Agenda - Planning Commission - 09/07/2017

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Zoning Bulletin August 25, 2017 I Volume 11 I Issue 16 The court further explained that to determine whether an initiative — such as Measure R—enacts legislation, the test is based on substance; the initiative is legislative in nature if it prescribes a new policy or plan, and it is administrative in nature if it "merely pursues a plan al- ready adopted by the legislative body itself, or some power superior to it." More specifically, said the court, "[i]n the land use context, legisla- tive acts are distinguished from administrative or adjudicative ones on a categorical basis." For example, emphasized the court, zoning ordi- nances and adoption of specific plans are legislative, while variances, CUPs, and subdivision map approvals are adjudicative, and adoption. The City had argued that because Measure R concerned specific plans and voter approval of them, Measure R was a legislative act and therefore did not exceed the initiative power. The court disagreed, cit- ing a difference between voter approval of a specific plan and requiring a city council to prepare a specific plan to be submitted for voter approval. The court found that while the former is a legislative act, the latter is an adjudicative one. More importantly, the court found that, in substance, Measure R was not setting legislative policy. It did not set standards for building height, size, or configuration, but instead required specific plans be prepared containing such details and to be submitted to the electorate. "The problem is Measure R requires details to be in specific plans that are voter -approved but sets no substantive policy or standards for those plans," said the court. Moreover, Measure R "does not merely formalize any existing power of the electorate. It creates a new power —the requirement of a specific plan —and subjects it to voter approval. In this respect, Measure R limits [the City's] governing body from carrying out its duties pursuant to its police power," noted the court. Further, the court found Measure R withdraws from the City Council "the ability to issue discretionary land use entitle- ments or permits concerning a development project —unless and until voters approve a specific plan for that project," which makes it a project -by -project review that would otherwise be subject to adminis- trative, not voter, approval. And, the court found that "Measure R not only withdraws administrative authority but it also adds `layers' to the administrative process," "invalidlyannul[ling] or delay[ing] executive P � L g] YL� g] or administrative conduct." With regard to Measure R's CUP requirements, the court found they were illegal. Under "well -established principles," a CUP "is administra- tive permission for uses not allowed as a matter of right in a zone, but subject to approval," explained the court. A CUP is not a personal inter- est and does not attach to the permittee, but rather creates a right that runs with the land. Conversely, a condition which relates solely to the individual or applicant for the CUP does not relate to the property's use and zoning, said the court. Here, the court found that Measure R CUPs were establishment- © 2017 Thomson Reuters 7