An appellate court has blocked a proposed Santa Barbara housing subdivision because the city did not receive of voter approval of an access road and bridge on city-owned open space land, as required by a 1982 initiative. 

In the 100 years since the initiative and referendum powers have become part of the local land use planning and development legal framework, voters have used these populist elements of democracy to shape growth. The case from the City of Santa Barbara illustrates a variation on the intersection of planning and voter control. 

In 1982, Santa Barbara voters amended the city charter by restricting the ability of the city of transfer or encumber land "dedicated to public park or recreation purposes" without voter approval. This charter amendment allowed the City Council to grant by contract only concessions, permits or leases "compatible with and accessory to the purposes for which the property is devoted." 

In 2005, the city approved a 25-lot development on a 50.5-acre site off Las Positas Road in an unincorporated area the city would annex. Access to the project, proposed by Peak-Las Positas Partners, would necessitate construction of a bridge across city-owned open space and Arroyo Burro Creek. The 2005 approval generated a successful California Environmental Quality Act (CEQA) legal challenge of the environmental impact report (EIR).

In 2008, the city approved a revised EIR, providing that access to 22 of the 25 residential units would be via the new bridge spanning Arroyo Burro Creek. The bridge and road would occupy 5.89 acres of a much larger city-owned open space parcel. At the time of the 2008 project approval, the City Council adopted findings establishing the city's basis for not submitting the matter to the voters. These findings pertained to compatibility of the bridge and the underlying park land, explaining that the bridge would be dedicated for public use, that there would be improved public access to area parks and beaches, and that the bridge and road use would be accessory and minor in relation to the underlying open space parcel.

Based upon the City Council's approved findings, the use of the open space land for the bridge was not submitted to the voters. The groups Citizens Planning Association and Santa Barbara Urban Creeks Council filed suit once again, alleging both CEQA and city charter violations. Santa Barbara County Superior Court Judge Thomas Anderle rejected the CEQA arguments, but he granted relief to the project opponents on the basis that voter approval was required.

A unanimous three-judge panel of the Second District Court of Appeal agreed with the trial court. Noting that the findings were simply conclusory statements prepared by staff, and that there had been no evidentiary hearing on those issues, the appellate court had little difficultly rejecting the findings of the City Council. The appellate court's view of the evidence was that the land had been dedicated for open space and/or creek restoration purposes and not for the purpose of developing a roadway. Accordingly, the construction of a road and bridge on that property was not compatible with and could not be viewed as "accessory." Bottom line: voter approval required.

"The clear purpose of this provision [the 1982 initiative] is to prevent parkland from being destroyed or given to private parties without voters' consent," Justice Paul Coffee wrote for the court. "Here, the result urged by Las Positas [Partners] would circumvent the wishes of the electorate by giving city-owned land to a private developer without a vote of the people."

The developer also argued was that the earlier litigation resolved all legal claims and, because the issue of voter approval had not been raised then, the issue could not be litigated in the second legal proceeding. The appellate court rejected this argument too. As the City Council had made no findings in 2005 regarding the compatibility of the road and bridge with the open space lands, the issue could not have been litigated in the first lawsuit, the court ruled. Accordingly, the issue was properly raised in the second lawsuit.

The Case: 

Citizens Planning Association v. City of Santa Barbara, No. B216006, 2011 DJDAR 1340. Filed January 25, 2011.

The Lawyers:

For Citizens Planning Association: William P. Parkin, Wittwer, & Parkin, (831) 429-4055.

For developer Peak-Las Positas Partners: Timothy Metzinger, Price, Postel & Parma, (805) 962-0011.