Cynthia P. Coad, Chair
Board of Supervisors
County of Orange
10 Civic Center Plaza

Santa Ana, California 92701
 

Re: Proposed Measure B for November 5, 2002, General Election; Item 56 on Agenda for Board of Supervisors Meeting of August 6, 2002

Dear Supervisor Coad:

The undersigned serves as General Counsel to the El Toro Reuse Planning Authority ("ETRPA"). ETRPA has briefly reviewed the proposed ballot measure. The measure purports to make any General Plan amendment, Specific Plan enactment or amendment, or Zoning enactment, amendment or change that is applicable to the part of former MCAS El Toro that is located in unincorporated Orange County subject to approval by the voters of the entire County. As can be seen from the brief agenda report, this measure is directed at the annexation of El Toro to the City of Irvine and the adoption of land use for that property by the City of Irvine. ETRPA finds that the proposed measure, if enacted, would be invalid and unenforceable, and, therefore, it should not be placed on the ballot for the November 5, 2002, General Election.

1. Neither the board of supervisors nor the voters of a county have jurisdiction over the land use for area located within a city in the county. There is no authority for either the board of supervisors or the voters of the entire county to adopt an ordinance that would give the county voters such authority. California Constitution, Article XI, Section 7 gives cities the authority to make laws, including land use designations and regulations, for the area included in their boundaries. (Candid Enterprises, Inc. v. Grossmont Union High School District (1985) 39 Cal.3d 878.) Police powers given to a county and to a city by the Constitution may be exercised by each governmental unit only within its respective territorial jurisdiction. (City of South San Francisco v. Berry (1953) 120 Cal.App.2d 252.) County ordinances, including land use regulations, are not applicable to area within the territorial limits of a city.

2. The author of the agenda report apparently recognizes that the County voters have no authority to adopt an ordinance making the land use of property within a city subject to approval by a vote of the entire County. This is reflected in the third recommended action, which is the direction to the County Executive Officer and the County's Sacramento representative "to secure legislation that supports" the proposed ordinance. If there was authority for the voters to adopt such an ordinance, there would be no need to seek State legislation.

Even if the County were able to obtain the enactment of legislation that purportedly gives voters of a county approval over the land use in an incorporated area, that legislation would be invalid. It would be contrary to the provisions of the California Constitution, including Article XI, Section 7, giving cities jurisdiction over the land use of areas within their boundaries.

3. The proposed measure is a de facto attempt to prevent the annexation of El Toro to the City of Irvine by making the City's preannexation land use subject to approval by the voters at a county-wide election. The courts have held that the State Legislature has preempted the field of annexations to cities and, because of such preemption, local regulations designed to effect annexations are invalid. (L.I.F.E. Committee v. City of Lodi (1989) 213 Cal.App.3d 1139; Ferrini v. City of San Luis Obispo (1983) 150 Cal.App.3d 239.) In the L.I.F.E. Committee case, the Court invalidated a scheme which was similar to the proposed Measure B. That scheme sought to make voter approval of a proposed general plan amendment for an area proposed for annexation a condition of approval of the annexation. The Court held that making preannexation land use subject to voter approval was not any different than making the actual annexation subject to voter approval and was, therefore, invalid since this area was preempted by the State.

4. The proposed measure would be clearly subject to a pre-election lawsuit to keep it off the ballot. It is clear that at this time there is no constitutional or statutory authority allowing the voters to adopt such a measure and no such authority would exist at the time of the November 5, 2002, General Election. The possibility that legislation may be enacted in the future to make a proposed invalid ballot measure valid simply highlights and proves the fact that the measure is invalid. Such possible legislation provides no defense to a lawsuit challenging the validity of the measure.

ETRPA requests that the Board of Supervisors not submit Supervisor Smith's proposed Measure B to the voters at the November 5, 2002, General Election.