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Insight: 100 Years After Introduction of Voter Initiatives, ‘Ballot-Box Zoning' Prevails

This month – October 10, to be exact – marks the 100th anniversary of initiative and referendum in California. It's hard to imagine that Gov. Hiram Johnson, the godfather of the constitutional amendment, could have imagined all the different ways that the initiative process would be used – especially by the moneyed interests that were his target in 1911. But it's equally hard to imagine that Johnson could have foreseen the way the initiative and referendum process would transform planning and development in California.

The bottom line is pretty stark: Almost everywhere in the nation, "ballot-box zoning" is non-existent, but in California it is common. This divergence occurred over a period of many decades and several milestone court cases. The result is that even in places where land use initiatives are rare, the threat of the ballot changes the political equation for development. 

Whether the prevalence of ballot-box zoning is a good thing or a bad thing depends on your point of view, but one thing is for sure: In the arena of local government – unlike at the statewide level – grassroots efforts usually prevail over the moneyed interests. In some cases this has forced innovative change, but in many other cases is has cemented the status quo and created a barrier to change of virtually any kind.

It's clear that Johnson and the other California Progressives who pushed the idea of direct democracy didn't think much about its use on local ballots. They were focused on breaking the power that the Southern Pacific Railroad had over the Legislature. In fact, initiative and referendum powers were rarely used on the local level – until communities around the state began to resist growth in the 1970s.

At that time, initiatives that amounted to ballot-box zoning were rare and it was unclear whether they passed legal muster. Initiatives and referenda apply to legislative actions only, not quasi-judicial actions. Many planning decisions fall into the latter category – variances, conditional use permits, and the like. The big legal question was whether a zone change was a legislative act. In 1980, the California Supreme Court concluded that the answer to this question is yes: Since zoning must conform to the General Plan, a zone change is therefore a legislative act. (Arnel Development Company v. City of Costa Mesa, 28 Cal. 3d 511 (1980))

The Arnel ruling opened the floodgates for ballot-box zoning in California, which really took off during the real estate boom years of the 1980s. According to an analysis [pdf] we at CP&DR did about a decade ago, there were 600 land use-related ballot measures on local ballots over the next 15 years. 

The result has been voter-imposed restrictions on development of all shapes and sizes: height, density, number of residential units per year, outward urban expansion. Interestingly, as our analysis concluded, the types of legislation being enacted by the voters were no different than the types of legislation being enacted by elected officials. The only difference was that because they were enacted by the voters they could only be changed by the voters – and in many cases they explicitly required subsequent voter approval on specific types of land use changes.

The most famous of these "subsequent voter approval" initiatives are the SOAR initiatives passed in Ventura County between 1995 and 2000 (see CP&DR blog Dec. 2000). Encouraged by the Supreme Court's decision to uphold Napa County's initiative requiring voter approval to change the zoning of any piece of agricultural land, SOAR established urban growth boundaries, which have changed little since the initiatives were passed. In most Ventura County cities the boundaries encompassed enough land to accommodate suburban-style growth, though such land will clearly become scarce once the real estate market booms again. (The city with the tightest growth boundary is – yes, you guessed it, Ventura.)

Has SOAR been a good thing for Ventura County? On the one hand, it has constrained outward urban expansion, protected agricultural land, and forced infill development. On the other hand, it has – well, it's done all the same things, possibly increasing housing costs along the way. SOAR has also caused agricultural landowners in Ventura County to change their practices. They are moving aggressively toward higher-value crops (meaning a reduction in scenic orchards) and greenhouses. So the landscape has changed – just in different ways than the initiative's drafters expected.

The use of ballot-box zoning has not been evenly spread across the state. Overall, it reflects the deep cleavage between the coastal and inland parts of the state. Ballot-box zoning is common in coastal communities – even in historically development-friendly Orange County – and rare in the Inland Empire and the Central Valley. (The exceptions would be college towns like Davis and affluent suburbs near struggling central cities, like Redlands near San Bernardino and Lodi near Stockton.) Traditionally, it's been most politically successful at the city level – especially smaller cities – where footpower counts the most. Grassroots citizen groups have often gained a political foothold through ballot initiatives, and their leaders have often gone on to become elected officials. Ballot-box zoning has generally done poorly in large county elections, where a big-money campaign by developers can overpower a grassroots campaign.

In all the years that former editor Paul Shigley and I tracked ballot-box zoning on these pages, the conclusion we most often came to was mixed bag. It was always hard to know what political events would trigger the nuclear explosion of a ballot measure and harder still to know the effects. Indeed, John Landis, formerly a planning professor at UC Berkeley (now at Penn), once conducted a major research project and came to the conclusion that both the political forces and the policy outcomes were not that different in communities that had imposed growth control via initiative and those that had done so through conventional processes. 

Still, I think the impact in many individual communities has been profound – and not always good. A number of cities that adopted restrictive ballot measures in the 1970s, for example, have never gone back and changed the restrictions. For example, Alameda – an island near Oakland in the San Francisco Bay – banned apartments via initiative in the 1970s and banned densities higher than 21 units per acre in 1991. An attempt by SunCal to override the ballot measure to accommodate a large project reusing an old Navy Base was crushed in 2010 by an 85-15 vote (see CP&DR Vol. 25, No. 3 Feb. 2010). 

Whether you liked the SunCal project or not, you have to admit that Alameda has protected something and sacrificed something by adhering to its ballot measures for the past 40 years. Alameda today is a lovely, isolated, and relatively low-density community, featuring mostly single-family houses and older (and not very attractive) apartment buildings. The ban on multi-family development has not, of course, led to the razing or redevelopment of the apartments that nobody likes, and it has prevented construction of the attractive mixed-use projects that have characterized the Bay Area.

Similarly, ballot-box zoning in California has protected some things and sacrificed others. It's often protected a particular scale and type of development – usually older, lower-density, suburban style development. Yet it's often prevented the construction of new, often high-quality development for which there's market demand. After a quarter-century of watching this stuff, my conclusion is that ballot-box zoning in California is still a mixed bag – and a crapshoot.

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