COMMENTARY : Citizen Initiative Is an Important, but Often Misused, Tool

Citizens are increasingly exercising their power to write and pass laws restricting growth and development, and the slow-growth movement in San Diego is likely to accelerate this trend. Rightly or wrongly, citizen groups often perceive the traditional legislative process as a ratchet that moves only in one direction--toward more development. From this viewpoint, slow-growth initiatives are seen as a political counterbalance to the economic forces that influence local government.

But the implications of this phenomenon should not go unnoticed.

On the plus side, the process of gathering signatures and conducting an initiative campaign can focus the public’s attention on important land-use issues. Initiative campaigns can make elected lawmakers aware of constituents’ views.

Citizen-sponsored ballot measures are also a valuable mechanism for getting back to basic choices. The normal process of land-use decision making is protracted and complex. Consequently, the general public may not be aware of the impact of a project or plan until it is in the final stages. At this point, commitments and decisions may have been made that are difficult to reverse legislatively. A good example in this year’s election was Proposition G, which was a response to the City Council’s decision to allow the demolition of the Plunge building in Mission Beach Park. Public debate on the issue was inconsequential and insufficient until the initiative surfaced.

In addition, a citizens’ group that is impatient or disagrees with the City Council or Board of Supervisors can turn to the ballot box as the avenue of last resort. This action is appropriate and consistent with the concept of direct democracy.

Both the California Constitution and the San Diego City Charter protect the citizen’s right to petition the electorate through the initiative, and the courts have rigorously guarded this right.

However, notwithstanding the benefits and the protected legal status of the initiative process, frequent use of ballot measures to accomplish most land-use aims is unwise and inappropriate in a system of representative government.

The preferable approach, one more consistent with principles of representative government, is to replace or remove those elected officials whose land-use views regularly conflict with the expectations of the electorate. Our City Council members and county supervisors are elected to make most of the decisions on land-use policy. This is appropriate, because land-use decisions are increasingly complex: they include matters on land protection and development, the adequate provision of clean air, uncontaminated water, sufficient sewage treatment and transportation methods, and other basic public services. Our form of government, which citizens expect to provide sound solutions to complex problems, functions on the basis of public debate and compromise.

Initiatives frequently promise solutions to these complicated land-use issues.

Oftentimes they do so, however, without extensive legislative debate and compromise, a process that refines the proposed law. For example, the limits on building permits that were established by San Diego’s Interim Development Ordinance were developed after public debate among council members, developers, citizens opposing growth and others with an in the interest in the process. In the wake of the IDO, petitions for two initiative proposals are being circulated that would restrict growth further. The limits on building permits contained in those proposals, however, were derived privately, rather than publicly.

The public debate accompanying an initiative most often occurs after it qualifies for the ballot. Such public debate is calculated to either prompt its passage or assure its defeat, and not affect its content or design. Often it includes a barrage of carefully structured statements and slogans designed to strike responsive chords with voters. The publicity surrounding Proposition F, a measure that irrevocably restored the name Market Street to Dr. Martin Luther King Jr. Way, is recent testimony to this point.

Few initiative sponsors have the financial resources to do the extensive preparatory work and careful initiative drafting that can be done by legislative staffs and is essential to the protection of the public’s interest.

As a result, citizen initiatives run the risk of creating acute problems through poor drafting.

Increased litigation on the validity of citizen initiatives regulating growth and development is predictable because the economic stakes are substantial. Even when growth initiatives are carefully drafted, they inevitably raise a number of federal constitutional issues. These include, for example, prohibitions against unreasonable regulations, the need to provide due process, and the provision of equal protection to affected parties.

Potential conflicts with state law also exist. Under state law, local government is required to consider the effect of growth controls on area-wide housing needs and to balance those needs against the public service, fiscal and environmental needs of its residents. It is difficult to sensibly apply this balancing requirement to the initiative process.

Initiative sponsors must also be able to show that their measure does not deprive a developer or property owner of “vested rights.” This is likely to be the next battleground for ballot-box land-use policies. California law was recently amended to provide for vesting of development rights in approved tentative subdivision maps. When the vesting map is approved, it guarantees a developer the right to proceed with development for a period of up to 10 years. The extent to which local law can contradict this state law is not certain. What is clear, however, is that slow-growth initiatives are likely to conflict with the vesting rights law, and that this conflict will have to be resolved by the courts.

Unless an initiative contains explicit provisions for amendment or an expiration date, an initiative passed by the electorate can only be changed by another plebiscite. As a result, most initiatives tend to introduce a set of rigid or inflexible land-use policies that are difficult to change to accommodate new circumstances.

Notwithstanding the acknowledged difficulties associated with land-use control through the ballot box, citizen initiatives have emerged as an important mechanism for allowing greater citizen participation in planning and use of land and other limited community assets. There are important legal and policy obstacles that confront citizens wanting to use the plebiscite process. The broader challenge is to find appropriate ways to use the initiative process to improve active citizen participation in local government decision making without compromising our system of representative government.