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Letter From Our Attorneys To Town Coucil

Informs Town Council of Certain Problems in the Council-Sponsored Initiative


October 3, 2002

Mayor Bob Fenwick and Members of the City Council
Town of Los Altos Hills
Town Hall
26379 Fremont Road
Los Altos Hills, CA 94022

Re: City Council Sponsored Town-Owned Property Ballot Initiative

Dear Mayor Fenwick and Council members:

This firm represents Los Altos Hills Open Space ("LAHOS") on matters relating to the Town of Los Altos Hills’ ("Town’s") land use planning, and particularly its Town-owned open space and public recreation resources. LAHOS is a citizens group dedicated to the long-term protection of the Town’s outdoor recreational and open space areas as well as to the continued vitality of the Town’s native environment, social fabric, and quality of life.

As you know, LAHOS has spent the last several months drafting and amending an initiative measure designed to ensure the long-term preservation of certain Town-owned open space and recreational properties. LAHOS submitted its measure, the Los Altos Open Space and Public Recreation Initiative (LAHOS Initiative), to the City Clerk several days ago on October 1st 2002. The LAHOS Initiative would adopt more appropriate open space and public recreation General Plan designations over certain Town-owned lands and would require, with certain exceptions, that the Town-owned properties described in this Initiative shall not be conveyed, sold, or abandoned in whole or in part for any purpose except pursuant to a vote of the Town electorate.

The draft Council-sponsored property ballot measure ("Town Measure") "borrows" heavily from the early draft of the LAHOS Initiative submitted to the Town staff for its informal review, and appears intended to co-opt the issues of critical public importance that the members of LAHOS had so rightly identified. The Town Measure incorporates the same structure, same section headings, and most of the same language of the early LAHOS Initiative. Indeed, the Town Measure even borrows the identical phrasing of the early LAHOS Initiative in requiring a vote of the people before the specified Town-owned properties may be "sold, transferred, conveyed, or abandoned."

Unfortunately for the Town, however, the drafters of the Town Measure borrowed from an early draft of the LAHOS Initiative, and thus missed a variety of later-added provisions designed to increase both the legal protections and the flexibility of future Town planners. As a result, the Town Measure is simultaneously far less protective of the Town’s open space and public recreation resources than the final LAHOS Initiative and far more restrictive to future Town policymakers seeking to act in the public interest. The Town has hastily thrown together a measure that contains all the outward appearance of a protective and reasonable ordinance; unfortunately, the measure forgot to include much of the true substance of the final LAHOS Initiative.

1. The Town Measure Unnecessarily Limits the Ability of Future City Councils to Protect the Town’s Open Space Resources Through Conservation and Open Space Easements.

The September 27, 2002 Interoffice Memorandum prepared by the City Attorney for the Mayor and City Council’s consideration articulates a number of advantages of selling or conveying conservation or open space easements to the Peninsula Open Space Trust, the Midpeninsula Regional Open Space District, or another local land trust. The Memorandum properly notes, for example, that these easements may be perpetual in nature and can be tailored to specific property conditions including the need to maintain historic structures or preserve land in its natural state. The conveyance of conservation or open space easements would allow the Town to shift responsibility for the preservation of Town-owned open space parcels while ensuring, courtesy of a reversionary clause, that the parcels remain in the open space or other specific condition required by the easement.

Despite the clear advantages of conservation and open space easements, however, the Town Measure would flatly bar future Councils from conveying any such easement across any Town-owned land at any time without a vote of the people. The language of the Town Measure is absolutely clear—no Town-owned properties shall be sold, transferred, conveyed, or abandoned without prior approval of a majority of the voters at either a regular or special election. The Town Measure includes no exceptions and grants absolutely no flexibility to future City Councils or Town planners, even if these future policymakers wish to strengthen the protection of open space resources.

There is simply no reason to require future City Councils to call a potentially expensive special election whenever they wish to enact more lasting protections over open space parcels. For this reason, the final LAHOS Initiative includes a specific exception for the conveyance of an easement, leasehold, or other property interest for a use consistent with the property’s General Plan designation. This exception specifically allows for a future conservation easement across Byrne Preserve, Juan Prado Mesa Preserve, or any other specified Town-owned properties. The Town Measure fails to include this obvious exception, and is thus far less protective of Town-owned open space than the LAHOS Initiative.

In addition, the failure to include any exception to the requirement of prior voter approval of any conveyance of Town-owned property will severely undermine the Town’s ability to grant routine and non-obtrusive easements for public utilities, mitigation projects, or other actions that the vast majority of the Town would undoubtedly support. Again, the LAHOS Initiative exempts exactly these types of activities, so long as they are consistent with the property’s General Plan designation and thus would not impact the core environmental and open space values of the specific property. The Town Measure, by contrast, includes no exception for any use, and thus creates an unnecessary and unreasonable hurdle for future City Councils. The present City Council would be well-suited to apply a little more thought and deliberation to this hasty and ill-suited measure.

2. The Town Measure Takes a Step Backward by Locking in Inappropriate General Plan Designations Over Town-Owned Open Space Properties.

The LAHOS Initiative, if adopted, would not only readopt appropriate General Plan designations over Byrne Preserve, the Little League Fields on Purissima Road, and other properties (thus requiring a vote of the people before these designations could be amended), but also would redesignate certain other properties to more appropriately match existing conditions. The Juan Prado Mesa Preserve, for example, is currently designated and zoned for residential development even though the property is—and should be—in open space. The LAHOS Initiative would redesignate the Preserve and other properties like it to a more appropriate General Plan designation, such as Open Space Preserve. The LAHOS Initiative would also require the Town to amend its Zoning Code in accordance with this new designation—to zone the Preserve for open space rather than residential uses. See Section 5(C) of the LAHOS Initiative.

The Town Measure includes no such redesignations and is thus far less protective of open space and public recreation properties than is the LAHOS Initiative. With regard to Juan Prado Mesa Preserve, for example, the Town Measure would retain the property’s existing residential General Plan designation and its residential-agricultural zoning. As a result, under these designations, the Juan Prado Mesa Preserve could be converted from open space to a developed parcel complete with residential, institutional, and infrastructure facilities. The Town Measure then goes further—it actually locks in these improper designations by requiring a vote of the people to change them. The Town would actually be forced to hold an election before it could limit Juan Prado Mesa Preserve to the kind of open space uses that currently exist and that the vast majority of the Town supports at the property.

The Town Measure’s failure to alter any existing General Plan or zoning designation thus represents a major step backward for the large subset of Town-owned properties currently saddled with an inappropriate General Plan designation, an inappropriate zoning designation, or, for properties like Juan Prado Mesa Preserve, both. In addition to the Preserve, these properties include:

  • The Rhus Ridge Properties. These open space properties are currently designated for residential development in the General Plan. The LAHOS Initiative would have properly redesignated these properties to Open Space Preserve to protect their open space values. The Town Measure, by contrast, would lock in the inappropriate residential designation and require a vote of the people to change it.
  • Edith Park. This open space and recreational parcel is similarly currently designated and zoned for residential development, even though home construction would clearly be inappropriate at a public park. The LAHOS Initiative would redesignate Edith Park for public recreation; the Town Measure would lock in the inappropriate residential designation and zoning and require a vote of the people to change either.
  • Murietta Ridge. This open space parcel should be designated and zoned as open space, as the LAHOS Initiative would require. The Town Measure, by contrast, would lock in the property’s nonsensical private recreation designation and highly inappropriate residential-agricultural zoning and require a vote of the people to change either.
  • Westwind Community Barn. The LAHOS Initiative would redesignate this property from private to public recreation to reflect the fact that the community barn is, in fact, open to the community. The Town Measure would lock in the incorrect private recreation designation and require a vote of the people to change it.
Nor can Town residents be comforted by the fact that some of these parcels feature open space conservation area overlays or appropriate zoning classifications despite their inappropriate General Plan designations. The open space conservation overlays cover only some parts of each property, and only prevent development in creek beds, on steep slopes, and in other places that are already highly undesirable for residential construction. Similarly, as discussed below, a property’s zoning category is subordinate to its General Plan designation; an inappropriate General Plan designation, such as those described above, controls the future use of the property regardless of the current zoning.

3. The Town Measure’s Failure to Amend the General Plan Renders It Invalid Under State Law.

Central to the Town Measure is its requirement that the General Plan designations of Town-owned properties not be amended except by a vote of the people. Curiously, despite the fact that the measure would thus restrict all future amendments to these General Plan designations, the proposed measure does not actually amend the General Plan. Instead, it amends the Town’s Municipal Code to include the new requirement. By contrast, the LAHOS Initiative clarifies that it is a General Plan amendment: indeed, it readopts certain existing Plan designations and amends other designations where appropriate.

The Town’s approach in presenting its enactment as a Municipal Code amendment rather than a General Plan amendment contravenes established Supreme Court precedent. In the landmark case Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, the Supreme Court invalidated the City of Walnut Creek’s "Traffic Control Ordinance," an initiative measure that implicated provisions of the City’s general plan yet failed to amend the plan. The Court reasoned that the general plan, as the city’s land use "constitution," stands atop the hierarchy of land use laws, and that subordinate ordinances affecting land use must conform to the plan. Id. at 540-41 ("The tail does not wag the dog. The general plan is the charter to which the ordinance must conform.") Because Walnut Creek’s initiative ordinance did not amend the general plan yet affected its terms, the Court held that it was "invalid at the time it was passed." Id. at 544.

Since the Court’s decision in Lesher, leading land use treatises have cautioned initiative proponents to amend the jurisdiction’s general plan when adopting measures that implicate the plan’s policies. See, e.g., Matthew Bender, California Environmental Law and Land Use Practice, Sec. 75.10[3][c] at p. 75-66 ("The primary consideration in [drafting the measure] is selecting the policy document (or documents) to be adopted or amended to achieve the measure’s intended purpose. This document will typically include one or more elements of the general plan, and possibly the zoning ordinance.") The proposed Town Measure departs from this accepted approach. Because the measure would amend the Town’s Municipal Code rather than the General Plan, it suffers from the same legal infirmity that resulted in the invalidation of the measure at issue in Lesher. The Town Council should decline to sponsor a measure that would open the Town up to a legal challenge based on this plain deficiency.

4. Conclusion

For the foregoing reasons, we respectfully urge the Council not to place the proposed Town Measure on the ballot: it provides inadequate protection of Town-owned open space lands, unduly restricts future Councils’ control over the sale of these lands, and fails to amend the Town land use document most clearly affected.

Very truly yours,

SHUTE, MIHALY & WEINBERGER LLP
RACHEL B. HOOPER


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