Local initiative right still under legislative assault

Loren Kaye
President of the California Foundation for Commerce and Education

Earlier this year I wrote of an assault on local democracy in the guise of an Assembly measure intending to force citizens to run a gauntlet of local planners and environmental analysis prior to gathering signatures for local ballot measures.

In the intervening three months the measure has been overhauled several times, approved by the entire Assembly and now awaiting action in the State Senate. In its newest form the bill isn’t as bad as when it was first introduced.

It’s worse.

Struggling to find a way to limit citizen access to the local initiative process, proponents keep running into headwinds, also known as the California Constitution. For over a hundred years, city or county residents have drafted, collected signatures for, and ultimately placed on the ballot measures proposing to influence some aspect of the governance or character of their local communities.

Time and again California courts have stood up for the right of local voters to use the ballot initiative. The courts have consistently held that voters may not be deprived of their right to initiate ballot legislation on matters of local concern, and that state land use planning laws are local matters that can be addressed by local initiative.

What gripes the bill’s proponents is that measures presented directly to voters need not be subject to the onerous review and litigation risk inherent in the California Environmental Quality Act (CEQA). That same exemption from the CEQA gauntlet applies if the local governing body chooses to adopt the proposed ballot measure itself, rather than awaiting an election.

(Note that no matter if a land use proposal is adopted by the voters or a city council, and regardless of whether it undergoes a CEQA analysis, California’s comprehensive panoply of environmental laws – the air and water quality acts, endangered species and hazardous waste laws – all apply and dictate how to assess and mitigate the environmental impacts.)

The response from the unions and environmentalists supporting the bill is to simply ban all local pro-growth ballot initiatives (and only this category of initiatives) that aim to create more housing and mixed use development.

California’s housing crisis is on the front burner of every legislative party and faction. By one estimate, it’s producing a $140 billion annual drag on the state’s economy, and it is forcing Californians into long commutes that damage our health, infrastructure and environment. Housing is one of the reasons California suffers from the highest poverty rate of any state. Removing a democratic tool to address this crisis is nothing short of absurd.

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