decision to change the kind of stack was an action
in furtherance of the previously adopted plan. 4
'mine whether or not the approval of the 400-foot stack .pre-
City Council- As I have indicated, the original. ,I approval of
8
The case most directly on point which supports this ana
is Lincoln Property Co. No. 41, Inc. v. Law, 45 Cal. App. 3d
proposed for the foothills in the City of San Carlos. The pr( in question had been zoned Planned Community and a master
development plan had been approved. The property chanqed hanl
following its acquisition by Lincoln Property o The City then
adopted a new master development plan for the land. The deve.
then submitted, a precise plan of development for his project.
citizens group sought to subject the Ci.ty Council's approval 1 that plan to the referendum. The court found that the adoptil of the precise plan was not subject to referendum. In reachi
. 119 Cal. liptr. 292 (1975). The case involved a development
I I
0 0
July 19 1976 IIonorahie Hayor and City Council
Memorandum. of Law
Page 12
that deci_sion.the court discussed almost all of the same case<
which I have discussed previously in this memorandum and notec
'that the power of referendum is to be liberally construed wher
ever possible and recognized the exception to that rule that
the power only applies to legislative matters. Of special
c importance to the court was the test from Martin v. ___ Smith,
Supra, indicating th2.t a legislative judgment prescribes a
.. yew plan wherein an administrative judgment carries out a
plan previously approved. In the court's opinion the legisl-al
act, governing the subj.ect property, took place when the City
Council. approved the new master plan of development. It is
important to note that the zoning of the property itself was
not, in the court's opinion, the operative legislative judg-
ment. As I have discussed above, the court concluded, as do
I, that in a Planned Cornrnunity zone the effective legislative
act is the approval of the master plan which fixes the uses
for the property. The comt found the precise plan to be no
plan. The Coancil's act in zoning the San Diego Gas & Electr:
land P-U is directly comparable to the zoning in Lincoln ______
Encina Plant's ultimate development is directly comparable to
the approval in Lincoln Property of the master development pl;
Both such actions were legislative in character and subject tc
referendum, The arrendment to the specific plan to vary the t:
and height of a previously approved use is comparable to the
approval in Lincoln Property of the precise plan for the deve:
ment, both of which are achinistrative acts carrying out the
previously- approved Legislative policy and are, therefore, no-
subject to ref erendurn.
more than the implementation of the previously approved mzstei
- Pro,perkV _- -. -.-.- ._ ._ . to P-C. The ~.i>pi-fi\~al 05 the specifie pl~n foi- the
There is another independent ground which suQports the
conclusion that Ordinance No. 9456 was an administrative act.
Condition No. 5, of Section 2, of Ordinance No. 9279 limited
the height of future power generating buil.dincjs and structure:
to a heighk and confi-guration similar to the facili-ki-es that
existed at kha.t time. A height limit of 35-feet Tias imposed
on the balance of the company's properties subject to future
specific plan approval. The height limit then for the power
generating building, including the smokestacks, was fixed in
1971 equal to the height and configurati-on of the existing
facilities subject to exceptions to be granted by specific pl
Johnston v. City of Clarcmont, Supra teaches that an ainendme to a legislative act 02 necessity must be a 1.egislative act.
Therefore, a rezoning of a property is subject to referendum
well as the original zoning. The court in Johnston, however,
I
0 0-
July 19, 1976
Honorable Mayor and City C,auncil
Memorandum of Law Page 13
also made clear that it is an entirely different situation whc
an ordinance itself confers upon the City Council or an officl
.the power to grant an easement or variance in particular case:
The court stating:
"In light of.. -the above authorities, where the wording
the desired revision, the act is legislatibi and not
administrative. On the other hand, where regulation
is changed pursuant to a provision of an existing
ordinance permitting an administrative varimce on the
finding bf certain facts, the act is administrative.
(Cj-tation)". Id. at page 76.
a of ordinances must he changed in order to accomplish
_1
It is possible to argue that since Ordinance Eo. 9279, which sets the height limit by its o:m terms, provides for exception
0rd.inance No. 9456, approving such an exception, is in the nat, of a variance and is therefore an administrativ.e act and is no
subject to referendum. The matter is not beyond doubt since
while the original speci.fic plar. ordinance provides for the
exception: i.t docs ~ot provizc 21117 skandai-Gs. The tot.ai iack
c;f s-lal;d;lrds makes it somewhat difficult to conclude that it i:
an administrative act under the Joh3sto.n rule.
problem which must be considered before reaching a conclusion
The.analysis detailed above which leads to a
conclusion that the ordinance is a-dministrative has some limits
At some point a difference in degree can be a difference in kir
If 1 can be allowed a poor metaphor: Assume you have given yor: son permission to keep two cats in the backyard and that the
family has not previously had any pets. made a legislative judgmmt to allow your son to have two anima for pets.
two cats for two elephants, under the theory the17 are bok11 anim
and you made a decision to allow him to keep animals. The poin
being that at some point the increase in size reaches such a
scale that a new use is involved constituting not the adininistr tion of a previous legislative policy but a new policy. In ord to determine if this princi-plc applies it is necessary to turn .
the cases that my research have indicated bear most directly on
this issue.
'My research indicates that there are other aspects of th:
. on *his matter.
If YOU dli, YOU have
However, that fact does not allow your son to trade
The issue before the court in the case of Millbrae
. Association for Residcntj.al. Survival v. City of Millbrac,
262 Cal. App. 2d 222, 69 Cal. Rptr. 251 (1968) was whether
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July 19, 1976
Honorable Mayor and City Council
Memorandum of Law
Page 14
b I
or not the changes in a precise plan approved by the Planning Commission were so substantial as td be tantamount to a re-
zoning of the property. The property in question was zoned
Planned Development, A "Project General Plan" was approved
providjng for seven 6-story apartment buildings. This plan w;
subsequently amended to provide for three high-rise apartment buildings and seven quadplexes instead of the original seven
C-story buildings. The developer then applied for approval 0: a "Project Precise Plan". The parallels to the previous dis-
cussion of Encina arid the Lincoln Proprty case 21-e obvious: the procedures are substantially the sixve. The project generi
plan required City Council approval but the precise plan was
only subject to Planning Commission review. The precise pl.an
was approved which made the following changes in the project:
Seven units were added to the high-rise'buj.l.diiigs; part of a
pitch and putt golf course was eliminated; parking spaces were
increased and two of the three high-rises were relocated, one
from 70-feet distant to 35-feet distant froin'the plaintiff's
property. At the time oftrial two of the quadplcxcs hac3 heel
constructed anci $600,000 spent on developiny the site. The ti court invalidate6 the Eianninq Cornrnissioii appi-oval sii the groi
that the changes amounted to a defacto rezoning of the proper1
which could only be accomplished by the City Council. The COI
held as follows:
, "In our view, while the change in the number of
.. apartments in each of the hiqh-rise buildings
would properly be the subject of the precise pian
under the ordinance so long as it did not increase
the "general size" of the buildings as delineated
in the general plan, the other changes amount to a
substantial alteration of the general plan sj,nce they materially and fundamentally change the
location of two of the high-rise buildings and the size of the parking areas and the open areas.
These were specific elements of the general pl.an
incident to the zoning of the PD district and their change and alteration amounted to a rezoning of the
district. We are persuaded to this conclusion by
the very nature of the PD district. Although the
creation-of such a district allows for greater flex-
ibili ty and diversifj-cation in the location of
structures and other site qualities and their, uses I
once these elements are delineated <.n the general
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July 13, 1976
Honorable Mayor and City Council
Memorandum of Law
Page 15
plan they constitute material and indispensible
attributes of the district itself. In other
words, the zoning characteristics of the district-
consist not only in the classification of the district to PD but in the components of the
general pl.an accompanying the appl-i catj.on for the
creation of the d;.strict and any subsequent amend-
ments to the plan that rnay properly be adopted.
Accordingly, any substantial'change or alteration
in the actual physical characteristics of the district and its configcration amount to a rezon-
ing of the district and rnay only be accomplished
pursuant to the provisions of the state statutes
and the local ordinances consistent therewith pro-
viding for zoning and rezoning." - Id. at pages 267,
268.
The project in Millbrae consisted of approxirmtc1.y 16 acres.
FOK a project of that size elininating a portion of a small
golf course and moving two buildings were found to be a sub- stani:j.a 1 change constitutin5 a rezoning 05 the pxoperty. The
San Diego Gas & ,Electric property is substantially I.arger
in size (680 acres) than the property in J.Ii.llSrae. The change
in the San Diego Gas & Electric project removes four existing
stacks fron the top of the building and replaces them with a
single stack, larger in dian!eter, located on the ground and
extending 210-feet higher into the air. An argument can be
made that this change is greater in scope than the one in
Millbrae and is , therefore, also a rezoning of the property.
Millbrae was offered in support of the referendurn j., Lincoln
-I___ Property. The case was found distinguishable on the grounds
that the changes in Millbrae anounted to a "substagtial alter
ation" of the master plan while the precise plan ih Linco1.n
Property decreased rather than increased the general sizeof
the buildimgs. This distinction can not be made hcrc since
the change is larger in scope and increases the building size
and height. The argument can then be made that the 400-foot
stack is a change in the plan of sufficient size to beconic a
substantial alteration j.11 the plant as prcviously approved,.
that is so, it is a rezoning of the property; a 1egislnti.vc a
and is subject to referendum.
-----
__II- ___-
The other case in point on this issue was Wlicel.ri.qht v. _.___ __ ____ __ of Marin, 2 Cal. 3d 44S, 85 Cal. Rptr. 809 (.1970), wmi Count+ invo vE3-nn attcinpt by the voters to subject to
referendum an ordinance by the Board of Supervisors of
Marin County. The County had rezoned 2,200 acres
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Honorable Mayor and City Council
Memorandum of Law
Page 16
of land to P-C, Planned Community, and had by resolution adop. a master plan,for the development of the community. The Mari:
County Code required the Board of Supervisors to approve a
ned community. The ordinance which was the subject of the
'precise development plan for any developments within the plan
refexendurn petition was an. ordinance approving a precise plan
for the construction of an access road into the development. 3ne of the issues. place6 directly before the California Supre
Court in this case was the question of whether or not that
precise plan ordinance yas suhj ect to referendum. Proponents of the development argued that the ordinance was passed for t
purpose of carrying out a previously declared legislative pol
that the planned community should develop and was therefore
administrative and not legislative. The court disposed of th
contention as fo1.1ows:
o for a portion of the planned comunity. This plzn provided
"Roadways are of sufficient pubiic interest and
this orciinance as being legislative and,to be well
within the referendum pos'rers reserved by the pe0pJ.e. "
- Id. zt p=.'jzs 458, 115.
concern to weigh the scales in favor of construing
Justice Mosk dissented frox sox other aspects of the courts
opinion regarding the way in xhich the court had construed th
referendum law. In his view the court was taking an unduly
restrictive view of the people ' s referendum power. He quoted with approval the statement by the court in the case of NcFad
v. Jordan, 32 Cal. 2d 330, 332, 196 P. 2d 787, 788(1348) as
follows: -
".,.'The right of initative is precious to the
people and is one which the courts are zealous
to preserve to the fullest tenable measure of spirit
as well as letter. ' I'
Mosk, notwithstanding his dissent, agreed with the majority t
the ordinance in question was subject to referendum. Wheelri --
turned on the fact that the precise plan approved an access
road which had not been considered in the earlier adopted mas
plan. The court in Lhcoln Property -- distingui.shed j.t on that
basis , noting that the decisive factor was that the addition
the road was a, substantial change in the previously approved
plan. If the stack is determined to be such a substantial
change which had not previously been considcred the rule of
Wheelright would apply and the ordinance would be subject to
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July 19, 1976 0 0 '.
Honorable Mayor and City Coun'cil
Memorandum of Law Page 17
referendum. An argument can be made that the chancjes in the
plant are of sufficient scale a-nd invo.lve sufficient impact on the surrounding property and the community to bring the ca
.within the rules of Wheelright and Millbrae.
After considering all of the above discussed authoritie
your attorney is inclined to think that it is more likely tha
e not that a court would determine that Ordinance No. 9456 was-
and administrative act. There is more authority Cor that
position than the reverse. There is no doubt that the Counci
has approved five generating units and has appro.vec! stacks as the means to dispose of'thc products of combustion from t-hose
units. stack seems to me to he
some new plan. It must, however, be recognized that this j.s
a matter upon which reasonable people can differ. I think th
Council would be justified in reaching, a- contrary conclusion.
What is a "substantial change" after a.ll_, but a judgment whic
must he to some extent subjective wl>ether it is made by your
attorney, the Council or a court.
The dehision on what kind of
carrying out the previous]-y ap:_>roved plan and not to involve
if the City eourlcii is satislied, based oii 'die advice
in this memorandm, that my view that Ordinance No. 9456 was
an administrative act is correct, your. action would be by mot
to reject the petition on the grounds that the ordinance is 11
subject to referendum. If the City Council fincis the argumen for the referendum persuasive, your actio12 would be to r&coIIs
the'ordinance and either repeal it or call an election. If t
Council is not sure whether or not the referendurn appltes the
is a line of cases dealing with the initiati-ve power which ho
thnk the proper action in such cases is to resolve the doubts in favor of the people's right to vote.
argue these cases do not apply to referendum but in my opinio
the principles involved are the same. In Mu11:ey v. lieitman,
64 Cal. 2d 529, 50 Cal. Rptr. 881 (1966) the California Suprc.
Court sta'ied its view that questions of whether or not a meas can be validly voted on should be decided after the elect-ion. In Farley v. Healey, 67 Cal.. 2d 325, 62 Cal. Kptr. 26 (19G7),
same court overruled a challenge to a ballot measure on the 17
Nam War. The court rulcd it was not the place of niinisterial
officers to decide on the validity of ballot measures:
It is possible to
__-__
__
"These questions may involve difficult lecjal. issues
that only a court can determine." Id. at page 28.
The court concludcd that such measures should go on the ballo unless a court directed otherwise. The rule of these two cas
Gayle v. Ham, 25 Cal, App.. 3d 250, 101 Cal. Rptr. 628 (1972) a County Clerk, on advice of the County Counsel, declined to The court hold that they had
__
has been softened by subsequent decisions by lower courts. I
. ' process an initiative petition.
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July 19, 1976
Honorable Mayor and City Council
Memorandum of Law
Page 18
no mandatory duty to decide whether or not the measure was
invalid before the election and ordered the Clerk to put
.it on th.e ballot. The court noted that it would be proper to
keep it off the ballot in some cases hut only where it was
"clear beyond question" that the measure would be in17al.i.d if
a enacted. The norma1 process should only he shortcut where th ". .invalidity of the proposed measure is cl.car belrond a douh
Id. at page 634. Duran v. Cassidy, 28 Cal. App. 2d 574, 104 C
Rptr. 793 (1972) 2s tc the sane effect. That case involved an
initiative seeking to preclude the City of Visalia from ownin
and operating a public golf ccurse at a city park.
Clerk refused to process the petition. The court held that
since they were unable to find that the proposed ordinance v72
patently inval..id and in the absence of cornpelling reasons for
judicial interference with the people 's right to initiative ,
the petition should be processed. Again the court stated the
rule as fo11ows:
- -___-
?'he Cj.ty
I*. . .We have no alternative but t.o commar,d respondent
to accept the petition and to perform his duties
in coneectj en th.erw?-th 1inl.c~~ ve find t1;at ; he17ond
question, the proposed ordinance is invalid. I' Id. at
pages 550, 798.
While I have concluded ik is more
-_
likely than no-t Ordin . No.' 9456 is an administrative act, I an not able to say that
.. so beyond question or doubt. It is entirely possib1.c a court
would find.it to be legislative. The cases just discussed wo
then seen to compel me to advise you to reconsider the ordina
For two reasons I decline to do so. First, inthe case most
directly in point on the basic issue of this memorandum, Linco
Property CO. Koa 41, Inc. 17. Law, Suprar the court, complete1 ignores all of these initiative cases in reaching its decisio that the referendum did n~t apply and a hearing was denied by
the California Suprene Court. Second r the precedcntial value
of the cases has been called into question by khe case of
People's Lobby, Inc. v. Board of Supervisors of the County of
San-ta Cmz, 30 Cal. App. 3d 863, lr6- Cal. Rptr. 6GG (1973). issue was an initiative ordinance containiny a number of
restrictions on development along thc Santa Cruz coastl;.nc.
The Board of Supervisors voted, not to put it on the ball.ot an'
the proponents, sued. The court affirmed the ru1.ing of the' tr
court that the proposed measure was invalid and that no elect
was necessary. In reaching their decision the court recogniz
the rules of Mulkey v. Reitman, Supra, Farley v. II&al.cy, Sup
____
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- .-_-___ -_
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July 19, 1976 Honorable Mayox and City Council
Memorandum of Law
Page 19
.*
and Gayle v. Ham, Supra, but nevertheless concluded that sinc
the trial court had decided the matter on the merits, before
the election, they would too. A hearing in theesupreme Court was al.so denied in this case although JustiwMosk and Tohrinc
would have heard the matter. The fact is that despite strong
ju-dicial statements in favor of the initiative and referendum
poxer in cases like Mulkey, Farley and Gayle, local governmeni
bodies continue to vote not to put things on thc ballot and 01
imny occasions those actions have been sustained by the court:
The discussion to this point should gj.ve the City Counc:
sufficient guidance to allow your body to make a decision as
to :ghether or not Ordinance Xo. 9456 is subject to referendum.
In this case, as a result of an opinion from the Fair Politict
Practices Cornmission, the Mayor will not be aI.1owed to parti-cj
It seems to me the votes required for thc various options befc
the Council should be discussed. There is no requirement thal
the Council formally vote to zccept a referendum petition. TI
Clerk's certification of the results of her examination of thc
peti.tion , f.5 they f ind that the requirements for a ref crcndum petition - have been met, is sufficient ir, itself to place the
ricc.'cLer becore the Cl.ty Cs.;rizil for ;cc; LA~c. If the petitj.02 i:
in proper form, and if the Council determines it is a proper
matter for referendum, the Council's duty becomes a minister%;
one. You have only two choices ... to repeal the ordinance or to call the election. Therefore, a t~f70 to two or t.ie vote on
a motion to table or file the petition would consti.t.ute RO
action. A tie vote would not be sufficient to file or table
the matter, The petition would then be properly before the
Council and they would be reqcired to exercise one of the two
remaining options. A majority of the quorum is sufficient fo:
the jnotj-on to table or file the petition:
members, three "yes" votes would be required for s$ch ackion.
With three voting mernbers a 2-1 vote would be suffi.cj.ent.
same vote requirements woulci apply to the option of '.calI.ing
an election. If the Council elccts the option of repea1j.ng
the ordinance r three af f irinative votes would be reyuj-red in
order to accomplish that action.
options v~ou1.d prevent CouRcil action, it is 1ny opini.on that
should any interested parties seek recourse to the courtsI a
writ of marrdate could be obtained ordering the City Council
to exerci-se it,s discretion in the matter and either call the
election or repeal the ordinance. It is also possible the c01
would reach the merits of the matter directly arid dctcrmrinc
that the referendum did not lie.
..
With four voting
Thr
(Ca1iforni.a Government Code
Section 36936). In the event a two to two vote 011 any of the
It also seems to me that some of the consequences of thl
exercise by the Council of the various options should be
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July 19, 1976
Honorable Mayor and City Ccuncil
Memorandum of Law
Page 20
discussed. No. 9456 wil-1 remain suspended. If the Council .votes to file the petition and that action is not challenged in court.the
. matter is resolved. The ordinance would become effective and
build.j.ng permits could issue. If any concerned individual desi
to challenge that decj-sion I the appropriate mechanism in my
opinion would he a petition for writ of mandate to the Superic
C~urt, asking the court to issue a writ comandi,-.q the City
Council to consider the petition on its merits and to carry 01:
its statutory obligation to reconsider the ordinance and eithc
repeal- it or submit it to the voters. The ordinance would rem2
suspended during thhe pendency of such action and would not Ixc
effective until it was finally resolved. If the Council deter
to repeal the ordinance your action is to direct your attornel
to p rep a r e the necessary documents. If the ordinance is
repealed the Cou~cil may not reenact it for a period of one y'c
(California Elections Code, Section 4052) .
As long as the petition remains unresolved, Ordin;
The opti.on of calling an election is mor& complicated, Since there is no regul-ar municipal el-ection occurrj.ncj within
time limits set 5:; the statutz, th2 mattzr zust Se S-IJ.?Y~ tted t
the voters at a special municipal election - Tiiis election liluc
be he1.d not less than ~e\~enty-four, no more than ei-ghty-nine c
after the date 02 the City Council's decision on the matter.
special. municj-pal election must be administered by the City C1 and results in some substantial costs to the City of Carlsbad.
It is possible to act to consolidate a special rnunj-cipal elect
with other elections. In that event the election is adrninistc
by the Registrar of Voters and the costs to the Ci.ty are minifi
The City Clerk has inforired me that if the City Council makes
this decision in regards to the petition after the 5th of Aug~
and before the 20th of August- it would be possible to consolic
the special municipal election with the November ge'neral elecl
If thhe City Council wishes to call an election it is my recom-
necessary docu~ients at your August 17, 1.976 meeting. If ally
interested party desired to challenge t.hat decision, in my opinion the appropriate mechanism would be an action in Super:
Court seeking to enjoin the election. In the event1t:he electic
is called, the ordinance does not become effective until a
majority of the votcrs,voting on the ordinance, vote in favor
it. If a niajority of voters vote against it, the oi:dj.nance
may not be aga'in enacted by the Council for a period of one yc
after the date of the el.ection (California Elections Code,
Section 4052). In the event the City Counci.1 determines to have an election, I will advise you further in regards to the
..
mendation t.liat you dhct. the -City Attorney to retufn with thf
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July 19, 1976
Honorable Mayor and City Council
Memorandum of Law 'Page 21
form of the measure, arguments for and against the proposal,
documents on Auyust 17, 1976.
.and other matters incidental thereto when I return with the
(I I regret that there is no simple answer to this matter.
The Council should ur,derstand that it is not unusual that a
,City Attorney's opinion or a City Council's decisj-on, for
that matter, is not sufficient to resolve these kinds of
controversj-es. . It is perfectly appropriate that the final-
decision rest .with the courts. That is how we resolve dis-
putes in this co-dntry. This is a matter of importance and
definition the courts are the proper form to reach a decision
in that kind of matter. One would hope that wouI.d not he
necesszry but in this case that decisj.on rests in the hands
of' other than those of the City Council.. Recognizing all of
the above, it is my ad-vice that the Citl7 Council. consider thi
opinion as just one of the matters heari.r,g on the decision
and reach a judgment based on their own view of what is best
for the c=ommiir!~.t-y. :Cn rnv opi.nion there i.s support in the law
for any decision the Councii might make and I am prepared to
defend any such decision-
one upon which reasonable peogle can differ. Alrnost by
VINCENT F. BIONDO, JR.
City Attorney
VFB/mla
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e- e
P.O. BOX 90
OCEANS ID E. CALI FOR N I A 92054
hg
T. F. MISSETT
Publisher
July 76, 19‘
Dear Mayor and Council Inspection of Public Records Members of the Carlsbad City (please see attached document Council; Please consider the which is a compilation of the following matter as worthy of latest amendments, and original your urgent and immediate sections, of said statutes). The attention. This date, at city attorney went on to say that approximately 11 a.m., The the CCC brief was sent to him for Blade-Tribune was denied access his “personal use’’ and was to a legal brief submitted today to therefore not public information. the office of the City of Carlsbad’s (Mrs. Flanders said enough attorney by Carlsbad Community copies will be supplied to make Cause. The subject matter of the the brief also available to the city brief was the legality of the citizen council. She added that the group’s referendum petition on a information was especially San Diego Gas and Electric worded so as to be understandable Company’s proposed 400-foot to council members. ) stack. Carlsbad Community May we now ask you to direct Cause (CCC) spokeswoman your attention to the attached Donna Flanders denied press document. Please note section access to the document today. She 6250 which states, “...access to said the group’s board of directors information concerning the decided Monday to present the conduct of the people’s business is brief only to the city attorney and a fundamental and necessary city council. Mrs. Flanders said right of every person in this this action was based on the state.” We also respectfully direct
subject in only a matter “for the which says that a public record attornies and city council. The “includes any writing containing public is too unknowledgeable information relating to the about the situation to make a conduct of the public’s business decision.” She went on to say that prepared, owned. used or retained CCC directors were concerned by any state or local agency that the uninformed public would regardless of physical form or pressure the council on a issue characteristics.” Please observe that is purely legal. Obviously, that this definition says nothing Carlsbad Community Cause about a document not being public doesn’t wish to be seen as issuing record because it is only for the information which could be used “personal use” of a certain public to pressure the Carlsbad City official. This “personal use” Council about their upcoming contention is also erroneous since decision. the brief will be made available to
against this position, I called the Please also note section 6253 city attorney’s office to arrange which says that public records are for obtaining a copy of the CCC open to inspection during office
that nearly all information which statute, we respectfully, but becomes the property of a public urgently, request that you, the agency becomes public city council, make a copy of the information. The city attorney aforementioned document said “No” at least three times to available (Section 6256) the reporter’s polite request. The immediately or by 9 a.m. reporter went on to make the request official citing Section Also of interest to your 6250, et. seq., of the California determination is section 6254 Government Code entitled which states what records are
concept that the referendum you attention to section 6252-D
After unsuccessfully arguing the city council.
document since it is well known hours. In keeping with this
Monday, July 19,1976.
* e e
exempt from disclosure requirements. Please note that subsection (a) talks about preliminary drafts “..not retained by the public agency in the ordinary course of business.. ” This subsection clearly would not apply because it is highly reasonable to assume that the CCC document will become a part of the city’s permanent records. Subsection (b) refers to records pertaining to “pending litigation.’’ While there may be litigation in this matter, the word “pending” makes this subsection non-applicable because there has been no legal action taken which would place this matter in the courts. I “Pending,” according to Webster’s New Collegiate Dictionary - 1973, means “not yet decided.” Clearly, a decision cannot be pending if it has not yet been placed in the forum, the courts, where that decision could
Should you chose to keep secret the public record we are seeking, we further ask that you observe section 6255 which mandates an agency justify itswithholding of records from inspection. In summary, my editor and I are not asking that you make a determination about the propriety of the city attorney’s action or the decision of Carlsbad Community Cause, with reference to the above mentioned document. All we ask is that you direct that the CCC brief be made available, as soon as possible, to The Blade- Tribune.
be made. 1
Respectfully submitted,
1 ,j<c ,x
Gil Davis
c, ey 47-
J,,L d ’ f ,
7 0 e
MISCELLANEOUS 6 6250
CHAPTER 3.5
IRS~~C~~OII of Public Records
[Added by Stats 1968 ch 1473 $39.1
4 6250. 4 6251. Citation of chapter
$ 6252. Definition of terms
$6253. PubIic records open to inspection during office hours: Right to inspect:
4 6254. Records exempt from disclosure requirements 4 6254.7. Information on sources of poIlution required by air pollution control
Cj 6255. Withholding records from inspection: Justification: Public interest 4 6256. Identifiable public records: Right to copy or information 9 6257. Request for copy: Fee
$6259. Order to show cause: Order to make record public: Order supporting
fj 6260. -Status of existing judicid records unaffected by chapter prcvision
Legislative finding and declaration
Adoption of procedures
district: “Trade secrets”
.
46258. Enforcement of right to inspect or receive copy of records: Proceedings
decision refusing disclosure: Contempt
Collateral References:
Attorney General’s Opinions: 52 Ops Atty Gen 15 (requirement that Department of Education release,.on district by district basis, results of uniform tests given in grades 1, 2 and 3 under Miller-
Unruh Basic Reading Act of 1965).
.- .. -
CHAPTER 3.5
Inspection of Public Records c
Inspection of compaign statements and reports of lobbyists. 0 81008.
Inspection of ceitan vehxular records and accident reports: Veh C 9 1808.
What are inter-agency or intra-agency memorandums or letten exempt from disclosure under the
Scope of judicial remew under Freedom of Information Act (5 USC 3 552(a)(3)), of administrative
Freedom of Information Act (5 USC $552@)95)). 7 ALR Fed 855.
agency’s withholding of records. 7 ALR Fed 876. .- /-
e 0
6 6250. Legislative finding and declaration
In enacting this chapter, the Legislature, mindful of the right of
individuals to privacy, finds and declares that access to information
concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.
Added Stats 1968 ch 1473 Q 39; Amended Stats 1970 ch 575 Q 1.
Amendments:
of.” 1970 Amendment: Substituted “person in” for “citizen of’ after “necessary right
Collateral References:
Law Renew Articles:
Attorney General‘s Opinions:
“Municipal affairs”. 60 CLR 1055.
53 Ops Atty Gen 10 (confidentiality of veneral disease records, compiled and kept by local health departments pursuant to regulation of State Department of Public Health; right of health officer receiving subpoena for such record to assert
privilege pursuant to Ev C 4 1040).
53 Ops Atty Gen 258 (public inspection of violation notices issued by local health
departments pursuant to California Pure Foods Act and Food Crop Growing and
Harvesting Sanitation Act).
Legxkhtive Cbunsei’~ Opinions:
Public records-privilege. 1968 AJ 7151. - --
6 6250. Legislative finding and declaration .
Application to the State Energy Resources Conservation 2nd Dzveloprnent Commission: Pub Res C
57 Ops Atty Gen 252 (propriety of using financial disclosure statements, filed pursuant to Governmental
3 25223
Oniiict of InteresCAct, in me manner as any other piiblic rmrd).
The trial court properly denied a writ of man- sive, such a construction would go far beyond the
date that would have required the Department of act’s intent and pqmse of providing a- to Human Resources Development to Provide the governmental rmids while protecting the individ- director of a county legal aid society with copies ual’s right to privacy. Properly interpreted, the act of a seven volume losse-leaf work containkg Frnits plaint,ff and o:hers simi~arly situatd to
and to secure copies of specific documents subject
to the imposition of reasonable restrictions on
genera! requests for voluminous classes of mate-
riai. Rosenthal v Hzrscn (1973) 34 CA3d 754. 110
Cal Rptr 257.
.
guidelines for use in dekmining a claimant’s tiave reasonable g~CMS tO the d&d documen@ eligibility for unemployment insurance benefits, ammdments thereto, md unemplovment insurance notiws. While it wodd appear from a fited
reading of the public-Rmr& Act (G~~. me,
$$625&62@) that the rjght to inspect Public records and the right to receive copies is cmten-
6 6250 IN GENERAL
NOTES OF DECISIONS
Where there is no contrary statute or countervail-
ing public policy, the right 40 inspect puhlic rec-
ords must be freely allowed. In this regard the
term “public policy” means anything which tends
to undermine that sense of security for individual
rights, whether of personal liberty or private prop
erty. which any citizen ought to feel has a tend-
ency to be injurious to the public or the public
good. Craemer v Superior Court (1968) 265 CA2d
216, 71 Cal Rptr 193.
0 m
6 6251. Citation of chapter
This chapter shall be known and may be cited as the California
Public Records Act.
Added Stats 1968 ch 1473 9 39. -
Collateral References:
4 Cal Practice, Discovery Proceedings 3 20:3.
6 6252. Definition of terms
As used in this chapter:
(a) “State agency” means every state office, officer, department, division, bureau, board, and commission or other state agency, except those agencies provided for in Article IV (except Section 20 thereof)
or Article- VI of the California Constitution.
(b) “Local agency” includes a county; city, whether general law or
chartered; city and county; school district; municipal corporation; district; political subdivision; or any board, commission or agency
thereof; or other local public agency.
(c) “Person” includes any natural person, corporation, partnership, firm, or association.
(d) “Public records” includes any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.
(e) “Writing” means handwriting, typewriting, printing, photostating, photographing, and every other means of recording upon any form of communication or representation, including letters, words, pictures. sounds, or symbols, or combination thereof, and a11 papers, maps, magnetic or paper tapes, photographic films and prints, magnetic or
punched cards, discs, drums, and other documents.
..
Added Stab 1968 ch 1473 0 39; Amended Stats 1970 ch 575 0 2.
Amendments:
I970 Amentnenf: (1) Substituted “any writing” for “all papers, maps, magnetic or paper tapes, photographic films 2nd prints, magnetic or punched cards, discs,
drums, and other documents” before “containing” in subd ((d); and (2) added SUM (e).
4 6252. Definition of terms
WFting received, owned, used, or retained by the state department of halih in connection with the
Quality of Long-Term Health Facilities as public record within the rnaning of Subd (d) of this
Section: H 8z S C 5 1439.
0 e
MISCELLANEOUS 5 6253
Cross References: Use by “local agency”, as defined by this section, of confidential information on form filed by applicant for appointment and commission as a notary public: 6 8201.5. Public writing defined: CCP § 1888.
Collateral References: Cal Jur 2d Diswvery and Depositions §§2, 3, Evidence 4208, Records and Recording Laws 0 2. 4 Cal Practice, Discovery Proceedings 4 20:3. McKinney’s Cal Dig Records $ 29.
Am Jur 2d Evidence $3 962 et seq., Records and Recording Laws $9 12 et seq.
Secrecy and access to administrative records. 44 CLR 314.
Confidentiality of Juvenile court proceedings. 10 Stan LR 508.
53 Ops Atty Gen 258 (public inspection of violation notices issued by local health departments pursuant to California Pure Foods Act and Food Crop Growing and Harvesting Sanitation Act).
Law Renew AnYcls:
Attorney General‘s Opinions:
NOTES OF DECISIONS
In this state the terms “public records” and “pub-
lic writings” are used synonymously. Craemer v
Superior.Court (1968) 265 CA2d 216, 71 Cal Rptr
193.
6 6253. Public records open to inspection during office hours: Right to
Public records are open to inspection at all times during the office hours of the state or local agency and every citizen has a ~ght to inspect any public record, except as hereafter provided. Every agency may adopt regulations stating the procedures to be followed when
making its records available in accordance with this section.
Added Stats 1968 ch 1473 $39.
Prior Law: Based on:
(a) Former $ 1227, as added by Stats 1951 ch 655 Q 23.
(b) Former Pol C Q 1032, as amended by Code Amdts 1873-74 ch 610 0 27 p 14, Stab 1921
ch 355 0 1 p 535.
inspect: Adoption of procedures
i
Cross References:
Inspection of public records: 6 1227.
Fact of filing of complaint in issuance of attachment not to le made public until
Annual report to State Mineralogist as to character of mine, etc., as confidential:
filing of return of writ: CCP 3 537.5.
Pub Res C 0 2207.
Collateral References:
Cal Jur 2d Discovery and Depositions $9 2, 85, Executions 9 86, Public Officers
4 CaI Practice, Discovery Proceedings 0 20:3.
McKinney’s Cal Dig Inspection and Physical Examination 0 1, Records $3 29-33.
66 Am Jur 2d Records and Recordings Laws $0 12 et seq.
0 143, Wills 0 547.
Law Revkw Articles:
Inspection. 10 CLR 348. - - ~__ ___
0 0
0 6253 IN GENERAL
Secrecy and access to administrative records. 44 CLR 305.
1 Ops Atty Gen 144 (a trial judge’s letter to the advisory pardon board regarding
5 Ops Atty Gen 145 (disclosure by Labor Commissioner of information obtained
12 Ops Atty Gen 147 (original copy of State Constitution and original laws not to
13 Ops Atty Gen 180 (inspection of files of Adult Authority relating to individual
15 Ops Atty Gen 164. (access to vital statistics records). 15 Ops Atty Gen 242 (inspection of records in central record depositary4ect of passage of time upon confidential or restricted character of records).
15 Ops Atty Gen 304 (authority of district or depury to administer and certify bath of complaining witness to criminal complaint). 16 Ops Atty Gen 163 (names and addresses of public high school students as not public writings within meaning of section).
18 Ops Atty Gen 231 (confidential nature of report of State Department of Public Health on county hospital, and data and information obtained during investiga- tion).
Attorney General’s Opinions:
an application for executive clemency as confidential).
from applicant for employment agency license).
be removed from the office of the Secretary of State for exhibition elsewhere).
inmates and parolees).
24 Ops Atty Gen 219 (aduIt probation oficer’s report as public record when).
25 Ops Atty Gen 90 (controller’s records indicating amounts of individual payments to person retired under State Employee’s Retirement Act and names of individual
payees as public records apen to inspection by any State citizen). 26 Ops Atty Gen 136 (records maintained by Department of Motor Vehicles pertaining to physical or mental condition of person as confidential records and not open to public inspection; right of department to estatjlish regulations making records, other than those whjch are confidential, available for reasonable insp tion). .
27 Ops Atty- Gen 30 (right of registrar of voters to make available to private citizens duplicate of set of punch cards prepared by him, showing information contained on affidavits of registraticn of voters). 27 Ops Atty Gen 194 (notice of intention to sell subdivided land as public record which any citizen has right to izspect; preliminary title report, furnished as part of subdivision filings, as private writing and not public record subject to pukk inspection).
27 Ops Atty Gen 267 (general financial records of State Employees’ Retirement System, records of investments, repa of actuaries and public agency contracts and related correspondence as su3ject to public inspection; information filed by members of system and pertaining to individual members thereof a~ confidential and not to 15e divulged). 51 ops Atty Gen 62 (availability for public inspection of separate tax statement required to be filed where party requests that county recorder make permanent record of realty trader document before affixing tax stamps).
53 Ops Atty Gen 136 (avaaabilky for public inspection of files of Board Of Pilot Commissioners; authority of board to impose requirement that persons wishing to
inspect material on file do so only iil presence of conmissioner or employe of Pilot Commission and only at reasonable hours).
53 Ops Atty Gen 258 (pubIic inspection of violation notices issued by local health departments pursuant to Califcmia Pure Foods Act and Food Crop Growing and
Harvesting Sanitation Act).
55 Ops Atty Gen 67 (necessity that standards promulgated by county pursuant to W & I C 5 17001 concerning aid and care for indigent and dependent poor of county be opened to public inspection).
Public records-privilege. 1968 AJ 7151.
Student organization registration statement, filed with public school or state ~nivm-
kgikIdVe CbURdk OpiiIiORS:
Annotations:
sity or college, as open to inspection by public 37 ALR3d 1311-
- ...
/ . -~ .- __.
0 6
MISCELLANEOUS 3 6253
NOTES OF DECISIONS
1. In General
2 Idcntification Requirement and Disclosure: Suf-
3. Inspection Right
4. Reports or Documents Subject to Inspection
1. IJJ General
In order that entry or record of offid acts of
pbfic officer shall be public rard, it & not
nacessary that such record be expressly required
by law to & kept, but it is sufficient .if it is
necg~ary or convenient to discharge of official duty. Jmup v Supior court (1957) 151 CAZ~
102.311 P2d 177.
Z Identification Requirement and Discicsure; Suf-
and responsible officers of organizations that air
granted the privilege of becoming campus orga-
nizations using the public property and facilities of
the University. Eism v University of Cal. (1959j ficient State Interest
, 269 CA2d 696, 75 Cal Rptr 45, 37 ALRM 1303.
3. Inspection Right
A citizen’s inspection right as to preliminary sti-
mates and details in connection with the Hetch
Hetchy project of the city and county of Sari FranCi~co is not affccted by the fact that the plans
in question are tentative and liable to error or
alteration since, while they may not represent the
final result of the work of the city engner’s oKce.
they are important details of that work, even if rhe
public’s interest is only to se that the city engi-
neer b taking steps toward the completion of the
project Coldwell v Board of Public Works (1521)
187 c 510, 202 p 879.
A citizen’s right to inspect preliminary sth-,a:s
and details in connection with the acquisition and
construction of a municipal water supply system
as “other matters” within the meaning of this
engineer had communicatql them to the city aitor-
ficient State Interest
A University of California policy of annexing
limikd disclosure conditions (purpose and officers’
names) to the privilege of becoming a registered
campus organization entitled tO use campus facili-
tics, ad of opening such statements to inspection
by the public, was justified where there was a
merit of Fit Amendment rights Of an officer Of
.
SdCient State interest to outweigh alleged impair-
such a registered organization, panicuiady where
it could not be said tha? the iden:ification require-
ment and disclosure of the limited information to
a member of the public would unduly deter the freedom of expression of dissident organizations and their officers, but rather that the replation
sity’s interat in insuring the orderly enjoyment of
ascertain the identity of organizations and the
responsible officers using public property. Eisen v
University of Cal. (!969) 269 CA2d 696, 75 Cal
Rptr 45, 31 ALR3d 1300.
The right of the People of California to know the
ti0ns that might be using public finand and owned campus facilities of the University was a
snfficient compelling public interest to warrant
minimal indirect infringemenr of such an officer’s w mendmmt rights by a poky of annexing
bit& disclosure conhtjons (purpose and ofiicers*
name) to the pfiv~ege of -ming a regsterd campus organization entitied to UM campu facili- tia, and of opening such statmenu to inspection by fie pubLC, where the only infomation made
available was the purne of the orgulizatjon and
the nams of its officers, a modicum of infoma-
tion far from overly broad to accomplish the
legitimate and substantial purpose of the policy.
Eisen v University of Cal. (1969) 269 CA2d 696,
75 Cal Rptr 45, 31 ALR3d 1300.
Jut 8s fie people of the state have a fight to how how their elected officials conduct the public
business, they are emtitled to know :he identity
section & not affect& by the facI that the city
ney as confidential matter in priding and anlici-
.pated litigation agecling the project. aldwei] v
Board of Public Works (1921) 187 C 510, 232 p
879.
Where preliminary estimates and details ’:in con-
nection with rhe acquisition and const,,,cij.on of a
other citizens* insFtion right caIlnOt be ref..sed
tial character. Coldwell v Board of Public Works
appeared we1i desi@cd lo promote thar freedom Of
expression in a manner consistent with the Univer- municipa] water supply projst were pennitred by
the cit!, engineer to be inspecred by SOme citi:ens.
ib faci1ities, together With the Public rights to on ‘h: ground that the matter was of a confi;e,l-
(1921) ,87 c 5,0, 202 p 879.
Public policy demands that certain communica- tions and documents shaIl be treated as confiscn-
tial and not open to indiscri;ninate inspection,
public officer 0: board and are of a public nsiure.
Runyon v Board of Prison Tems 8r Paroles (1938) 26 cA2d 183, 79 P2d ,o,,
Public poiicy prohibits indiscriminate inspction of
documents and records kept on file in piiSIic
institutions, concerning the condition, care, an3
tratment of the inmates thereof, and the files in
the offices of those charged with the execulion of
the laws relating to the apprehension, prosecution
and punishment of criminals. Runyon v Board of
Prison Terms &i Paroles (1938) 26 CA2d 153, 79 P2d lol.
Right of inspection may be curtailed in relatioii to
communications or portions thereof where public
policy, enacted into statutory law, demands that
disclosure be prohibited. San Francisco v Superior
Court t1g51) 38 C2d 156y 238 P2d 581.
identity and res&ve O&Xrs Of student organin- notajthstanding that they are in thC custody of a
Wricten statements made by ofiicers or en~p!oyees
.. .
0 0
$6253 IN GENERAL
within prison concerning killing'happening therein, Autopsy report is public record which citizen may
and copies of stkrcments taken from prisoners, in inspect. Walker v Superior Court (1957) 155
hands of coroner. are not public records such as to CA2d 134, 317 P2d 130. be subject to insption by defendants Burwell v Monthly pesticide spray reports submitted in ao
cordance with Agr Code, 8 11733, to a county Teets (1957) 245 F2d 154.
agricultural commissioner, each containing the 4. Reports or Documents Subject to Inspection name of the operator, the location and ownm of
Written charge made to board of SUPe*On, the lands to which pesticides were applied, the
board of directors or tWW Of college 01 Other chemical mmbinatjons, quantities, concentrations,
State institution, Upon being filed in Office Of CUSto- and dates of such applications, and the crops ad
dian of their records, does not necessarily become pests involved, were "public rar&" with the
public record to which any citizen may have meanbg of &,e California Public Rmr& A&
acCeSS at pleasure. Colnon v Ox (1886) 71 c 43, {Gov Code, $9 6250 et q.) Uribc v Howie (1971)
11 P 814. 19 CA3d 194, 96 Cal Rptr 493.
Public has right to know and discuss dl judicial Under pen code, 52081.5, limiting Bccess to B
proceedings, unless such right is expressly inter- prisoner's recor& to the auLhorities listed thaein,
dicted by coristitutional or statutory provisions, or G~~ we, g 6253, sum (0, exempting ced
unless pu'ch,carion prohibited by court order is of pfison records from the generd disc]osure'pro,+
such a natGre as lo obstruct Or ernbarrass court in sions of the statute, and Gov Code, 8 6255, autho-
its administrarion of law and execution of powers rizing the withholding of rmrk for reasons of
eXPre5..b cortferrd upn it. Shortridge, In re public policy, the news media was properly denid
aks to the prison files of an inmate facing (1893) 99 C 526, 34 P 227.
Judgment of conviction delivered with convict and serious criminal charges in which criminal pro-
filed by wzrclen of State prison as commitment is ceedings the court had entered a publicity order in
public dxumei;t, which citizen has right to in- protection of the hate's right to a fair trid
spect. People v fioward (1925) 72 CA 561, 237 P Yarish v Nelson (1972) 27 CA3d 893, 104 Cal
780. Rptr 205.
8 6253. Public records opn to inspection during oEce hours: Ri&t to
inspect: Adoption of procedures
(a) Public records are open to inspectioil at all times during the ofilce hours
of the state or local agency and every citizen hs a right to inspect any
public record, except as hereafter provided. Every agency may adopt
regulations stating the procedures to be followed when making its records
available in accordance with this section.
The following state and local bodies shall establish written guidelines for
accessibility of records by July 1, 1974. A copy of these guidelines shall be posted in a conspicuous public place at the offices of such bodies. by July I,
1974, and a copy of such guidelines shall thereafter be available upon
request free of charge to any person requesting that body's records:
Department of Motor Vehicles
Department of Consumer Affairs
Department of Transportation
Department of Real Estate I
California Youth Authority
Department of Justice
Department of Insurance
Secretary of State
Air Resource Board
,
/ .. Department of Corrections
Department of Corporations .f
. __ .- . __-. -- . -. ~. - *--.-. ..
6 e
Department of Water Resources
Bay Conservation and Development Commission
Department of Employment Development
Department of Benefit Payments
Public Employees’ Retirement System
Teachers’ Retirement System
Department of Industrial Relations
Department of General Services
Department of Veterans Affairs
Public Utilities Commission
Caiifornia Coastline Commission
All regional coastline commissions
State Water Quality Control Board
Bay Area Rapid Transit District
All regional water quality control boards
LQS Angeles Air Pollution Control District
Bay Area Air Pollution Control District
Golden Gate Bridge, Highway, and Transportation District.
(b) GuideIines and regulations adopted pursuant to this section shall be
consistent with all other sections of this chapter and shall reflect the
intention of the Legislature to make such records accessible to the public.
Amended Stats 1973 ch 664 5 1; Stat 1974 ch 544 9 7.
. Departmint of Parks and Recreation
. Department of Health
, . !.
Amendments:
1973 Amendment (1) Amended SUM (a) by (a) adding “(a)” before “Public”; (b) adding the saond
paragraph; and (2) added subd (b).
1974 Amendments: Substituted “Department of Employment Development” for “Department of Human
Resources Development” and “Dcpai-tment of Benefit Payments” for “Department of Social Welfare”
in the table of SUM (a).
Writing received, owned, used, or retained by the state department of health in connection with the
Quality of Long-Term Health Facilities open to public inspection pursuant to the provisions of this
Section: H & S C 4 1439.
.
1 Cal Jur 3d Abstracters and Title Insurers 8 3.
Organizations and administrative practice. (1974) 26 Hastings U 89.
55 Ops Atty Gen 369 (availability for public inspection of records concerning therapeutic abortion
information on individual hospitals, but not concerning individual pemns).
57 Ops Atty Gen 307 (requirement that mechanical “reader” be available to public for microfilm and
microfiche items, after copying and destroying city records; furnishing copies of requested records;
propriety of making additional microphotographs or microfilm copy, required by Government Code 5 34090.5, from the original document or from microphotograph thereof). ..
1. In General
An agreement entered into between a school reasonable and proper need, on the condition that
district and a private corporation, providing for rhe person receiving thc material agree not to
performance by the corporation of research and publish or x11 it. Moreover, Gov. Code, 8 6254,
development work and services for a fee, could not provides that nothing in the Public Records Act
be said to require the district to violate Gov. shall be construed to require disclosure of records code, $6253, requiring generally that public reo exempted by provisions of the Evidence me
ords be open to inspection during an agency’s relating to Privikge, and, under Evid we,
office houn, but giving the agency the right to § 1060, the Owner of a trade secret is pAvilegd to .
adopt regulations stating the prdures to be refuse to disclose, and to prevent another from
followed when making records available, where the dix]aing the secret. California s&x~l Employ-
agreement specifically permitted the disciosure of Am. v Sunnyvale Elementary School Dkt (1973)
any confidential material for which there w2s a 36 CA3d 46, 111 Cal Rptr 433.
,
..
0
Lions 9 6253.5. Inspection of election peti"
Notwithstanding the provisions of Sections 6252 and 6253, statewide,
county, city, and district initiative referendum, and recall petitions and all
memoranda prepared by the county clerks in the examination of such
petitions indicating which registered voters have signed particular petitions
shall not be deemed to be public records and shall not be open to inspection
except by the public officer or public employees who have the duty of
receiving, examining or preserving such petitions or who are responsible for the preparation of such memoranda.
Added Stats 1974 ch 1410 5 10, ch 1445 3 10.
Illicit use of election petitions: Elec C $29256.
*
1
6 6254. Records exempt from disclosure requirements
Except as provided in Section 6254.7, nothing in this chapter shall be
construed LO require disclosure of records that are:
(a) Preh inary drafts, notes, or interagency or intra-agency memo-
randa whicl are not retained by the public agency in the ordinary course of business, provided that the public interest in withholding such records clearly outweighs the public public interest in disclosure;
' (b) Recoids pertaining to pending litigation to which the public agency is a party, or to claims made pursuant to Division 3.6 (conmcneing with Section 810) of Title 1 of the Government Code,
uctii such litigation or claim has been finally adjudicated or otherwise
settled;
(c) Perso:ineI, medical, or similar fiIes, the disclosure of which would
constitute an unwarranted invasion of personal privacy;
(d) Conkined in or related to:
(I) Ap2lications filed with any state agency responsible for the
regdatior, or supervision of the issuance of securities or of financial
institutions, including, but not limited to, banks, savings 2nd loan
associstiom, industrial Joan companies, credit unions, and insurance companies;
(2) Examination, operating, or condition reports prepared by, on - ..-
a 0
behalf of, or foe the use of any state agency referred to in subdivision
(1);
(3) Preliminary drafts, notes, or interagency or intraagency communi-
cations prepared by, on behalf of, or for the use of any state agency
referred to in subdivision (1); or
(4) Information received in confidence by any state agency referred to
(e) Geological and geophysical data, plant production data and I similar information relating to utility systems development, or market
or crop reports, which are obtained in confidence from any person;
(f) Records of complaints to or investigations conducted by, or
records of intelligence information or security procedures of, the office
of the Attorney General and the Department of Justice, and any state
or local police agency, or any such investigatory or security files
compiled by any other state or local agency for correctional, law
(g) Test questions, scoring keys, and other examination data used to administer a licensing examination, examination for employment, or
academic examination;
(h) The contents of real estate appraisals, engineering or feasibility estimates and evaluations made for or by the state or local agency relative to the acquisition of property, or to prospective. public supply
and construction contracts, until such time as all of the i~operty has been acquired or all of the contract agreement obtained, provided,
however, the law of eminent domain shall not be affected by this
provision;
(i) Information required from any taxpayer in connection with the
collection of local taxes which is received in confidence 2nd the
disclosure of the information to other persons would result in unfair competitive disadvantage to the person supplying such information;
(j) Library and museum materials made or acquired and presented
solely for reference or exhibition purposes; and
(k) Records the disclosure of which is exempted or prohibited
pursuant to provisions of federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege.
(!'In the custody of or maintained by the Governor or employees of the Governor's office employed directly in his offce, provided that
public records shall not be transferred to the custody of the Gover- nor's office to evade the disclosure provisions of this chapter.
(m) In the custody of or maintained by the LegisIative Counsel.
(n) Statements of persona1 worth or personal financial data required
by a licensing agency and filed by an applicant with slrch licensing
in subdivision (1).
'
enforcement or licensing purposes;
0 0
agency to establish his personal qualification for the license, certifi- cate, or permit applied for.
Nothing in this section is to be construed as preventing any agency
from opening its records concerning the administration of the agency to public inspection, unless disclosure is otherwise prohibited by law.
Added Stab 1968 ch 1473 Q 39; Amended Stab 1970 ch 1231 5 11.5, ch 1295 5 1.5.
Amendments:
1970 Amendment: (1) Added “Except a~ provided in Section 6254.7,” at- the beginning of the section; (2) substituted subds (d) for former SUM (d) which read:
“Trade secrets;”; and (3) added subd (n).
_d Cross References:
Exclusion from inspcction of papers in adoption proceedings: CC 0 227.
Privilege for official information: EV C Q 1040
Information and records in assessor’s office not required by law to be kept or
Property statement submitted to assessor by property owner not subject to insp
Confidentiality of state income reprts and returns: Rev & Tax C $5 19282-19287
Limitation on right to inspect petition and reports of probation officer in juvenile
prepared not open to public inspection: Rev & Tax C fj 408.
tion: Rev & Tax C 0 451.
court proceedings: W & I C 8 627.
Collateral References:
Cal Jur 2d Qiscovery and Depositions 9 85, Wills 5 547.
4 Cal Practi?, Discoxry Proceedings fj 20:3.
Inspection of public records under California law. 50 CLR 79.
%- Law Renew Articles:
Attorney Generd’s Opinions:
53 Ops Atty Gen 136 (availability for public inspection of files of Board of Pilot
Commissioners; authority of board to impose requirement that persons wishing to
inspect material on file do so only if, presence of commissioner or employee of Pilot Commission and only at reasonable hours).
LtgSative COunseYs O~J~~ORS:
Public records-privilege 1968 AJ 7151.
AnnotatioA:
Enforceability by mandamus of r;ght to inspect public records. 60 ALR 1356; 169
Compelling production or autheniication for use as evidence of court records or
Restricting am tu judicial records. 175 ALR 334. Right to inspect motor vehicle recurds. 64 ALR2d 1261. What preliminary data gaibered by public departments or officials constitute “public records” within the nght of accss, inspection, and copying by private persons. 85 ALR2d 1105.
Student organizztion registration statement, filed with public school or state Univer-
sity or college, as open to inspection by public. 37 ALWd 1311.
ALR 653.
writings or objects In custody of court or officer. 170 ALR 334.
XOTES OF DECISIONS
In seeking to avoid excessive and therefore preju-
&’s order &at copis cf the transcript or the
grand jury proceedings in possession of the clerk
disclosure of the t-pt cantcuts by the dcrk
&cid publicity in a pending prosecution, the tnal remain scaled and which restricted and tirnitcd tbC
._
a 0
and district attorney to unauthorhd personnel, cordance with Agr Code, fj 11733, to a county
specifically newspapers, was unrmnable, where agrjculhira1 commissioner, each containing the
the effect of the order was to permanently deny name of.the operator, the lccation and owners of
the right of pubtic inspection of the grand jury the lands to which pesticides were applicd, the
records in question. Ciaemcr v Superior Court chemical combinations, quantities, concentrations,
(1968) 265 CA2d 216, 71 CaI Rptr 193. and dates of such applications, 2nd the crops and
~n keeping i& a trial judge's duty to insure that pes& involved, were not records contai~ng “trade
a defendant wdl r-ve a fair trid the judge may, secrets” within the disclosure exemption provisions
in order to prevmt even the probability of unfair- Of Gov mc 8 6254* subd (d), as it read prior to
ness, make such orden as arc reason&1y design& the 1970 amendment to that statute, or of GOY
to avert improper prejudice to indict4 d&ndank, me, 4 6254, subd (k), incorPrafh bid mc
grand jury tmsfip% not be discl- to any secrets), where among the factors distinguishing
person tother thm tho= specifically mentiond in them therefrom were, first, the fact that although
pen me, g 938.1) until a Specified reasonable the information contained in the reports was not
pefiod of time after a copy thereof has been readily accessible to the general public, it was
delivered to he defenbnf pro~d that if the available to some individuals outside the pesticide
that such transcripf or any porrion rbaf, not be adjusters, and the landowners themselves, and. : av~ble for pub~c kpecticn pding trial, such second, the fact that the mixture and dosage
time shaIl be exmded subjert to the court,s Nling elements of the pesticides were fixed not for con-
on such motion. craemer y superior court (1968) tinuous use but on an ad hoc basis depeading on variable conditions. Uribe. v Howie (1971) 19 265 CA2d 216, 71 Cal Rptr 193. CA3d 194,¶6 Cal Rptr 493. In a proceeding for appointment of a guardian of
tion, fie trid court abused its discretion in order-
ing the weuare department tO answer internogat@ fie as to the identity of penons having custody of
b mncehng fie activities of the department in connection with atr.mpts to -ge adoptive
coming the placement and adoption of the mrdance with Agr Code, 9 11733, to a county
child was acquired in confidence by the depart- agricultural commissioncr. each containing the
mcnt and its employee in the course of their name of the operator, the location and owners of
duties, and was not open or officially disclosed to the Iands to which psticids were applied, the
the public prior to the time a claim of privilege chemical combinations, quantities, concentrations,
was made, and where no preliminary basis had and dates of such applications, and the crops and
been estabIisbed for finding thaf the adoption pests invclvrd, were not “crop reports” within the
procedure was not running its proper course, and meaning of the disclosure exeniption provisions of
that the agency was unfit to have temporq Gov Code, 5 6254, SUM (e), where the reports did
custody of the child, or that it was improbable not yield information concerning the magnitude of
,that the child would tx adopted; while there is no the crops spiayed, their state of preparation, or
absolute statutory ban on disclosure of such infor- their likely marketing dates, and could not affect
mafion, nor any absolute privilege with respect the privacy of either the growers’ or applicstors’
thereto, Evid Code, 8 leu), requirs a weighing of financial dealings, nor affect prices in commodity
necessity for preserving confidentiality with the markets. Uribe v Howie (1971) 19 CA3d 194, 96
necessity for disclosure in the interest of justice. Cal Rptr 493.
CaI Rptr 806. closure records used for correctional, law enforce
Under Gov Code, 9 6254, relating to records ex- mat, or licensing purpases, applies only when the
apt from public disclosure, SUM (dl, which prior prospect of enforcement proceedings is concrete
to its amendment in 1970 spaifid Trade secrets” and definiie; the exemption does not apply when
among such exemptions, operated, like Evid Code, an agency merely labels its fife “investigatory” and
§ 106% inwrporatd by Goy code, B 6254, SUM suggests that enforcement proceedings may be
Only when to do X) would not tend to conceal previously considered. Uribe v Howie (1971) 19
bud or otherwise work injustice. Uribe v Howie CA3d 194, 96 Cal Rptr 493.
Monthly pesticide spray reports submitted in ac- (1971) 19 CA3d 194, 96 Cal Rptr 493.
Monthly pesticide spray reports submitted in ac- cordancc with Agr Code, 0 11733, to a county
ad, a-rdingly, a proper ordm can quire that 5 1o6o, (governing the privilege to prowt trade
defendant, d-g such time, sha move the court application indmm, such as docm% insurance i:
a minor child com&tM to the care of the welfare
department and placed in a foster home for adop
Gov me, $ 6254* subd (e)* exempting croP re-
ports from Public &losure, applies Only t’ ‘e-
ports specifying the nature, extent, tm or mad-
tude of crops being grown, disclosure of which
might adversely affkct the arifidentiaIity of grow-
tures on commodity markets. Uribe v Howie
(1971) 19 CA3d 19496 cal Rptr 493.
the child fon0hg commitmmt md otha particu- ers’ enlerpriSeS and inthfcri;wi:h trading h fU-
placement for the child, where the information Monthly pesticide spray reports submitted k io
Terrian v su*or court (19’0) Io cA3d 286, 88 Gov Cde, 0 6254, subd (0, exempting from d&,-
(k). to exempt records containing trade secrets initiared at some anspecified futurc datc or wert
a e
agricultural commissioner, , each containing the The trial court properly denied issuancc of a writ
name of the operator, the location and owners of of mandate to compel a county assessor to ped
the lands to which pesticids were applied, the a corporation to inspect documents and records
chemical combinations, quantitk concentrations, enabling it to more casily colnparc markd vdus
and dates of such applications, and the crops and of real property with assessed values. Though the
PgtS involved, could not, in an action seeking documents are the working papn ~~ed by the public disclosure of such reports, be validly , assessor in the performance of his dutim there is
deemed to be records used for "correctional, law no provision requifing him to prepare md keep
enforcement or licensing purposes" within the them and thy therefore fd withi,., the p-ew ~f meaning of tht disclosure exemption provisions of pev & Tax we, 4 408, subd (a), prov;d;ng ... . .
cide spray reports had been used to review appli- which arc not requird by law to be kept and
Gov codG 9 62549 subd (0- where, a1though pti- any infomation and records in thc ~s~sofs 05~
crctors' lima On various ~jo'9 tfiis was not
the primary Pu'pose for which they were com- prepared by the assessor are not public documents
and shall not & open 10 pub]jc inspcctioL** Stab piled, and where there was no evidence that any of
the reports were being put to such purpose a: the
time of trial. Unbe v Howie (1971) 19 CA3d 194,
96 Cal Rptr 493.
wide Homeownerr Inc. v williams (1973) u)
CA3d 567, 106 Cal Rptr 479.
_. .- 0 6254. Records exempt from disclosure requirements
1 Cal Jur 3d Abstracters and Title Insurers 3 3-
Organizations and administrative practice. (1974) 26 Hastings U 89.
Prisoners' rightsdiscovery of inmate petitioner's central file. 25 Stan LR 27.
Governmental privileges as roadblock to effective discovery; application and effect of this section. 7 USF
LR 291.
In a personal injury action against a city for
\
of the rule prohibifing the use of remedial mea-
battery by a policeman, infornation relating to sures undertaken after an event to prove ne&-
gtnce or culpability in conncction with the event
alleged battery would not be discoverable, in view itse!f. Los Angels v Superior Court (1973) 33
CAM 778, 109 Cal Rptr 365. An agreement entered into between a' school
A trial coufl-s discovery order violated peson district and a private corporation, providing for
officials' privilege to refuse to disclose official performance by the. co'PJration Of rgearch and
information under G~~, we, Q 6254, subd. (0 development work and services for a fee, could not
where it req~rd disclosure of lists of inmates of a bc said to require the district to violate Gov.
correctional facility known to be members of rival we7 8 6253. requiring generally that Public re- gangs. information tending to connect defendants ords 'be open to inspection during an agency's in a crimiiial trial with one of the gangs, and Office hours, 'but giving the agency the right to
infmatim tcnding to connect two named wit- adopt regulations stating the procedures to be
n- with another of the gangs, and violated pa. followed when making records available, where the
Code. 9 2081.5, rendering certain information agreement specifidly permitted the ~~~~ure of available only to specifically enumerated authori. any confidential material for which there was a
ties, where it required disclosure of defendants' reasonable and P'oPer need, on the condition that
prison records, including cumulative summaries, the person receiving the material agree not to
psychological evaluations, incident or disciplinary publish or sell it. Moreover, Gov. Code, 8 6254,
reports, social studies, and medical records. Procu- provides that nothing in the Pubfic Records Act
nier v Superior Court (1973) 35 CA3d 207, 110 shall be construed to require disclosure of records
Cal Rptr 529. exempted by provisions of the Evidence Code
any suspension of the officer resulting from the
It is the duty of the Anomey General, a.c, the
authorized representative of petitioning prison au-
re1ating to privilege, andt under Evid. codq . 8 '060* thc Owner Of a mde secret is Privi'%ed to
thofities, tO assea in (he tfial court their pdilege refuse to disclose,- and to prevent another from
unb Evid. Code, 8 1040 to refuse tO disclose
offiCjd infomation and to &vise the trial com that disclosure was expressly forbidden by Gov.
disclosing the =ret California School Employees
ASSO- v Sunny/de Elemen* School mst. (1973)
36 CA3d 463 1 1 1 cal Rptr 433-
Code, 8 6254, subd. (0. However, on failure. of the In a prosecution of a state prison inmate for the - Attorney General to assert the privilege, the over- murder of a prison employee, the trial court did whelming public and governmental interest in the not abuse its discretion in denying dcfendant's ,
security of the prison system and the safety of pretrial discovery motion for production, for im-
citizens requires recognition of the privilege by the pchmmt purposes, of the complete personnel
coufi. Procunier v Superior Court (1973) 35 CA3d files of all prison st& members and the inmate 211. 110 Cal Rptr 531. fila of all prisoncrs.'that each side was considering
A discovery order was in violation of peson cahg to testify at tbd, where the prosecutor had
oficials' privilege to refuse to disclose official ofkred to go through the file and disclose any infomation ragnized by Evid. Me, 8 1040 and material which might be relevant to impeachment,
Gw. code. $6254, SUM. (0 where the order but defense counsel apparently rejected that offer. required disclosure of plans plats, maps and dia- The blanket request failed to describe the re-
grams depicting a correctional facility and Iists quested information with sufficient spe.dicity and
compiled by prison authorities for security pur- there is a legitimate public interest in protecting
poses indicating inmate membership in rival gang. against wholesale disclosure of the matter re- Procunier v Superior Court (1973) 35 CA3d 211, quested People v Gaulden (1974) 36 CA3d 942,
110 Cai Rptr 531. 11 1 Cd Rptr 803.
>
.--- -. - . . .-. - - ~.
0 0
5 6254.7. Information on sources of pollution required by air pollution
control district: “Tirade secrets”
(a) All information, analyses, plans, or specifications that disclose the
nature, extent, quantity, or deFree of air contaminants or other
pollutioh which any article, machine, equipment, or other contrivance will prjduce, which any air pollution control district or any other
state or local agency or district requires any applicant to provide before such applicant builds, erects, alters, replaces, operates, sells, rents, or uses such article, machine, equipment, or other contrivance,
are public records.
(b) All air or other pollution monitoring data, including data com- piled from stationary sources, are public records.
(c) All records of notices and orders directed to the owner of any building of violations of housing or building codes, ordinances,
statutes, or regulations which constitute violations of standards pro-
vided in Section 1941.1 of the Civil Code, and records of subsequent action with respect to such notices and orders, are public records.
(d) Except as otherwise provided in subdivision (e), trade secrets are nct public records under this section. “Trade secrets,” as used in this section, may include, but are not limited to, any fornula, plan, pattern, process, tool, mechznism, compound, procedure, production
data, or compilation of information which is not patented, which is known only to certain individuals within a commercial concern who
are using it to fabricate, produce, or compound an article of trade or
a service having commercial value and which gives its user an opportunity to obtain a business advantage over competitors who do not know or use it.
(e) Notwithstanding any other provision of law, all air pollution
emission data, including those emission data which constitute trade secrets as defined in subdivision (d), are public records. Data used to
&lculate emission data are not emission data for the purposes of this subdivision and data which constitute trade secrets and which are
used to calculate emission data are not public records.
Added Stah 1970 ch 1295 5 2; Amended Sta?s 1971 ch 1601 8 1; Stats 1972 ch 400 0 1; Stats 1973-74 ch 186 5 1, effective July 9, 1973.
Amendments;
W1 Amendment: Added (I) “or any other state or local agency or district” after “air pollution control district” in SUM (a); arid (2) “or other polIution” after “All air” in subd (b). 1972 Amendmenk (1) Added SUM (c); and (2) relettered former subd (c) to be subd
(4- 1973 Amendment: Added (1) “Except as otfiemke provided in subdivision (e),” at
the beginning of subd (d); and (2) subd (e). Nute--Stats 1973-74 ch 186 effective July 9, 1973, also provides: 5 2. In enacting this act, the Legislature hereby determines and finds that any duties, obligations, or responsibilities imposed on local governrncnt are minor in nature and do not result in a significant new program for lscd government or a significant increase
in level of service of an exisring mandaled program, and no additional economic burden or cost is intended to be imposed hereby. Therefore, and solely as a result of this finding and determination, no appropriation is made by this act, nor is any obligation created thereby under Section 2164.3 of the Revenue and Taxation Code, for the reimbursement of any lucal agency for any costs that may be incurred by it in carrying on aEy program or performing any service required to
be carried on or performed by it by this act 0 3. In order to have the state Iaw conform nith the federal law which makes aI1 air pollution emission data p~3iic records, even though such data may constitute trade secrets, so that the federal government will leave the collectih of such data
in the State to the State Air Resources Board and the air pollution control
districts, it is necessary that this act hke efkt immediately.
,
0 Cross Refer :
Privilege t * rotect trade secret. Ev C tj 1060.
Air poIlution control districts: H & S C @ 24198 et sa.
Collateral References:
Cal Jur 24 Discovery and Depositions $983 et seq., Executions 886, Public
64 Am Jur 2d Records and Recording Laws $5 12 et seq.
State responsibility for assuring air quality under Federal Clean Air Act: 42 USCS
OfF~cers 4 143, Wills 6 547.
$3 1857-1857f
Law Renkw Articles:
Review of Selected 1972 Code Legislation. 4 Pacific L3 591.
Words and Phasa:
“Privilege,” “trade secret”: Cal Words, Phrases and Maxims
Annotations-
Discovery or inspection of trade secret, formula, or the like. 17 ALWd 383.
3 6254.7. Information on sources of pollution required by air pollution
control district: “Trade secrets”
- California’s Environmental Quality Act, contents of environmental impaa reports and prdurcs for
Rcvirw of Selected 1973 Code Legslation. 5 Pacific U 417.
review. 5 Pacific U 42.
8 6254.8. Employment contract between state or local agency and any public ,
official, etc., as public record not subject to exceptions of disclosure requirements
Every employment contract between a state or local agency and any public l
official or public employee is a public record which is not subject to the
provisions of Sections 6254 and 6255.
Add& Stats 1974 ch 1198 6 1. __ ~ - _-____I_- --___ .--_ ____- --_ - - __-.
6 6255. Withholding records from inspecthn: Justification: Public
interest
The agency shall justify withholding any record by demonstrating
that the record in question is exempt under express provisions of this chapter or that on the facts of the particular case the public interest
served by not making the record public clearly outweighs the public interest served by disclosure of the record.
Added Stab 1968 ch 1473 6 39.
~ - - _- - .. I- - _--
1
Cotlateral References: I
I 1 Attorney General’s Opinions: 1
4 Cal Practice, Discovery Proceedings $ 203.
53 Ops Atty Gen 10 (confidentizlity of venereal disease records, compiled and kept by local health departments pursuant to regulation of State Department of Public Health; right of health officer receiving subpoena for such record to vsert
privilege pursuant to Ev C 8 1040).
53 Ops Atty Gen 136 (availaSility for public inspection of files of Board of Pilot Commissioners; authority of board to impose requirement that persons wishing to
inspect material on file do 5’3 only in presence of commissioner or employee of
Pilot Commission and only at reasonable hours).
I Annotations:
Enforceability by mandamus of right to inspect public records. 60 ALR 1356; 169
Court’s po.,ver to determine bpon government’s claim of privilege, whether official ALR 653.
information contains stale SC(;iCtS or other matters disclosure of which is against
public interest 32 ALR2d 391.
-
0 XOTES OF DECISIONS
Gcnerally, when the pnblic intercst in securing procedure was not running its proper courx, and
infmation necessitates the free mmmunicxtion of that the agency was unfit to have temporaxy
such information on a privjlegcd, confidential ba- custody of the child, or that it was improbable
sis, disclosure of information so secured is against that the child would be adopted; whilc there is no
public interat. Terzisn v Superior Cou~ (1Y;Oj 10 absolute statutory ban on disclosure of such infor-
thereto, Evid code, § 1040, requires a weighing of
n-ity for presen.ing anfidrntidjty with the
necessity for disclosure in the interest of justice
~~~~i~~ v superior court (1970) 10 CA3d 286, 88
0
1 .
., . CA3d 286, 88 Cal Rptr 306. mation, nor any absolute privilege with respect ,
: In a PTdk for aPP’intment of a guardian of
a minor child committed to the Care of the u-s!fare
department and placed in a foster home for adop
tion, the trial court’abused its discretion ir, order-
ing the welfare department to ansxier iiitcrrcjgatc-
, ! CJ ~~w 806.
Under Pen. code, 5 2081.5, lim;ting acceSS to 1L ria as to the identity of persons having c~~tody of
the child following ammhent ar.6 o!hei pzrticu-
Iars concerning the actiti?ies of the dzpanrnent in
placement for the child, where the information
concerning the placement and adoption of the
mat and its employees in the course of their
the public prior to the time a claim of privilege
was mads and where no preliminary basis had
ken established for finding that :he adoption Rptr 205.
prjsoner,s records to the authorities listed therkn,
Gov code; § 6253, subd (f), exempting ced
pfison records from the general isc closure provj-
fixing the withholding of records for reasons of
pubiic po~jcy, the newS media was properly d&&
se~cm criminal charges in which crimind pr*
protection of the inmate’s right to a fair trial.
Yarish Y Nelson (1972) 27 CA3d 893, 104 Cal
COmKtion With atternpa to arrange adoptive sions of the statute, and Gov me, 5 6255, aU&o- i
,
‘I
. child WBS aquirtd in confidence by the deput- ams to the pison fifes of m inmate facing
duties, and wzs not open or Offich!ly dkdosed to dings the court had enter4 a publicity order in
.. . .. .
.- .
fj 6255. Withholding recerds from inspection: Justification: Public interest j
Organizations and administrati~ practice. (1974) 26 Hastings U 89.
Governmental privileges as rosdb;ock to efiective discovery; public records. 7 USF LR 283. ‘
. - . . .- . - .- - - - . ..- -- . . - - _.___ - _..- - -- ----- . ~, - -. .-
0 6256. IdcntiEable pu’olic rzcords: Right to copy or infdrmation - -. *. .
Any person may receive a copy of any identifiable public record or i
mpy thereof. Upon request, an exact copy shall be provided ~. .___ ~ unless. .. .- -_-I ’
’
irnpracticable’to do so. Computer data shall be provided in a form
determined by the agency.
~ . . ~--
Added Stats 196s ch 1473 4 39; Amended stats 1970 ch 575 5 3.
Amend rn en ts:
1970 -4mendment: (1) Substituted “copy thereof’ for “shall be provided with a COPY of alJ information contained therein” after “public record or” at the end of the first sentence; and (2) zdded the second sentence. 1
!
Collateral gefetences:
4 &I Practice, Discovery Proceeding 0 20:3. 64 Am Jur 26 Records 2nd Recording Laws 3 13. i .--- --- . . ~ - . , . . . . I . - - .. -. .. ~ -
fj 6256. Identifiable public records: Xight to copy or information
Writing received, owned, used, or retained by the state department of health in connection with the
Quality of Long-Term Health Facilities open to public inspection pursuant to the provisions of this
Section: H & S C 8 1439.
57 Ops Atty Gen 307 (reauirrment that mechanical “reader” be availabk to public for microfilm and
microfiche items, after copying and destroying city records; furnishing copies of requested records;
propriety of making addi:iond microphotographs or microfilm copy, required by Government Code 9 34090.5, from the original ciocument or from microphotograph thereof).
’
.
..-s:, - . .\
.. 6 6257. Request for cnpy: Fee
- Deferring disposal of civil acilon case file on request and payment of fee prescribed by this *tion: 9 69503.2.
Writing reczived, owned, used, or retained by the state department of health in connection with the
Quality of bng-Term Xeiilh Facilities open to public inspection pursuant to the pravisions of this
Section: H & S C 9 1439. . _. .- . . I . .. . ..
fj 6257. Reqdllt for copy: Fee 0
A request for a copy of an identifiable public record or information
produced therefrom, or a certified copy of such record, shall be
accompanied by payment of a reasonable fee or deposit eitablished by the state. or local agency, or the prescribed statutory fee, where
applicable.
Added St& I968 ch 1473 8 39.
Collateral References:
4 Cal Practice, Discovery Proceedings Q 20:3.
.. 8 6258. Errforcemerit of right to inspect or receive copy’lof records: Proceedings
Any person may institute proceedings for injunctive or declarative
relief in any court of competent jurisdiction to enforce his right to inspect or to receive a copy of any public record or class of public records under this chapter. The times for responsive pleadings and for hearings in such proceedings shall be set by the judge of the court
with the object of securing a decision as to such matters at the earliest possible time. .
Added Stats 1968 ch 1473 Q 39; Amended Stats 1970 ch 575 0 4. -
Amendments:
1970 Pmenhent: Amended the first sentence by adding (1) “for injunctive or declarative relief‘ after “proceedings”; and (2) “or class of public records” after
“any public record”.
Collaterid References:
4 Cal Practice, Discovery Proceedings 4 20:3.
.. . ..
8 6258. Enforcern6r:r:t of right to inspect or receive copy of records: Proceed-
ings
Writing received. owned, us&, or retained hy the state department of health in connection with the
Quality of Long-Tern Iiez.l:h Facilities open to public inspection pursuant to the provisions of this
Section: i-I & S C 5 1439. ..
.. . .-
0 6259. Ori;er to shol-; cause: Order to make record public: Order support-
ing decision refusing disclosure: Contempt . .. Orgulizatinns and administrative practice. (1974) 26 Hastings U 89.
.. ., ..
<- . CHAPTER 5
Joint Exercise of Po wen
.. ..
Meaning of “service rendered” as member G: goyerning board of Joint agcng created by two or more
’ counties under authority of :his chapter: 9 31680.01.
Application of chapter to saniwr). district$: H & S C f 6512
Creation of housing authori:ics; right of pubiic agencies to enter joint powers agraments: H Br S C
Prospects for regional plznning in Caiifornia. 4 Pacific U 117.
4 34249.
ARTICLE1 ~
.. joint Powers Agrcenents
Participation of cities and conn:ies in regional planning pursuant to joint powers agreement under this
Definition of “regional planning agency”: 5 66717.
:
Chapter: 8 65061.4.
-
to show cause: Order to make Cord public: Order
Whenever it is made to appear by verified petition to the superior
court of the county where the records or some part thereof are situated that certain public records are being improperly withheld
from a member of the public, the court shall order the officer or person charged with withhoiding the records to dklose the public record or show cause why he should not do so. The conrt shall decide
the case after examining the record in camera, if permitted by subdivision (b) of Section 915 of the Evidence Code, papers filed by
the parties and such oral argument and additional evidence as the
court may allow.
If the court finds that the public oEcial's decision to refuse disclosure is not justified under the provisions of Section 6254 or 6255, he shall order the public oi"licia1 to make the record public. If the judge
determines that the public official was justified j, refusing to make the record public, he shall return the item to the public official without
disclosing its content with an order supporting the decision refusing
disclosure. Any person who fails to obey the order of the court shall
be cited to show cause why he is not in contempt of court.
§6259. supporting *9 ecision refusing disclosure: Contempt.
..
.
Added Stats 1968 ch 1473 9 39.
Cross References:
Acts or omiss;ons const;tu:ing contempt: CCP 5 1209. Proceduie for determining claims of privilzgc: Ev C $8 404, 405, 914.
4 Cal Pracdce, Discovery Proceedings 6 20:3.
Colratersl Iieferences:
Legdative COURSZI'S 0p.k' c ions:
Public records--privilege. 1965 AJ 7152.
NOES OF DECiSIUNS
It was not ermr for the trial u)ilTi to refuse to 22 inspzction N~S thus not necessary to decide
make the in czinera inspection authorized by Gov v:hether the information was subject to official
Code, Fj 6250, of an inmate's pnson records in a pwiiege, and where there was no abuse of the
mandate. action -king disclosure to the news diicrction of the court in such refusal. Yarish v
media of such records, where such records we:e Seison (1972) 27 CA3d 893, 1M Cal Rptr 205.
not public records as a matter of law, where such ,
-- . .- ~.$6260;. $tatus of . existing. ,judici;?i. records un&es$kd. by .chapter
provision
The provisions of this chapter shall not be deemed in any manner to
affect the status of judicial records as it existed immediately prior to the effective date of this section, ncx to afFect the rights of litigants,
including parties to administrative proceedings, under the laws of discovery of this state.
Added Stab 1968 ch 1473 $39.
.: .. , . . . . '' . . .....'.,'. : .. ..I,, .. :...;x
Collateral Rekrences:
4 CaI Practice, Disccvery Proceedings fj 20:3.
Attorney Gene43 Opinions:
53 Ops Atty Gen 25 (W & I C 8 5328 as having no effect on jitdicial records of proceedings brought under Lanternan-Petris-Short Act [W & I C @So00 et
CITY 0x7 CARLSBAD
1200 Elm Avenue
CARLSBAO e CALIFORNIA 92008
TO: _,__._._.___.._.__.._____.__.________.__.. Car1 ?i bad Commun i ty ............. Cause
__..___ ..__,__ F! ...... 0.. __._ B.Q.X. .... 3.9 _..___ ~ _____.._._._
INVOICE NO. .......
Carlsbad, Ba. 92008 .. .._________.______.._.._______._.___._____...~.. -.---.
- _-_--. . SERVICES AND MATERIALS FURNISHED AMOUNT
! I
15 pages of xeroxed copies of documents I
@ .10 each I $1.50
I i
, ,_
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CARLSBAD COMMUNITY CAUSE
383 P'IMAKGAARE,T: :xkx 2 o 1:: d 3.2:: 3 9
CARLSBAD, CA 92008
(7 14) 729 - 8065
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State of California;
County of San Diego;
I, MARGARET E. ADAMS, City Clerk of the City of Carlsbad,
County of San Diego, State of California, hereby certify
that the attached copy is a true copy of the Grading
Permit on file in the City of Carlsbad.
DATED: July 23, 1976
c.- -~
City Clerk
', ,? ,; , , *d/,
SEAL
PERMIT NI
( I etter
w Application for Grading Permit
*b ,. .. CITY OF CARLSBAD L= lot
PUBLIC WORKS E, BJILDING DEPARTMENT S=subd i v
1200 Elm Avenue C=City CI 729-1 181 !-Xi0 Ai27 P~I 1- z pkIF ldi7/73 /
FOR APPLICANT TOfILL IN
Bond
_I Vicini?
Drainage structures - Retaini
Other - Compaction report
is correct and agree to comply with all City ordinances and State laws regulating excavating an
Signature of Permittee
Owner or authorized agent
THIS FORM WHEN PROPERLY VALIDATED BY SIGNATURE IS A PERMIT TO DO THE WORK CESC2
. 0
,I
4
State of Cal ifornia;ss County of San Diego;
I, MARGARET E. ADAMS, City Clerk of the City of Carlsbad,
County of San Diego, State of California, hereby certify
that the attached copy is a true copy of the Building
Permit on file in the City of Carlsbad.
DATED: July 23, 1976
9%; // &z:.F
City' Clerk
SEAL
c
r
fi *a 0 9
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t i 4
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MODEL KO. ___I____
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ARCEL NC
PHONE
STATE LlC. NO.
_- PHOVE LicriiSE ko.
-_ ___. _______.___ __,-~ .,.., ,
- --__-----~ - .--__~-------l__________-___~ __.___ ____ .___
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10 Change of irs(: trom
-~ -_____ _._-- _-__ ___ ---_- ~____..
Change of USE to I
> -. ----------
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(rotail sq. Ft. - _. __._
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_____
THIS PEFIMI'T Cf
NUED OR AEHNDONEG FOR A JIME AFTEF \yciir< IS cord- ____.
..__-__. WICEf.! PRDFERLV VALIDATED (!N WlS SPACE) THIS LS YOtlR PERh4lT _-_-__.I- - -.~_-___--__~ -...__ __.___ __ ._____
PLAN C!+ECK VALIDATION CK. M.O. CASH PERMIT VALIDATION CK. M.O. C
t TOTAL FEES $._........L_. 36 YYj 6
/
, 0 0
MEMORANDUM
DATE : July 23, 1976
TO : Mayor and City Council
FROM: City Attorney
SUBJECT: Potential Litigation Re. Referendum Petition
Attached hereto is memorandum to you dated July 21, 1976
outlining the status of the San Diego Gas & Electric Company'
application for a building and grading permit for Encina No.5
and the 400-foot smokestack. I have been further informed that the building permit was issued this afternoon. In that
regard, attached is a telegram to Mayor Frazee, dated July 22
the issuance of the building and grading permits. The Mayor' letter in response to that telegram is also attached. In the future, I trust, Worden & Williams will address communi-
cations regarding litigation, or the threat of litigation, to the City Attorney. My letter to Worden & Williams in reply to their telegram is also attached. We will attempt to keep
the Council fully informed of all future developments in this matter.
1976 from GiJorden & Williams, Attorneys at Law, objecting to
VINCENT F. BIONDO, JR.
'\ City Attorney
VFB/mla
Attachment
cc: City Manager
i 0 0
MEMORANDUM
0 DATE : July 21, 1976
TO : Mayor and City Council
FROM: City Attorney
SUBJECT: Permits for Construction of 400-ft. Stack
The City Council at your meeting of July 20, 1976 determined
that the specific plan amendment approving the 400-foot stack a the Encina Power Plant was an administrative action and, there-
fore, not subject to referendum. As a result, you voted to return the petition to the City Clerk and take no further actic
As a result, the San Diego Gas & Electric Company has renewed
their request for the issuance of a grading permit and a buildi
permit for the construction of the Encina No. 5 Power Plant and
the 400-foot stack. Ordinance No. 9456 was adopted on May 4, 1
It would have been effective on June 4, 1976 and, on that date,
the company would have received all necessary discretionary
approvals from the City of Carlsbad for the project. The
referendum petition which was filed on June 2, 1976 had the eff of suspending the effective date of the ordinance. The Council decision in determining not to proceed. with a referendum lifted that suspension. It is my opinion that as of July 21, 1976 Ordinance No. 9456 is fully effective. If the company's applic tion for a grading permit and a building permit are in complian with applicable City codes, they are entitled to the issuance c those permits. I have been informed by the City Manager that t grading permit will issue today and the building permit within day or two thereafter. Plan checking on these permits has beer completed for some time. As the Council knows the 400-foot st; was approved in 1973 and the grading plans and building plans were submitted at that time. Plan checking was complete and tk permits were ready to issue when the original approval for the stack lapsed. As a result, aside from a brief review, no furtl
plan check was necessary. We will keep the Council informed if
0
there are any further developments in this matter.
(.*
\ x, % '.
VINCENT F. BIONDO, JR,
City Attorney
VFB/mla
cc: City Manager Building Director Public Works Administrator City Engineer 0
..
..
- ,-_
.'.
'I
-
L 0 0
1200 ELM AVENUE TELPPk CARLSBAD, CALIFORNIA 92008 (714) 72'
Office of the Mayor
Ciep oe Qsaarls&a
July 23, 1976
Worden & Williams
Attorneys at Law
117 W. Plaza, Suite 1
P. 0. Box 825
Solana Beach, Ca. 92075
Gentlemen:
Your telegram dated July 22, 1976,.regarding the referendum
petition protesting the amendment of the San Diego Gas & Electric Company Specific Plan to permit the construction
of a 400-foot smokestack has been received and referred to
the City Attorney for a reply. In the future, please address
any communications regarding this matter to Vincent F. Biondcl
Jr., Carlsbad City Attorney, 1200 Elm Avenue, Carlsbad,
California 92008.
Very truly yours,
c ROBERT C. FRAZEE
Mayor
RCF/VFB/mla
I
4 4 e e
CITY OF c
1200 ELM AVENUE CARLSBAD, CALIFORNIA 92008
(714) 729-1 181
VINCENT F. BIONOO JR.
July 23, 1976 CITY ATTORNEY
Worden & Williams
Attorneys at Law
117 W, Plaza, Suite 1
P. 0. Box 825
Solana Beach, Ca. 92075
Gentlemen:
Mayor Frazee has asked that I reply to your telegram of July 22, 1976 regarding the referendum protesting the
adoption of Ordinance No. 9456 which approved the con-
struction of the 400-foot stack at the San Diego Gas &
Electric Company Encina Power Plant. Ordinance No. 9456
was adopted on May 4, 1976 and would have been effective
on June 4, 1976. The referendum petition protesting this
ordinance was filed with the City of Carlsbad on June 2, 1976. That petition had the effect of suspending the
effective date of the ordinance. The City Council's action of July 20, 1976, in determining that the matter is not subject to referendum had the legal effect of lifting
the suspension of the ordinance. As of July 22, 1976 the ordinance is fully effective. San Diego Gas & Electric Company has received all the necessary discretionary approvals for the construction of Encina No. 5 and the
400-foot smokestack and they made formal application to
the City for the issuance of their grading and building
permits. Plan check on these two permits has already been
accomplished pursuant to the company's application during the period the original specific plan amendment was still
valid. The plan check indicated that the project as propose was fully in compliance with all applicable ordinances of
the San Diego Gas & Electric Company was entitled, as a matter of right, to the issuance of the building and
grading permits and I have so advised the City Manager.
In accord with that advice, the grading and building permits have been issued effective July 22, 1976. If the City had not so acted, we could have been compelled to by a court of law. You, of course, remain free to take whatever action
1
the City of Carlsbad, It is therefore my opinion' that
I
w A c ’* e e
Worden & Williams
July 23, 1976
Page 2
you consider appropriate in this matter. However, we would appreciate it if you would direct any further communication
in that regard to this office.
Very truly yours, G!/d& 0- /:/: @W’f&; VINCENT F, BIONDO,
City Attorney
WB/mla
I
4
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t
a 0
1
THE FOLLOWING IS AN EXCERPT OF THE MINUTES OF THE REGULAR MEETING OF THE CARLSBAD CITY COUNCIL HELD JULY 20, 1976:
AGENDA BILL #3722 - REFENDUM PETITION.
Following discussion by the Council , Councilman Packard moved to reaffirm Ordinance No. 9456 and declare that it be reinstated to full force and effect and thus not sub- ject to the referendum process.
The motion was seconded by Councilwoman Casler and was passed by the following vote;
AYES: Councilman Lewis, Packard, and Councilwoman Cas'
NOES: Councilman Skotnicki
ABSTAINED : Counci 1 man Frazee
'%
MaygDAPlS L? -/Addf , (City 7
The above excerpt is from the Minutes of the Regular Meetii held July 20, 1976, which Minutes are subject to approval
by the City Council at its regular meeting to be held
August 3, 1976.
This excerpt was given to Frank DeVore, San Diego Gas & Electric Company, at his request via the City Manager on July 21, 1976. - ng
r-m 0 e
CERTIFICATE OF RESULTS
OF EXAMINATION OF REFERENDUM PETITION
I, MARGARET E. ADAMS, City Clerk of the City of Carlsbad, Cali1
hereby certify that pursuant to Section 4051.1 of the California Electi
Code I examined the referendum petition attached hereto and determined
be prima facie sufficient and accepted the petition for filing on June
Pursuant to Section 4051.2 of said code, said petition was exarr
by the Registrar of Voters of the County of San Diego acting as my Depu
determine whether or not each signature appearing thereon was the genui
signature of a properly registered and qualified voter of the City of C
accompanied by a proper date, street address and precinct number.
of that examination are attached hereto and made a part hereof.
The
This examination was completed on July 7, 1976 in accord with S
4051.3 of the Elections Code,
This certificate is hereby presented to the City Council of the
of Carlsbad, California for consideration at your regular meeting of Ju
1976, the next regular meeting after completion of the examination.
/ ./= &&#. MARGARET,, fO!+Lkk/ E. ADAMS t. \
City Ckrk City of Carlsbad
(SEAL)
c e 0
CERTIFICATE TO REFERENDUM PETITION
I, R. T. DENNY, Registrar of Voters in the County of San Diego,
State of California, hereby certify that on June 22, 1976 the attached
the City of Carlsbad, California, for checking.
I further certify that this petition consists of 230 sections. The
petition contains signatures and dates purporting to be respectively
the signatures of qualified electors of said City and the dates upon
which such electors had respectively signed said petition; that
was an affidavit purporting to be the affidavit of the person who
solicited the signatures thereon; that therein affiant stated his own
qualifications, that he had solicited the signatures upon said section
that all of said signatures were made in his presence and that to the
best of his knowledge and belief each signature to the said section
was the genuine signature of the person whose name it purports to be.
That I examined the petition and the affidavits of registration in thi
City current and in effect to determine therefrom what number of quali
ed electors signed said petition; that 230 sections of the petition we
examined and contained 1,926 total names and that of this total 1,826
were found to be qualified electors of this City. In accordance with
the provisions of the Election Code ten percent (10%) of the registere
voters signatures is required to qualify the petition, or 967 signatur
are required.
I further certify that the total number of registered voters residing
within the incorporated area of Carlsbad, as certified to the
Secretary of State on May 27, 1976, was 9,673.
IN WITNESS WHEREOF, I have set my hand and affixed my official seal
this 7th day of July 1976.
referendum petition was delivered to this office by the City Clerk of
attached to said petition at the time the same was filed as aforesaid
\
R. T. DENNY, Registrar of Voters
County of San Diego, State of California
BY Affidavit Pr
15 0 e
6
CERTIFI LATE OF RESULTS OF EXAMINATION OF
REFERENDUM PETITION
I, MARGARET E. ADAMS, City Clerk of the City of Ciirlsbad, Calif
hereby certify that pursuant to Section 4051.1 of the Cal-ifornia Electi
Code I examined the referendum petition attached hereto arid determined
be prima facie sufficient and accepted the petition for f-iling on June
Pursuant to Section 4051.2 of said code, said pet.ition was exam
by the Registrar of Voters of the County of San Diego act-ing as my Depu
determine whether or not each signature appearing thereon was the genui
signature of a properly registered and qualified voter of the City of C
accompanied by a proper date, street address and precinct number.
of that examination are attached hereto and made a part hereof.
The
This examination was completed on July 7, 1976 in accord with S
4051.3 of the Elections Code.
This certificate is hereby presented to the City Council of the
of Carlsbad, California for consideration at your regular meeting of 3u
1976, the next regular meeting after completion of the examination.
’
bi /$?Lq?ZA ’,. 47 L5+&Ac.;zci d, t MARRARE$/ E. ADAMS City Clerk City of Carlsbad
(SEAL)
V 0 e
b CERTIFICATE TO REFERENDUM PETITION
I, R. T. DENNY, Registrar of Voters in the County of San Diego,
State of California, hereby certify that on June 22, 1976 the attached
referendum petition was delivered to this office by the City Clerk of
the City of Carlsbad, California, for checking.
I further certify that this petition consists of 230 sections. The
petition contains signatures and dates purporting to be respectively
the signatures of qualified electors of said City and the dates upon
which such electors had respectively signed said petition; that
attached to said petition at the time the same was filed as aforesaid
was an affidavit purporting to be the affidavit of the person who
solicited the signatures thereon; that therein affiant stated his own
qualifications, that. he had solicited the signatures upon said section
that all of said signatures were made in his presence and that to the
best of his knowledge and belief each signature to the said section
was the genuine signature of the person whose name it purports to be.
That I examined the petition and the affidavits of registration in thi
City current and in effect to determine therefrom what number of quali
examined and contained 1,926 total names and that of this total 1,826
were found to be qualified electors of this City. In accordance with
the provisions of the Election Code ten percent (10%) of the registerel
voters signatures is required to qualify the petition, or 967 signatur
are required.
I further certify that the total number of registered voters residing
within the incorporated area of Carlsbad, as certified to the
Secretary of State on May 27, 1976, was 9,673.
IN WITNESS WHEREOF, I have set my hand and affixed my official seal
this 7th day of July 1976.
ed electors signed said petition; that 230 sections of the petition we
\
R. T. DENNY, Registrar of Voters
County of San Diego:, State of California
BY Affidavit Pr
J+ @ @
CERTIFICATE OF RESULTS
OF EXAMINATION OF REFERENDUM PETITION
I, MARGARET E. ADAMS, City Clerk of the City of Carlsbad, Calif
hereby certify that pursuant to Section 4051.1 of the California Electi
Code I examined the referendum petition attached hereto and determined
be prima facie sufficient and accepted the petition for filing on June
Pursuant to Section 4051.2 of said code, said petition was exan
by the Registrar of Voters of the County of San Diego acting as my Depb
determine whether or not each signature appearing thereon was the genui
signature of a properly registered and qualified voter of the City of C
accompanied by a proper date, street address and precinct number.
of that examination are attached hereto and made a part hereof.
The
This examination was completed on July 7, 1976 in accord with 5
4051.3 of the Elections Code.
This certificate is hereby presented to the City Council of thf
of Carlsbad, California for consideration at your regular meeting of JL
1976, the next regular meeting after completion of the examination.
1. a/&c/c_/ / rr. J /&i47Z, MARGARET/ E. ADAMS c
City Clkrk City of Carlsbad
(SEAL)
+
I 9 e * CERTIFICATE TO REFERENDUM PETITION
I, R. T. DENNY, Registrar of Voters in the County of San Diego,
State of California, hereby certify that on June 22, 1976 the attached
referendum petition was delivered to this office by the City Clerk of
the City of Carlsbad, California, for checking.
I further certify that this petition consists of 230 sections. The
petition contains signatures and dates purporting to be respectively
the signatures of qualified electors of said City and the dates upon
which such electors had respectively signed said petition; that
attached to said petition at the time the same was filed as aforesaid
was an affidavit purporting to be the affidavit Of the person who
solicited the signatures thereon; that therein affiant stated his own
qualifications,
that all of said signatures were made in his presence and that to the
best of his knowledge and belief each signature to the said section
was the genuine signature of the person whose name it purports to be.
That I examined the petition and the affidavits of registration in thii
City current and in effect to determine therefrom what number of qualij
ed electors signed said petition; that 230 sections of the petition we1
examined and contained 1,926 total names and that of this total 1,826
were found to be qualified electors of this City. In accordance with
the provisions of the Election Code ten percent (10%) of the registerel
voters signatures is required to qualify the petition, or 967 signature
are required.
I further certify that the total number of registered voters residing
within the incorporated area of Carlsbad, as certified to the
that he had solicited the signatures upon said section
Secretary of State on May 27, 1976, was 9,673.
IN WITNESS WHEREOF, I have set my hand and affixed my official seal
this 7th day of July 1976.
\
R. T. DENNY, Registrar of Voters
County of San Diego, State of California
BY, LJ/ ,I / LA - bp2.f ‘a
Affidavit Prycessing Su
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' .-' - - -@- 0 e- "7.
(* 55 J> 9 5 o,
+$??
CERTIFICATE OF RESULTS +-+q OF EXAMINATION OF REFEREPTDUM PETITION
I, MARGARET E. ADAMS, City Clerk of the City of
ci)w/=awi Carlsbad, hereby certify that pursuant to Section 4051.1 of th
California Elections Codedthe referendum petition attached
hereto we, c%azuwd. , determined to be prima facie sufficient
and wa-6 acceptednfor filing on June 9, 1976.
1 WflINtf?'
pd 4'
s1p miha N
Pursuant to Section 4051.2 of sa'd code, said petition r?Y S'Ht dPc;iQ&jj d/tl' ucI/?@d& OF MU3WFIOP C&& /g,&&cG&&&&A5 ey 44WPy.
was examinedhto determine whether or not each signature appear
ing thereon was the genuine signature of a properly registered
and qualified voter of the City of Carlsbad, accompanied by
a proper date, street address an -1.
i g2' _, iw '., '&&, bvy\Lc'yL.&L dw? 0L.d &C,ic4-dC;c,.
petitiorp contained
signatures '7 4, ;/ A \i
the referen um pe$ition.
determined tspt $he attached Kqet
signatures and?that each secti
by a valid affid3vit.
s a re
\, I
\. i \!
This examination was completed on July 7, 1976 in accor
with Section 4051.3 of the Elections Code.
This certificate is hereby presented to the City Counci
0 0
of the City of Carlsbad, California for consideration at
your regular meeting of July 20, 1976, the next regular
meeting after completion of the examination.
MARGARET E. ADAMS
City Clerk City of Carlsbad
ATTEST :
(SEAL)
CATE 7-20-76 ~~ P iV: TO
Favoring stack: (Homeowners )
Keith Kennedy 438-1809
2319 Caringa Way
La Costa
I’
~
I
~
Homer Davis
1794 Basswood
Carlsbad
Both fully support Mayor Frazee’s remarks
cm- REPLY ON -THIS SHEET -.“M
_____-~__ __ -.- ~ ___.._ ~~~ ~~~~~~~ _. I. ~ ~~~~- - __
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Wame E. Sto3,t
5359 Don Ricardo Dr. CZlsbzd, CA 92058
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Mrs. John Silberberger CL -0
3371 Donna Street 37
/‘ /- @.e
Carlsbad, California 92008
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MRS. H. HOWARD CLOUD
3430 Highland Dr., Carlsbad, Calif. 92008
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~~~~~~~~~~,
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Captain John A. Gray, USN (Ret) , '1
5451 Los Robles DAve
Carlsbad , California 92008
JJiY 25, :976
m* ice EimorabEe @o-.ncll City of Cxlsbaci 1220 Flm. Avenue - / -,/I
Czrfsbad, California
Distlngwished Kmbers :
SG far as "Ge Co.~ril.cil of the City of Carlsbzd. FS cr,nl.cernefi9 tkg & -c'efere3ndurn ~etltlon Goes not req2i.r~ a decision as 53 ivhether or rot a 43G-foof; stack shodd
be 'milt at the -,A&L x~cina Thermal ?o.~er Plant,
Nea-r;.y tvm t:rPI~)u.~rand voters of OUT Zity have 0 asked
stzck, not ':he petition is sz;:fI"icient evidencs of the 3eeZ
for a rzferend-m. Sin22 the law is fairly clezr on the sQbject of referenzl-~ms~ -the Cox~cil sh~*iId be
gxide3 by it, and not bs diverted 5y e~otionzl side issues.
Tf y'=;r d2cisicr.n OR the referendlm2 is re?iugnt=,nt 20
the saurts decide deSE.tz3l.e ~clnts of Pi?w, sue? 8s *vh2ther t'qe Caunci?'s zc:s hz-re bezc adminis5rElive
or legislative,
A~t:.lotig?~ this amm~ch nay see3 sverly-siY?lified, it is clear that ",.e CO-LKIC~~ slzocld c~nfine itself
referer13ux in I-~S~GCS~ to a petition 3f nesrly tvm
-t;:?ousand CarfsSed v3ters,
J
,,/ /\'
???e- -
that yo2 rn. condu2t a .PefellYelsdum OF the fate 01 thst Ice decj.slg.rl nQ-# ="?Xing y3u is whether or
swne, let them seek redress in the ccjurts. Let
In this instmze to deciding wh2ther to hold a
-,n - ,/-. :-,.- 2 I e 0
Einma R. Salsen
July 20, 2.976 $126 Park Dvive
Carlsbad, CA 92008
.--.
.,L 2
Mayor Robert Frazes 2nd
?%embeys of City Car1sba.d So-;ncii
1 heve been prornc'ced - to tfiiirfte t'n5.s le-bter, i-oy first, to the Si.tg of Czrls'bsd Coiincil for the fcl_lc~iinn; reasons o
!.:+e 'have ewE4 3r .i?-ty 41- Csrlsb2d fc~ mnny ygars, pure
s7me fc.r the purpose per'cfel retlremont 8ntd thFs pleasure li~j.~q fn tne BieeFi. '.:e I~CVQ,~ hle~e 5n 1360 a25 !EVP 2nj0;~~id
llfe h~re, ~~~~c)i~!J. 23~13bqij qjfdo~ i~nd h<:ve $Gem :igrjpy ti:l 2~8
.-.
mcv? qnd live for t3,- sa~e prfvhlese,
--. p: *>. ,. I dc not alneys < 2e :TI~G~ zne San Xeqc iTzs C?C .~Iectloic
r:ornpany-. I: do r1ct h? ck 5-n t?ie ceiapsny nor Is there 8fi in ?ly f2mi;:y e;c,clov?!j ~. Y K?y
,The 3;rowth cf our Country and Comaunities mazes it nsc?
LG havs the uig utilf~ty ccml:sr;.ies. .L$ ti3k2s lots 2ni? lo-ts cl
nomy to dev?lcp, opsr~'cp G xaintain t:iese facilities o 'I'h
need ;!ad n:njoy, CUT sc;mo1s, nanufacturirig, small business I"
2:nd yss ~ven f'arm.ing fcr our food. Irrdustry is also imports
LO us for employrent of OUT cltlzeris,
- L
EOt 0:nl.y silpp1-y energy To?? UT ~C~FS, but for 811 the things
L
I u.:r,deTstand 'cas SZcEneed this sxoke stsck tc operate plant NOPS effPcigntly 2nd thzt it hz:s 5~3~ approved by tfie of Ca pi sb ,cd 'CP1$ L~A? Tn " the !CCj ?tee, md wiL1 improve the a2r
rather thsn make it worse. i ayree t'nzt the smoke? stack v;?l
be 8 "Ee:.utyi' 'out it wont he "311 tht ixg3_y ei'~hsr -- we ca-o_'
have cvsryting;,
9
Cur systerc ct Govsrnmnt is th~t we slsct people to rep us, entrustks ~CI them to msks deeisfons fnr our hest inte-rs
md protection. CIO socfatg cez. cw propeply or be ordsr3.y
9y.t t-hses Governmental Fodqsn " 3 e CBC an6 %re snti'cled to p
OUT views to them, :?:it ft is on1 just 2nd fair that ~e ~fve the X*C?S~~RC% - and ~~th~~kt>r t~ m.ake G~cisions 1Ajhieh 2~3 fey ou
fnteX?est, ..
. .,.
.!- *?he SJZCrJ3 is vitsl Lg our czrnflilriity net o:nlg in seyTiice bilt very iqortantlg, t'nqi:~ ccn.k,Ff.':j-dt?.cn t;o our .i;g.,x strij.c!c;ur
ectf'iiilg yours,
7 imma FL* Salsel?,
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W 0
2421 INDUSTRY ROAD &@Mdzym*%M-
MARRON BRQS. INC.
P. 0. BOX 1132
OC EA NSI D E, C A LI FORN I A 92054
?E?-2246
WE THE UNDERSIGNED, RESPECTFULLY REQUEST AND URGE THAT YOU ALLOW
THE SAN DIEGO GAS +4ND ELECTRIC COMPANY TO ZRECT THE 8STACK'-
c v
GTP 3-& 6 kz b' -
C, MILLIORN dT. BLdKLJE
11 d / c d2 f?/h&, UP JU. $Ad
B. DT C, Klatt C. Marron
-
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1314 fiPlnnesc3ta
Ooeansfde, Calif.
J~IY 15, 1976
Caarlslmd. City C@uncIl
Carlsbil , Calif.
Dear Coane13. Rfeabera:
As 1 an nat a resident sf pur @%ty , I wan @nly cx-
press my views a8 a emcorned eftfzela who Is te be dlrd@t-
lg affeeted by ymr de@isitm relative te the pwer plant
tXplrFI8 1~.
his pellatlQn an& fuel shsrtages are Enrrjsr e and art-
tltrr2, prtsblems, Ta ae the sensible selntfrpn is a &ere aad
wider utflfzcstisat. ef alean eleetrfe pmcr, lerabweecr gcnor-
attd.
It requires Lsng perids ef tfme te put new emera-
tws on tktt llae, We ntrtd te, expedite the start @f' em@=
trnetten @f mew nalta thrcsughout caw natfwi , and in Smtb
ern Crelifernla in partfealar, te cPffset the emtintling
deallrze ef' cmr sther ptbwer seurets.
As fer the hfgh stask that fa being qznestfened, I
am a bs~e~tsman an& all !t eemld say en that weuld be lf Thank
Yeu '1 fer a aery talualsle navagatftmaf 3.stadglrrrIs.
Thank jrm far a21mlng me te express lay epfaisn.
Verr trulg ts rts,
Geerge Suttem
/by L3* 7
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Brake Hardware Supply Co.
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2655 Carlsbad Blvd. Carlsbad, Ca. 92008
Commercial L? Residential Builders Hardware
BUS: (714) 729-0457 RES. (714)
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Honorable City Council
Although I am a City employee, I also have been a taxpayer in
Carlsbad for over 20 years. I am not in the habit of writing
letters over city issues but feel compelled to do so at this
time. The purpose is to ask you to stand behind your decision
on the "Stack" issue.
Through the years we have had different groups challenge Counc:
decisions, as it should be at times; however, I do not feel th:
is one of those times. I feel as long as we allow subdivision
manufacturing, etc. and don't have a high wall around our city
we very much need the expansion of the Power Plant. With this
in mind, the longer we wait, the more money it is going to cos.
As you know, the costs are always passed on to the taxpayer an(
I think costs are up high enough now; not only for myself, but
what about all of the people who are on a fixed income.
Again, let me ask you to stand behind your decision to allow tl
expansion and not let a comparatively small special interest g:
sway your thinking.
4 yy&
H. Howard Collins
3435 Valley Street Carlsbad
-r -
" 0 e
3985 Stella Maris Lane
Carldqd, California
16 July W.?6
1 -..
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To: Mayor Robert Frazee
Members of the City Council
1200 Elm Street
Carlsbad, California
City si Garlsbad
Subject: Encina Power Plant; reqdest for construction of 400 foot
Dear Mayor and Members of City Council
IC is hoped that the City Council will, in your ouncil meeting of
20 July 1976, approve the request from San Diego Gas & Electric Company
to allow the construction of a 400 foot stack.
My request is predicated on the following facts:
Stack
U
c
1, Three or more years of hearing into all aspects of the proposed
construction is sufficient time for all reasonable people to come to a
conclusion as to the justification and possible damage to air purity.
2. That all other governmental agencies involved in investigating
all ecological angles in regard to the environment have approved the
project .
3. That any delay in thecity Council's action can only lead to
more dissension within the Community.
4. That the City council has individually and collectively
listened and investigated all sides of this question and any abrogation
of your responsiblity to act on this request at this time will increase
future construction costs.
5. That the inevitable increased cost will be borne by the Citizens
of Carlsbad in the form of increased utility bills.
Y ROBERT K. SONNEBORN
-5 ,: *
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2398 Cipriano Lane Carlsbad, Calif. 92008 16 July 4976
Honorzble City Council
L '--dl 1200 Elm Ave.
klsbad, 5lif. 92008
Gentlemen and lirs. Casler:
In respmse to Hr, Chase's letter -to the editor of the dlade TriSune
Nrs. Johansson and I wish to state that we are in Tavor of constructing
the fifth generating unit and the 400 foot stack by the San Diego Gas
and Electric Company.
We feel that the plant was here when we moved to Carlsbad and that the
company has been a good neighbor, especfally from a tax standpoint and
allowing all- use of their property for recreational purposes. He
knew that we were moving into a .growing community and section of the
country which would need additional power and other facilities in the
future and think that it is not right to stand in the Nay of improve- ments that would provide these additional necessities, It is not fair
to Carlsbad residents, but also to those of other communities served
by San Diego Gas and Electric Compny.
tie have confidence in the wisdorn and effectiveness of our city council.
Their purpose is to make a thorough study of each problem which arises
and come to the conlusion which in their judgment best serves the needs
of the people of OUT city. In a way we resent the interference of a
group of people whose actions would cause delay and additional expense in providing adequate utilities to us.
Actually, &se Johamson signed the petition against the stack, but has
changed her mind since.
_-
Sincerely yours,
,
, LC- -- --\ -
1kkFan c. Johmsssn Lt CO~ @ 'USn-Retved
Mrs. Casler and Gentlemen:
After sturiying the pos and cons of the situation, I have found that
I made a mistake in signing tfie petition and wish my name removed from
it, and added to those in favor of the stack.
- , - *' . <- ,/ 5 >?L r7<
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Hehen 'i. Johanssor,
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JcIy 16, 1976
ps! Lke szonoT.ab;ls Gf'&j7 .;o-qG$;k
92c3 ZPm &-VeE?&e Casslskad, cs 92
The EsnagtabBe Cf5y Co-bansfl:
'khOL,gk no% rcernbers of Gazanlsbad Gom;muni$y CaUSE, we su7spept,
the PefBrBadu3? pe$%$i.sn op9ssing the expaz=.sion and con- s%ruc%ion of a 4OO-fs;st stack by Sari Y"iego Gas & Electric zc
.AC Sfnserely,
$--cha%e 0; Eag&?cB
Le zoy F, KOL-ris Yarrsie Q, azi2i 1
Carlsbscl, GA
Lt w-- ecCec-vkL Carlsbad, California 92008 - Carlsbad, California
July 18, 1976
The Honorable City Council
1200 Elm Avenue c
Carlsbad, Calif. 92008
Dear Sirs:
We elected a mayor and four city council members to act- And if that wasn't enough, a our behalf and to govern our city.
city manager was chosen; and the city council established a number
of commissions, including the planning commission, parks t& recreation,
etc., with conmissioners appointed by the mayor, to study the issues
and mr?ke recommendations to the council,
Our feeling is that you, as our elected officials, should be
governing our city, and making decisions based on your own good
judgment after study and discussion of recommendations made to' you
by your commissioners, etc,
But the point is that we are sick and tired of a MlNORITY
of so-called good-intentioned people, i.e. Carlsbad Community Cause,
speaking for us and saying WE don't want so and so done - when they
are really speaking for themselves and a handful like them:
Me are very much in favor of the stack and what goes with it,
as it was OK'd by the agencies that know more about it than we do.
Also, we feel that it is a very much-needed project,
We also say, why not allow the refinery,which we won't see or
hear or smell, but which we certainly have a need for, and again was
cleared by most all the agencies. And ow schools will rofit and
so will all of our tax-pa,ying property owners, of which I; happen to be one.
And one more item as long as we are at it. Let's forget about
a children's library (a status thing!) which will be used by more out-
of-town children then our own, as our library is today. And instead,
let us update our police department with more equipment and man-power
if needed, and also let us spend some of that same money on our fire
department, especially for a paramedic pi-ogram.
Let's put our money where it will benefit 'WE THE PEOPLE'':
Yours sincerely,
Nr. %.7gG.@i/%& and Mrs. Richard M. Kelley d 1475 Pine Avenue
Carlsbad, Calif. 92008
TO MAYOR AND CITY COUNCIL
Via telephone call to City Manager’s office:
Mr. Paul Warren, speaking for both his wife and
himself, wish to urge the City Council to stick
to their orlginal decision regarding the 400’ sta
Mr. Warren lives at Rancho Carlsbad.
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M~. 8. M~~. E. J. Stingley 3334 Seacrest Drive
Carlsbad, Ca!;f. 92008 il
July 12, 1976
TO: The M.layor of Carlsbad and The Carlsbad City Council
I am writing to protest the action of "Community Cause"
to the construction of the enlarged sxokestack for the Encino
Plant of the San Biego Gas and Electric Company,
I feel that the smokestack and subsequent expansion of
the Plant are necessary for the good of the area.
/" r A/ \ 0 e
July 15, 1976
Carlsbad City Council
1200 Elm Street
Carlsbad, California 92008
Dear Council Members:
This is to notify you that I am in support of building Encina Five.
Sincerely,
I@&
+hahamu
KATHERINE GAY CHASE
3147 Jefferson Street 85
Carlsbad, California 92008
0 9 f
July 15, 1976
Carlsbad City Council
1200 Elm Street
Carlsbad, California 92008
Dear Council Members:
I would like to notify the City Council that I am in support of
building Encina Five.
Sincerely,
h 17
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RICHARD L. CHASE
3147 Jefferson Street #5
Carlsbad, California 92008
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rjlr E.C. Williamson.
Carlsbad, Calif, 92008
July 12, 1976
1530 Sunrise Circfr?,
Carlsbad City Council, 1200 Elm Ave,
Carlsbad, Ca. 92008
Dear Sir,
referendum on the SDG8cE smoke stack and any future decision on the proposed
refinery,
I would draw your attention to'
the June 22, 1976 Wall Stree-t Journal
report of a recent Supreme Court ruling.
of the people to hold a referendum on a
controvertial land use and development
issue.
In a six to three decision. the
Supreme Court upheld the right of local voters &e seeking more say over land development in thejr communities and approved the right of localitkes to sub.jecrt changes to voter referendum.
State Supreme eourt decision. In making his finding, Chief Justice Warren Burger wrote for the people:
'I UNDER OUR CONSTITUTIOflAL ASSUMPTIONS,
CAN DELEGATE IT TO REPRESENTATIVE: II?STRWENTS 'C\rHICH THEY CItEATE. 'I
Regarding the legality of a
The case concerned the legality
The ruling overturned a previous
ALL POWER DBRIVES FROM THE PEOPLE IWO
He also - - said the people in& this case had properly reseryed this
power for themselves.
Sincerely
gk.%.4%- Qo PI E>.
i. ~~~HMU,~IPY L'w
t E.C. Williamson
____ L - <
3275 &aezel Lane-City At2 7-/9-74
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Mbrs-City Council: c, &i?&d&
For your consideration, we are op,msed to the 400' stack & 5th Plant.
Six months ago we were in concurrance with the conktruction of the refinery as proposed by SDW.
in the coming years.
We presumed Carlsbad was blessed with a balanced council who would actin
accordance with the expressed view of the populace. Events of the past few weeks have caused us to reconsider.
feel sure where the truth lies. of this twn should not be 'cut-down' and degraded to the status of criminals.
I don't know who is correct but I get careful when an elected official who is to
represent the majority of the town is as indhfferent zx or misquoted, as our
mayor's reference to the signators.of the stack referandum, was published.
I say, let the people vote.
reflect the majority of the community, then get it on a ballot or do whatever
clerical work is needed to get the majority viewpoint.
There has been too much documentation wherein 'elected representatives of the
people* disregard openess, honesty and good common sense.
attitude away from Carlsbad.
(if qkoted correctly in B-T)that you are a crook if you don't agree dth him,
then I am inclined to look with question on anything he eswuses.
is bad, because no man is wrong lOO$ ofithe time.
Hake it easy and natural for us to trust you in the performance of our desires.
The public is wrong at least 3 of the time but let us live with our errors.
We will not be able tosay, "We didn't gpt a chance to be heard and evaulated
honestly and f airljr" .
Because we felt it necessary to meet our energy situation
We really don't
We think that 1800 plus signatures by people
Unless you are vemj sure that your decisions
Let us keep that
When a representative of the council implies
Jnd that
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SAN DIE60 GAS 81 ELECTRIC COMPANY ' 3 33X'8SI CAN DIEGO CALIFSRNIA 921 2
1711 232 4252
July 13, 1976 ILE 30
R E MORRIS
PCESIDENT
The Honorable Mayor and City Council
City of Carlsbad
1200 Elm Avenue
Carlsbad, California 92008
Attention: City Clerk
Gentlemen:
The attached news release was just delivered to
the area newspapers.
Macario Refinery is concerned.
It represents our position insofar as
If the City wishes to proceed with the annexation,
would you please have your staff advise us how they plan
to proceed so that we may provide appropriate assistance.
$ry truly yours,
,f ,
:-*- *s-*-
R. E. Morris
REM: gl
0 e SLB 230
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BUREAU FOR IMMEDIATE €??LEASE
@
SAN DlEGD GAS & ELECTRIC COMPANY
p. 0. BOX 1831, SAN DIEGO, CALIFORNIA
PHONE 232 4252 EXT 1338
Carl Welti, News Bureau Director
%AN DIEGO, July 13--San Diego Gas SC Electric Company
today notified Pacific Resources, Inc, thzt the utility is
terminating its participation in the Macario Refinery
feasibility studyp effective imnediately.
Robert E, MorrLs, SBG&E president, said '*We want to
settle the problem that hzve arisen in connection with the
proposed refinery and to have 'ire Farther voice in the
5 eas ib ility study o 19
Inrp1ici.t. in ehe FeasiLiIkty study was the understanding
that SDGa would prov5de a site f0r the refinery on its
property east of the Ewcina Power Plant, Most of this
property is under County jurisdiction, and Morris said if
the City of Carlsbad wants to initiate annexation
proceedings, the eoqany will support the GLty*s effort
to do so,
/ISH/
7/13/76
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PRESS RELEASE
A petition seeking a referendum on Ordinance NO. 9456,
which approved an amendment to San Diego Gas and Electric
Company's specific plan for the Encina Plant to permit con-
struction of a 400-foot stack to replace the four existing
stacks, was submitted to my office on June 2, 1975.
applicable law, I proceeded to examine the petition as
required by the California Elections Code.
total number of registered voters of the City of Carlsbad,
last officially reported to the Secretary of State by the
County Registrar of Voters. The total is 9,673.
After consultation with the City Attorney as to the
The first step in that examination is to ascertain the
The second step is to count the signatures 3s they,appear
on the petition. Taking them at face value if all the blanks
on the petition are filled out the signature is counted whether
or not it is valid.
In counting the signatures any signature which did not ha\
the date of such signature, the precinct number and the address
given for the person signing, was disregarded.
The result of my count indicates that the petition contain
ed 1,930 signatures.
In order to accept a referendum petition for filing it mus
contain at least 967 signatures; that is 10% of the total for
the City.
From the foregoing, I have determined that the number of
signatures on the petition prima facie equals or exceeds the
minimum number of signatures required to accept a referendum
petition for filing. Therefore, as of the 9th day of June, 197
I have accepted the petition for filing.
The Election Code requires that I now proceed with a detai'
ed examination of the petition to determine whether or not the
signatures on the petition are valid. This examination must be
completed within thirty days of June 9th, 1976 - that is not
later than July 9, 1976.
r"- - 0 e
Upon completion of my examination, I will attach a
certificate to the petition showing the results of the
examination and present the petition and certification to
the City Council at its next regular meeting.
the City Council in regards to the petition at that time.
The City Attorney has indicated that he will advise
MARGARET E. ADAMS
City Clerk
0 e
CERTIFICATE
I HEREBY CERTIFY THAT THE LAST OFFICIAL REPORT OF REGISTRATION SENT TO THE
SECRETARY OF STATE WAS DATED MAY 27, 1976.
REGISTERED VOTERS IN THE CITY OF CARLSBAD.
THAT REPORT SHOWED 9,673
DATED THIS 8TH DAY OF JUNE, 1976, AT SAN DIEGO, CALIFORNIA.
d
e
AFFIDAVIT OF
IRMA M. RICHARDS
STATE OF CALIFORNIA)
COUNTY OF SAN DIEGO)
) ss.
Pursuant to Section 29225, California Elections Code,
Irma M. Richards being first duly sworn, deposes and says:
I am a proponent of the attached Referendum petition.
The signatures filed herewith constitute and are a11 of the
signatures secured or obtained in connection with said petition.
7,
f.
'7
u
Subscribed and sworn to before me on June 2 r
1976.
~~Q~~~~~~~~~=~~~~~~~~=~~~~~
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Q,- $/'> q- g NANCY K. MEE 3 '-) pL //W y I +e, OF'!Cl9L SEAL
4; E Nancy . Mee
Ut: NOTARY P!JBLIC * CAL;CORNiA 2 Prircipal Cfilce, Sao D1cg0 eo. Caltf.
MY Commissm Exp. Jan. 26, 1978 ds ~~~~~~~~~~~~~~~~~~~~-~~~~~ 4 e
e e
REQUEST FOR COPY OF CITY CLERK'S CERTIFICATION
TO: The City Clerk of the City of Carlsbad, California
Pursuant to Section 4051.3 of the California Elections
Code, the undersigned makes this written request that you forwar
to me a copy of the certificate showing the result of your
examination of the PETITION FOR REFERENDUM ON CARLSBAD CITY
ORDINANCE NO. 9456.
CARLSBAD COMMUNITY CAUSE
F /7c
/* I / P.0. BOX 39
Carlsbad, California 92008
June 22, 1976
Registrar of Voters County of San Diego P. 0. Box 23044 San Diego, California 92123
ATTENTION: Barbara Vandergriff
As of June 22, 1976 I presented to your office 230 pet1 tions regarding Ordinance No. 9456 adopted May 4, 1976 by the City Council of the City of Carlsbad.
Between the dates of June 9, 1976 and June 22, 7976 I precincted and verified the signatures of the circula- tors on the petitions.
It is respectfully requested that your office verify the signatures contained on the 230 petitions, and that the certification be completed no later than July 7, 1976.
I have been informed the Secretary of State certified on May 27, 1976 as to 9,673 registered voters in the City of Carlsbad; therefore, in accordance with the provisions of the Election Code ten percent (10%) of the registered voters signatures is required to qualify the petition, or 967 signatures dsercgqlficdd.
Thank you for your cooperation in this matter.
MARGARET E. ADAM City Clerk
MEA:ma
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P 0 BOX 1831 SAN DIEGO CALIFODNIA 92112
(714) 232-4252
R E MORRlS May 6, 1976
PRESIDENT FILE NO
Dear Customer,
to the cornunity of Carlsbad in %he next few weeks, Energy is going to become an issue of great importance
You will be hearing a lot of talk that there is no need for Encina 5, San Diego Gas & Electric Company's proposed addition to its Carlsbad plant. You will be asked to sign a referendum
petition placing the issue on the ballot, thereby rejecting what
it has taken state and your QWI local government four years to decide.
Before you consider giving your signature, 1 would like to ask YSU to ~Qt-bslider this: in unnecessary and tremendously high costs for SB&E customers.
Demand
projections tell us that without new sources, shortages and outages could be expected as early as 1978--at the latest by 1980.
Encina 5 is the only new energy source that could possibl be ready to meet that demand. Furthermore, it has already received
approval from every responsible environmental and government agency
including the Carlsbad Planning Commission and City Council.
Because sf improved efficiency, Encina 5 would cut fuel oil con- sumption by 50,000 barrels each month. That represents a savings at current oil prices of $700,000 a month.
Further delay of Encina 5 will result
The need for new energy sourses is very real.
What is the actual cost to you of delay on Encina 5?
An additional $680,000 is bebg lost each month due to
construction cost escalation and interest. The total expense of delay amounts to $%,380,000 each month. These expenses eventually show up on your utility bill.
Cleaner aFr is one of the benefits. With a single taller stack,
rather than several short stacks, emissions will be released into
upper air levels where strong winds dilute and disperse them more
readily. Another benefit is the added tax base, which will tend to relieve the pressure on homeowners. The taxes we will pay on
Encina 5 are roughly equal to $135 per year for each residence in Carlsbad.
There are ocher benefits to be gained from Encina 5.
AN INVESTOR OWNED CORPORATION
W W 0
Page 2 May 6, 1976
Please consider these issues earefuahly. Your signature
QII a referendum now can only result in costly delays and the threat
of energy shortages in the future. The need for new cost-efficient energy s'ources is clear, and four years of delay and discussion are enough e
US on this important energy issue and refuse to sign the referendum
petition D
Thank you for your consideration. We hope you will Suppol
Sincerely,
Robert E, Paorris
President
May IL 1976
RECEIWED of GEORGE W. FLANDERS a form entitled
‘‘PETITION FOR REFERENDUM OH CARLSBAD CITY ORDINANCE
NO. 9456”, which was blank and contained no stgnatures.
%&
MARGARET E. ADAPIS City Clerk
-~_~ ----------P----------- _-. “I_____ - ------------. ,- --
-
Name of registered (official Residence, number I Date of Pre voter of Carlsbad use only) and street Signing - , sign)
(pu-i-nT)- - - - - - - - - - -
7sign)
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(sign)
(print) ----------_----
rignl -------------- (print)
(sign)
(print)
(sign)
(print)
( s iqn)
-------------
-------------
--------------- (print )
I I I
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DECLARATION OF
I say that:
I My residential -rating address is
Carlshad, California, and I am a qualified registered voter in said city;
I circulated the attached section of a PETITION FOR REFERENDUM ON CARLSBAD CITY ORDINANCE NO. 9456;
All signatures to said attached section were obtained between
,1976, and , 1976;
According to my best information and belief, (1) each signature
appearing on said attached section of the petition is the genuine signature of the person whose name it purports to be; signer of said attached section of the petition was, at the time
of placing such signature on the petition, a registered qualified voter of the city; and (3) I personally observed each signer placing thereon his signature, the date thereof and his residence address, by street and number, or, if no street or number exists, then a
designation of such place of residence which will enable its
location to be easily ascertained.
I declare under penalty of perjury that the foregoing is true and correct except as to those matters declared on information and belief and as to them I believe them to be true.
Executed at , California, on t 1976.
(2) each
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