HomeMy WebLinkAbout06/30/1992, 2 - REFERENDUM ON STATE WATER PROJECT ►�IIIII�Pjlyy�ll city of san L AIS o8ispo MEETJNGB/�IF2
ITEMnN//U..iiMB//E`yJR:
COUNCIL AGENDA REPORT
FROM: P s, City Clerk
SUBJECT: Referendum on State Water Project
CAO RECOMMENDATION:
Receive and file Certificate of Sufficiency regarding State Water Project and determine
whether to place Referendum on the November 3, 1992 ballot.
BACKGROUND:
On April 21, 1992, the City Council took action to adopt Resolution No. 8001. This
resolution authorized the Mayor to execute the Water Supply Agreement (A-36-92-CC) and
Water Treatment and Local Facilities Agreement (A-37-92-CC) for participation in the
State Water Project.
As provided by Elections Code Section 4051 et seq., a referendum may be filed within 30
days of the adoption of an ordinance otherwise subject to the referendum power. On May
21, 1992, the proponents of the referendum submitted a petition with the City Clerk to refer
Resolution No. 8001. The referendum contained more than the required 2,268 signatures
or 10% of the voters of the City of San Luis Obispo according to the last official report of
registration to the Secretary of State, effective 5/4/92 recording a total of 22,678 registered
voters. The City Clerk examined the petition and determined it to be sufficient. As
required by Elections Code 3707 and 3708, a Certificate of Sufficiency was certified and the
results are being submitted to the City Council by way of this report (Exhibit A). If the
Council orders this be placed on the November ballot, it would adopt a resolution (Exhibit
B) to that effect. The Utilities Director and City Attorney have analyzed the operational
and legal issues involved with the referendum and their separate reports are attached.
State law requires that a referendum petition qualifying with 10% of the required number
of voters of the City must be submitted to the next Regular Municipal Election (November
3) 1992) unless, for any reason, the Council chooses to submit it at a Special Municipal
Election sooner, or repeal the resolution against which the petition is filed.
If the referendum is denied by the voters, the resolution shall take effect immediately. If
the referendum is passed by the voters, the resolution shall not become effective, and may
not again be enacted by the Council for a period of one year.
I
�ui�►�i►i��illllllll►' 1���I11 MY Of San L,,-4#S OBISPO
ONGs COUNCIL AGENDA REPORT
ALTERNATIVES:
1. Repeal Resolution No. 8001 against which the petition is filed.
2. Receive and file Certificate of Sufficiency. Adopt resolution placing the Referendum
at the November 3, 1992 ballot.
3. Receive and file Certificate of Sufficiency. Order a special election to be held
between 88 and 103 days (September 14 through October 13) from date resolution is
adopted placing the Referendum on the ballot. Direct staff to prepare necessary
resolutions for Council adoption.
FISCAL IMPACT:
$25,000 is budgeted to conduct the November, 1992 election for the Mayor and two
Councilmember seats. The adding of a ballot measure will cost between $2500-3,000.
Consolidation with the County will reduce the city's contract price with the County by
approximately $10,000. Several factors will influence the cost of the General Municipal
Election including:
1. Additional measures, initiatives, referendums, and propositions placed on the ballot
by the City of San Luis Obispo or any federal, state, county, city, school or special
district.
2. Number of candidates filing for elected office.
ATTACHMENTS:
Certificate of Sufficiency (Exhibit A)
Draft resolution placing State Water issue on ballot (Exhibit B)
Memorandum from Utilities Director
Memorandum from City Attorney (to be distributed under separate cover)
J-c;2
EXHIBIT "All
CERTIFICATE OF SUFFICIENCY
I, Pam Voges, City Clerk of the City of San Luis Obispo, California, hereby certify
that I have carefully checked the names on a referendum petition filed in my office on May
21, 1992, reading in full as follows:
"REFERENDUM AGAINST A RESOLUTION PASSED BY THE SAN LUIS
OBISPO CITY COUNCIL.
TO THE SAN LUIS OBISPO CITY COUNCIL:
Pursuant to California Elections Code Section 4051, we, the undersigned, not less
than ten percent of the number of registered qualified voters in the City of San Luis Obispo
according to the County Clerk's last official report of registration, hereby present this
petition protesting your adoption on April 21, 1992, of Resolution No. 8001. We request
that the resolution be entirely repealed by you, or be submitted to a vote of the people at
the next regular or special election for which it qualifies. The full text of the Resolution
is as follows:
Resolution No. 8001 (1992 Series). A RESOLUTION OF THE SAN LUIS OBISPO
CITY COUNCIL AUTHORIZING THE EXECUTION AND DELIVERY OF A WATER
SUPPLY AGREEMENT AND A WATER TREATMENT AND LOCAL FACILITIES
AGREEMENT AND AUTHORIZING CERTAIN OTHER ACTIONS
WHEREAS, the City of San Luis Obispo is a Charter City duly organized and
existing under the Constitution and laws of the State of California:
WHEREAS, pursuant to the Ralph M. Brown Act constituting Chapter 9 of Part 1
of Division 2 of Title 5 (commencing with Section 54950) of the California Government
Code this meeting was duly noticed;
WHEREAS, the City of San Luis Obispo intends to enter into a water supply
agreement (the "Water Supply Agreement") with the San Luis Obispo County Flood Control
and Water Conservation District (the 'District") and a water treatment and local facilities
agreement (the "Water Treatment and Local Facilities Agreement") with the District.
WHEREAS, a Final Environmental Impact Report, "State Water Project, Coastal
Branch, Phase II, and Mission Hills Extension" (Coastal Branch EIR) has been certified by
the State of California, Department of Water Resources, and all requirements of the
California Environmental Quality Act ("CEQA") have been satisfied by the Coastal Branch
EIR; and,
WHEREAS, the City Council has made certain environmental evaluations, findings,
determinations, and a statement of overriding considerations, for City participation in the
State Water Project; and
WHEREAS, Preliminary Design and,a Final Environmental Impact Report, "State
Water Project Coastal Branch (Phase II) Local Distribution Lines and Facilities"(SLO EIR)
has been completed and certified by the District and all requirements of CEQA have been
a3
satisfied relating to the construction of the local distribution lines and facilities described
in the SLO EIR; and,
WHEREAS, it is the desire of the City of San Luis Obispo as a responsible agency
to approve those portions of said local distribution lines and facilities which lie within the
City's jurisdiction.
NOW, THEREFORE, BE IT RESOLVED AS FOLLOWS:
Section 1. Declaration of City Council. This City Council hereby specifically finds
and declares that the actions authorized hereby constitute and are with respect to public
affairs of the City, and that the statements, findings and determinations of the City set forth
in the preambles above and of the documents approved herein are true and correct.
Section 2. Water Supply Agreement. The form of Water Supply Agreement,
presented to this meeting and on file with the City Clerk is hereby approved. The Mayor
and the City Clerk are each hereby authorized and directed to execute, acknowledge and
deliver said Water Supply Agreement in substantially said form, with such changes therein
as the City of San Luis Obispo may require or approve, such approval to be conclusively
evidenced by the execution and delivery thereof.
Section 3. Water Treatment and Local Facilities Agreement. The form of Water
Treatment and Local Facilities Agreement, dated as of March 1, 1992, presented to this
meeting and on file with the City Clerk is hereby approved. The Mayor and the City Clerk
are each hereby authorized and directed to execute, acknowledge and deliver said Water
Treatment Agreement in substantially said form, with such changes therein as the City of
San Luis Obispo may require or approve, such approval to be conclusively evidenced by the
execution and delivery thereof.
Section 4. CEOA Compliance. The City Council hereby adopts and approves the
certified Coastal Branch EIR and the certified SLO EIR and certifies that is has considered
the Coastal Branch EIR and SLO EIR and the environmental effects of the facilities
described therein, in reaching its conclusion to approve those portions of said local
distribution lines and facilities which lie within the City's jurisdiction and in making its
decision to enter into the Water Supply Agreement and Water Treatment Agreement
described in this Resolution. The City Council hereby adopts as being true and correct the
Findings, Conditions, and Statement of Overriding Considerations previously adopted and
incorporates the same by reference herein.
Section 5. Further Actions. The .Mayor and City Administrator are hereby
authorized to do any and all things, to execute and deliver any and all documents, which
they may deem necessary or advisable in order to give effect to and comply with the terms
and intent of this resolution, the Water Supply Agreement, the Water Treatment
Agreement and the SLO EIR and the Coastal Branch EIR.
Section 6. Effective Date. This resolution shall take effect immediately upon its
passage.
On motion of Councilman Reiss, seconded by Councilwoman Rappa, the foregoing
was PASSED AND ADOPTED this 21st day of April 1992, by the following vote:
AYES: Councilmembers Reiss, Rappa, and Mayor Dunin
NOES: Councilmembers Pinard and Roalman
ABSENT: None
/s/ Mayor Ron Dunin
Attest:
/s/ Pam Voges, City Clerk
APPROVED:
/s/ John Dunn, City Administrative Officer
/s/ Jeffrey G. Jorgensen, City Attorney
/s/ William T. Hetland, Utilities Director
The signatures found on the petition were compared to the signatures of the Affidavit of
Registration in the Registrar of Voters Office. Pursuant to Section 4011 of the California
Elections Code, the petitions were found to contain the signatures of more than 10% of the
voters of the City of San Luis Obispo according to the County Clerk's official report of
registration to the Secretary of State effective May 4, 1992, recording a total of 22,678.
DA PAM QGES,.CITY ERK
RESOLUTION NO. (1992 Series)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
SAN LUIS OBISPO, CALIFORNIA, CALLING AND GIVING
NOTICE OF THE HOLDING OF A GENERAL MUNICIPAL ELECTION
ON TUESDAY, NOVEMBER 3, 1992, FOR THE SUBMISSION OF A
BALLOT MEASURE TO THE ELECTORATE CONCERNING THE
STATE WATER PROJECT
WHEREAS, the City Council of the City of San Luis Obispo adopted Resolution No.
8001 authorizing the execution and delivery of a Water Supply Agreement and a Water
Treatment Agreement and a Water Treatment and Local Facilities Agreement and
authorizing certain other actions concerning the State Water Project; and
WHEREAS, the meeting was noticed as required by law; and
WHEREAS, pursuant to authority provided by Division 5, Chapter 3, Article 2
(commencing at Section 4050) of the Election Code of the State of California, a petition
has been filed with the legislative body of the City of San Luis Obispo signed by more than
ten percent of the registered voters of the city to repeal the resolution or submit it to a vote
of the electorate; and
WHEREAS, there is uncertainty whether Resolution 8001 is a valid subject of a
referendum, to the extent that authorizing the execution and delivery of a Water Supply
Agreement and a Water Treatment and Local Facilities Agreement and authorizing certain
other actions may be administrative acts;
WHEREAS, even if Resolution 8001 is not a valid subject of a referendum,
Elections Code Section 4051 et. seq., (and interpreting case law) appears to require that the
petition be placed on the ballot unless the City is directed to do otherwise by a court upon
a determination that the resolution is not a valid subject of a referendum;
WHEREAS,the City Clerk examined the records of registration and ascertained that
the petition is signed by the requisite number of voters, and has so certified; and
WHEREAS, the City Council has not voted in favor of the repeal of the resolution;
and
WHEREAS, the City Council is authorized and directed by statute to submit the
resolution to the voters;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN LUIS
OBISPO, CALIFORNIA, DOES RESOLVE, DECLARE, DETERMINE AND ORDER
AS FOLLOWS:
SECTION 1. That pursuant to the requirements of the laws of the .State of
California relating to charter cities, there is called and ordered to be held in the City of San
Luis Obispo, California, on Tuesday, November 3, 1992, a General Municipal Election for
the purpose of submitting the following resolution:
,f
Resolution No. (1992 Series)
Page Two
Shall Resolution 8001 authorizing the execution
and delivery of a Water Supply Agreement and
Water Treatment and Local Facilities Agreement YES
and authorizing certain other actions for NO
participation in the State Water Project
be repealed?
SECTION 2. That the text of the resolution submitted to the voters is attached as
Exhibit A.
SECTION 3. That the ballots to be used at the election shall be in form and
content as required by law.
SECTION 4. That the City Clerk is authorized, instructed and directed to procure
and furnish any and all official ballots, notices, printed matter and all supplies, equipment
and paraphernalia that may be necessary in order to properly and lawfully conduct the
election.
SECTION 5. That the polls shall be open at seven o'clock a.m. of the day of the
election and shall remain open continuously from that time until eight o'clock p.m of the
same day when the polls shall be closed, except as provided in Section 14301 of the
Elections Code of the State of California.
SECTION 6. That in all particulars not recited in this resolution, the election shall
be held and conducted as provided by law for holding municipal elections.
SECTION 7. That notice of the time and place of holding the election is given and
the City Clerk is authorized, instructed and directed to give further or additional notice of
the election, in time, form and manner as required by law.
SECTION 8. That the City Clerk shall certify to the passage and adoption of this
resolution and enter it into the book of resolutions.
On motion of ,seconded by and
on the following roll call vote:
AYES:
NOES:
ABSENT:
the foregoing Resolution was passed and adopted this day of , 1992.
ATTEST:
Mayor Ron Dunin
City Clerk Pam Voges
(SEAL)
APPROVED:
City Administrative Officer
tto ey
Ci Clerk.
MEMORANDUM
June 16, 1992
TO: City Council
VIA: John Dunn, City Administrative Officer
FROM: William T. Hetland, Director of Utilities
SUBJECT: Referendum on State Water Project
The City Council adopted a resolution which authorized the execution of agreements
which allows the City to participate in the State Water Project. The executed
agreements were submitted to the County Flood Control and Water Conservation
District. The City signed the agreements with the knowledge that a referendum was
circulating and so notified the District. The District accepted the agreements but
incorporated a condition due to the referendum. That condition requires the City to
notify the District in writing by December 1, 1992, that all reservations due to the
referendum or otherwise are removed and that the resolution authorizing participation
in the SWP or any similar resolution is unconditionally effective. If the City is unable to
do that, the County Engineer will automatically direct the California Department of
Water Resources to delete the City's 3,000 acre feet from the State Water Project.
The referendum has been submitted to refer the resolution. The City Attorney and
outside legal counsel are of the opinion the resolution authorizing participation in the
SWP was an administrative action and not a legislative action and, therefore, is not
referable. Outside legal counsel has also recommended the referendum be placed on
the ballot by the City Council. The legal issue associated with the referendum is
addressed in a separate memo from the City Attorney. But, assuming the referendum is
placed on the ballot for the November 3, 1992 general election, some of the following
options may occur.
Before the election, the referendum could be legally challenged in court as being an
invalid subject matter by either the City Council or other party. If the challenge was
upheld prior to the election, there would not be an election and the initial resolution
authorizing participation in the SWP would be valid. If the challenge was defeated, then
the election would occur.
If the election occurs, either the resolution is overturned and the City cannot participate
in the SWP or the resolution is reaffirmed and the City can notify the District that the
resolution is unconditionally effective and the City could participate in the SWP.
��9
Referendum on State Water Project
Page 2
The same legal challenge as mentioned above could also be raised after the election.
Since there would be less than four weeks to obtain a decision out of the courts before
the notification deadline, it is highly unlikely that time schedule could be met.
Therefore, the City would lose its 3,000 acre feet of state water.
There is also the possibility that a legal challenge by either the pro or anti State Water
groups could be raised based on some yet unknown legal issue. This could result in
further litigation and delays.
Some discussion during the SWP deliberation of the District indicated the City may be
liable for cost reimbursement to the Department of Water Resources for design changes
if it is necessary for the City to withdraw from the project. That provision was not
formally included in the District's motion approving the agreements. Based on a worse
case scenario, the City should probably assume that cost reimbursement would occur.
P:\BILL\swprefer.WP
o?_6d
-MEETING AGENDA
.ATE
• ������� ��������III III ����� ��� I -it cityO SAn
tuls
-ISPO
990 Palm Street/Post Office Box 8100 • San Luis Obispo McJ3dQ➢r Mon ❑ FYI
-yCaa+ai ❑ CDD DR
June 23 , 1992 lJ Uo ❑ FIN.DIR
�ACAO ❑ FIRE CHIEF
LJ CLERK/ORIG. ❑ PoiJCEC)-1.
TO: City Council ❑ MGMT.TEAM ❑ RECDIR
❑ cm-
READ FILE 20, UT7L ISR
FROM: Jeffrey G. Jorgensen, City Attorne ❑' TT.
SUBJECT: Referendum on State Water Project
Recommendation:
(1) Adopt a resolution placing the referendum on the November 3 ,
1992 ballot.
(2) Should the Council wish to consider whether to initiate a pre-
election legal action to determine the validity of the
referendum, hold a closed session pursuant to Government Code
Section 54956.9 (c) .
Background:
On April 16, 1992, Councilperson Pinard requested a written opinion
on whether a City Council decision to participate in the State
Water Project would constitute a "legislative" or "administrative"
act. My memorandum of April 20, 1992 concluded that while the
issue is uncertain, a stronger argument can be made that a City
Council decision to approve the Water Supply and Water Treatment
Agreements taken in the context of all the City' s adopted plans and
policies concerning water, is an administrative act to implement
the City's water supply needs and therefore not a valid subject of
a referendum. (A copy of the April 20, 1992 memorandum is attached
as Exhibit A. )
On April 21, 1992, the City Council adopted Resolution No. 8001
authorizing the Mayor to execute the Water Supply Agreement and
Local Facilities Agreement for participation in the State Water
Project.
Not long thereafter, concerned citizens began circulating a
referendum petition concerning Resolution 8001. As a result, an
impartial, objective, independent analysis was requested from
Daniel J. Curtin of the law firm of McCutchen, Doyle, Brown and
Ennerson concerning the legality of a referendum on the City's
participation in the State Water Project. By letter dated May 11,
1992 , Mr. Curtin concluded that the . proposed referendum was not
legal since the adoption of the resolution authorizing the
1
agreements was an administrative act. Mr. Curtin also concluded
that even though the referendum is not proper because it seeks. to
overturn an administrative act, under the current state of case
law, only a court can order the measure off the ballot in a pre-
election challenge. (A copy of the May 11, 1992 letter is attached
as Exhibit B. )
On May 12 and again on May 26, 1992 , the Water Supply and Water
Treatment and Local Facilities Agreements were executed by the
Mayor and transmitted to the County for consideration at the May
27, 1992 San Luis Obispo County Flood Control and Water
Conservation District Board of Directors meeting, as required to
meet the June 3, 1992 deadline established by the State of
California for participation in the project. The District was
informed of the pending referendum and the City' s position that
Resolution 8001 is an administrative act not subject to referendum.
(Please see paragraph 7 of the opinion letter dated May 26, 1992,
attached as Exhibit C. )
At the May 27, 1992 San Luis Obispo County Flood Control and Water
Conservation District meeting, the Board approved the City's
contracts subject to certain conditions, including that City
participation is conditioned upon the City giving written notice
prior to December 1, 1992 that Resolution 8001 is unconditionally
effective. (Excerpts from the minutes of the May 27, 1992 meeting
are attached as Exhibit D. )
Alternatives:
(1) Refuse to place the referendum on the ballot. In light of the
analysis contained in the May 11, 1992 opinion letter from
Daniel J. Curtin, this alternative is not recommended as it
does not appear to follow the requirements of law.
(2) Adopt a resolution repealing Resolution 8001. This would
have the effect of terminating City participation in the State
Water Project. If this alternative is chosen, the County
Flood Control and Conservation District should be notified
immediately that the City wishes to withdraw from the project
and rescind the previously submitted water supply and water
treatment agreements. It is anticipated that such action
would be accepted by the District and that damages, if any,
from City withdrawal would be minimal since design work has
not yet commenced on either the pipeline or water treatment
plant.
(3) Adopt a resolution placing the referendum on the November 3,
1992 ballot. This is the recommended alternative.
(a) Should the Council wish to consider whether to initiate
a pre-election legal action to determine the validity of
the referendum, it should hold a closed session pursuant
2
to Government Code Section 54956. 9 (c) .
(b) There has been speculation that an as yet unidentified
third party or parties may bring an independent legal
action either for or against the referendum. In the
event such legal action is threatened or commenced, the
Council should hold a closed session pursuant to
Government Code Section 54956. 9 (b) .
(c) Whether the Council determines to initiate a pre-
election legal action, or such an action is brought by
a third party, the City' s special water rights counsel,
Hatch and Parent, are available to represent the City.
(d) If the referendum goes to an election. without a pre-
election legal challenge to resolve its validity and the
referendum passes, the City will be effectively precluded
from participation in the State Water Project because of
the December 1, 1992 deadline established by the District
to submit written notice that Resolution 8001 is
"unconditionally effective, " and the City may be required
to reimburse the District for redesign costs, the costs
of which are undetermined at this time.
(e) If the referendum goes to election without a pre-
election legal action to resolve its validity and the
referendum fails, resolution 8001 would be upheld and the
City could participate in the project. There is a risk,
however, that a challenge could still be brought
concerning validity of execution of the contracts.
(4) Adopt a resolution placing the referendum at a special
election. While this is a legally permissible alternative,
there may be logistical and cost considerations which make
this alternative impractical. The City Clerk should be
consulted concerning the requirements of conducting a special
election before this alternative is considered.
(5) Conduct a binding election on participation in the state Water
Project (otherwise referred to as a "voluntary" referendum. )
This alternative is not recommended as it would constitute a
breach of the contracts submitted by the City to the San Luis
Obispo County Flood Control and Conservation District and
approved by the District at its May 27, 1992 meeting. In
addition, it would not appear to meet the State' s criteria for
a time extension based on factors beyond the City's control.
JGJ/sw
cc: John Dunn
Ken Hampian
Bill Hetland
Pam Voges
3
�►►►�►���������������i���I8111111 °°1 °° III c��r o san hugs oaspo
y
990 Palm Street/Post Office Box 8100 • San Luis Obispo, CA 93403.8100
April 20, 1992
TO: Councilperson Pinard
FROM: Jeff Jorgensen, City Attorne
. SUBJECT: State Water Proiect
Ouestion•
This memorandum is in response to your telephone request on
Thursday, April 16, 1992, for a written opinion on whether. a City
Council decision to participate in the State Water Project would
constitute a "legislative" or "administrative" act. The
significance of the distinction is that a legislative act may be
subject to referendum, whereas an administrative or adjudicatory
act is not.. .
Analysis:
As a preliminary comment, it is important to note that whether an
action is legislative or administrative is dependent upon the
specific facts and law applicable to each unique situation. While
the courts have interpreted what • constitutes legislative or
administrative action in numerous cases, none of those cases is
exactly analogous to the State Water Project issue and therefore. ,
it is not possible to say with certainty how a court might rule if
called upon to do so. in this particular instance.
While the power of referendum is to be liberally construed to
uphold that power whenever it is reasonable to do so, it is also
well established that the exercise of the referendum power is
limited to matters that are legislative, and conversely,
administrative acts are not subject to referenda. Unfortunately,
the test for determining what is legislative and what is
administrative or adjudicatory is not always clear. Perhaps the
best test is as follows:
"Legislative acts generally are those which
declare a public purpose and make provisions
for the ways and means of its accomplishment.
Administrative acts, on the other hand, are
J 1
Exhibit A
those which are necessary to carry out the
legislative policies and purposes already
declared by the legislative body. . . . " Fishman
v. City of Palo Alto, 150 Cal.Rptr. 326, 327
(1978) . Merriman v. Board of Supervisors, 188
Cal.Rptr. 343, 344 (1983) .
Applying this test to a City Council decision to participate in the
State Water Project by approving the water supply and water
treatment agreements, if the State Water Project is viewed as an
isolated, single policy decision, independent of any other City
plans or policies, then an argument can be made that it may
constitute a legislative act under the Fishman and Merriman test,
to the extent that the Council 's action would " . . . declare a public
purpose and make provisions for the ways and means of its
accomplishment. " on the other hand, if a City Council decision to
participate in the State Water Project by approving the water
supply and water treatment agreements is viewed as one means of
implementing already existing plans. and policies such as the City's
General Plan, Land Use Element, Water and Wastewater Management
Element, multi-source water policy, and other adopted policies to
provide the City with an adequate water supply, then an argument
can be made that participation in the State Water Project would be
an act necessary to carry out the legislative policies and purposes
already established by the City, and therefore an administrative
act under Fishman and Merriman.
The only case I have' identified dealing specifically with approval
of contracts held that aside from any express or implied provision'
in a charter, the making of contracts by a city's legislative body
is an administrative, not a legislative function. Earl v. Bowen,
146 C. 754 (1905) .
Although beyond the scope of your inquiry, there are other judicial
limitations on the referendum process which could potentially have
applicability to this situation. Thus, a referendum may not
interfere with powers exclusively delegated to the City Council,
either under state - law or the charter; it may not impair an
essential government function, and it may not conflict with an
adopted general plan. Since your inquiry was directed to an
analysis of legislative vs. administrative acts, I have not
conducted significant research into these issues.
conclusion:
While the answer to your question is not entirely certain, I
believe a stronger argument can be . made that a City Council
decision to participate in the State Water Project by approving
the water supply and water treatment agreements, taken in the
context of all of the City's adopted plans and policies concerning
water, is an administrative act to implement the City's water
supply needs, and therefore not subject to referendum.
u 2
In the event the City is presented with a referendum petition, it
would be my recommendation that we consult with an independent
expert on this issue. As you may recall, the City previously
contracted with Daniel J. Curtin, Jr. and Thomas C. Wood of the
law firm of McCutchen, Doyle, Brown and Ennerson for an analysis
of the W.A.T.E.R. Initiative. Mr. Curtin is perhaps the foremost
authority in California on municipal law, and his firm is. the
author of the leading treatise on the subject of referenda
entitled, "Land Use Initiatives and Referenda in California. "
Solano Press Books, 1990. Mr. Curtin did a thorough and objective
job of analyzing the W.A.T.E.R. Initiative and would- be a valuable
, resource to the City should the need arise.
If you have further questions or comments, please feel free to
contact me at your convenience.
JGJ/sw
cc: City Council
John Dunn
Ren Hampian
Bill Hetland .
Arnold Jonas':
`� 3
MC JTCHEN, DOYLE, BROWN 6 EN, -.SEN
rc arc:;co COVNSELCRS AT LAW
LC^a iwOCLC6 1321 NOR7K CALIFCCN:n ECULEVArD 'a1cc1
Eaw :CEE P057 CMCE EC)( v
,.rrq,aCCD
aL+'vc CcCLR I+•h LvV7 CREEK. CaUrO FNIA F4556 CrrIC£
7ELEPFCNE (510) 237-6000 EavORCR
FACSInILE (SIC) P75.5iPO
May 11, 1992 ZIGECT ZI.L -I"EEF
VIA FACSIMILE
Jeffrey G. Jorgensen
City Attorney
City of San Luis Obispo
PO Box 8100
San Luis Obispo, CA 93403-8100
Legality of Referendum on
state Water Project (SWP)
Our File No. 73145-003
Dear Mr. Jorgensen:
This letter is in response to your request of April
28, 1992 , asking for our legal advice concerning the validity
of a referendum petition to overturn the City Council's
decision to enter into certain agreements to participate in the
State Water Project.
CONCLUSION
Based on the information furnished to me, it is my
advice that the proposed referendum is not legal since the
adoption of the resolution authorizing the agreements was an
administrative act.
FACTS
At its April 21, 1992 meeting, the City Council
approved participation in the State water Project by adopting a
resolution making environmental determinations and a resolution
authorizing the execution and delivery of a water supply
agreement and a water treatment and local facilities
agreement. At the April 21, 1992 neeting, opponents of
participation in the State Water Project testified that they
considered the Council 's decision to be a legislative act, and
that they would circulate a referendum petition.
EXHIBIT B
2*d 66ES SL6 eiS o/m N3Hoinmw 6S:IT 26, 11 AdW
Jeffrey G. Jorgensen
May 11, 1992
Page 2
You have provided me with various adopted City
documents and policies with respect to water supply, water
planning and supplemental water supplies. They are as
follows:
1. General Plan - water & Wastewater Management
Element
2 . 1977 General Plan. - Urban Land Use Element
3 . General Plan - Housing Element
4 . Conservation Element
5 . water Management Plan
6. water Supply Study
7 . 1991-92 Water Operational Plan
8. City Charter
You also informed me that on April 9, 1991, the City
held an advisory election on participation in the State water
Project.
ANALYSIS
California authorized the. initiative and referendum
procedures in 1911. Article II, Section 11 of the California
Constitution provides as follows:
"Initiative and referendum powers may be
exercised by the electors of each city or
county under procedures that the Legislature
shall provide. This section does not affect
a city having a charter. "
The City of San Luis Obispo is a charter city and its
Charter adopts the procedures set forth by the Legislature.
(San Luis Obispo Charter, Section 304 . ) Therefore, case law
interpreting the Election Code apply.
Since the people have reserved to themselves the
powers of the initiative and referendum through the
constitution, the courts have continually guarded these
E'd 66ES S46 079 DzM W3HD1nDDW TS:TT 26, TT AUW
Jeffrey G. Jorgensen
May 11, 1992
Page 3
rights. Legislature v. Eu, 54 Cal. 3d 492 (1991) . However,
they must be exercised in conformance with state lata. Lesher
Communications Inc. v. City of Walnut Creek, 52 Cal . 3d 531,
540 (1990) .
Section 9 (a) of Article II of the California
Constitution defines the referendum as "the power of the
electors to approve or reject statutes or parts of
statutes . . . " ; therefore, the basic rule for a referendum is
that it is available only for legislative acts, and not to
executive or administrative acts. Simpson v. Hite, 36 Cal. 2d
125 , 129 (1950) .
The major issue in this factual situation is whether
or not the City Council's decision to enter into the agreements
for SWP was a legislative act or an administrative act. If it
was a legislative act, then it is subject to a referendum.
This subject was recently discussed extensively by the
appellate court in Southwest Diversified. Inc. v. City of
Brisbane, 229 Cal . App. 3d 1543 (1991) . (Petition for Review
denied by California Supreme Court, July 25, 1991. ) In this
case the court held that a. zoning ordinance adjusting
boundaries was an administrative act and not subject to a
referendum.
The court in reviewing many of the leading authorities
in California stated:
"The power of referendum conferred by article
II, section 9 , of the California Constitution
applies 'only to acts which are legislative
in character, and not to executive or
administrative acts. ' (Simpson v. Hite
(1950) 36 Cal . 2d 125, 129 (222 P.2d 225] . )
In distinguishing between the two, California
cases have commonly cited the formulations in
McKevitt v. City of Sacramento (1921) 55 Cal .
App. 117 , 124 (203 P. 132) , and McQuillin on
Municipal Corporations. (Citations
cmitted. ) The McKevitt decision states:
'Acts constituting a declaration of public
purpose, and making provision for Ways and
means of its accomplishment, nay be generally
classified as calling for the exercise of
legislative power. Acts which are to be
deemed as acts of administration. . . are those
which are necessary to be done to carry out
y d 06ES SL6 GiS ODM N3HOinmw ZS:TT 26, 11 AUW
Jeffrey G. Jorgensen
May 11, 1992
Page 4
legislative policies and purposes already
declared by the legislative body, . . . (55
Cal . App. .at p. 124 . ) Somewhat more
succinctly, McQuillin states: 'The power to
be exercised is legislative in its nature if
it prescribes a new policy or plan; whereas,
it is administrative in its nature if it
nerely pursues a pian already adopted by the
legislative body itself, or some power
superior to it. ' (5 McQuillin on Municipal
Corporations (3d ed. 1989) § 16. 55, at
p. 266. )
The court, in applying the above principles, held that
the ordinance, even though normally classified as a legislative
act subject to referendum, was in the Brisbane situation only
an .administrative act and, therefore, the court ordered the
referendum off the ballot.
Applying that Southwest Diversified judicial test to
the facts here, it appears clear that the City Council's action
was administrative in nature in that it implemented legislative
policies already previously adopted by the City Council. Many
of these are contained in the City's General Plan, which is the
City's charter or constitution for development. Lesher v. City
of Walnut Creek, supra. Therefore, this action is not subject
to the referendum procedure.
For the April 21, 1992 Council meeting at Which the
action was taken the Council had several reports before it
making reference to previously adopted city policies. The
following excerpts point out some of the legislative policies
which the City Council is implementing through an
administrative act to obtain more water to meet t.he goals of
the General Plan:
1. The City of San Luis Obispo has identified a need
for 6665 acre feet of additional water in order
to meet water supply requirements under the
City's current General Plan. (State Water
Project Participation Report by William T.
Hetland, Utilities Director, Item 1A, page 1. )
2 . Besides the City's limited availability of land
for development, the City's primary growth
mitigation is its growth management ordinance and
development regulations. Since these regulations
control the rate of building permits issued when
S'd 06ES SL6 0TS D/M W3HDinDDW 2S:1T 26. IT AdW
Jeffrey G. Jorgensen
May 11, 1992
Pace 5
adequate water resources are available, they tend
to mitigate the availabity of water as a growth
inducement factor. Therefore, the lack of water
will definitely restrict growth but the converse
is not necessarily true since the City has growth
limiting policies and regulations in place. The
City's adopted growth goals as embodied in the
General Plan cannot presently be met because of a
lack of water, and even with the SWP we will be
short. The SWP will helm meet the City' s adopted
orewth coals and policies. (State. Kater Project
Participation Report by William T. Fetland,
Utilities Director, Item 1A, page 13 . ) (Emphasis
added. )
3 . It is desirable to provide adequate water: for
growth in conformity with the Land Use Element;
for development of affordable housing as provided
in the housing Element, including that needed to
meet the identified City share of regional
housing needs ; to allow diversion of some grow-th
from other places in the region where its
occurrence could entail more severe impacts; to
allow expansion of the city to better control the
type of development which might occur at its
edges. (Environmental Determinations for City
Participation in the State Water Project by Glen
Matteson, Associate Planner, Item 1B; 10E of
Statement of Overriding Considerations - City's
Resolution taking Environmental Dete „ inations. )
4. The current water-delivery service area is the
incorporated area of the city. The. city shall
provide water service adequate for existing uses
and new development pursuant to the Land Use
Element for all areas within the city limits.
(Policy 1. 1 of the Water & Wastewater Management
Element of the City of San Luis Obispo General
Plan. )
5. The urban reserve line (the outer limit to urban
development) includes areas which the city may
annex in the future. Water service adequate for
potential uses allowed by the Land Use Element
(including hillside planning provisions) shall be
provided for all areas within the urban reserve
line. (Policy 1. 2 of the Water & Wastewater
Management Element of the City of San Luis Obispo
General Plan. )
9 d 06ES SL6 01S D/M W3H71NDW 2S:11 26, 11 AUW
Jeffrey G. Jorgense,.
May 11, 1992
Page G
G. . The city's water sources and treatment, storage,
and distribution systems must be able to support
population and related service demands consistent
with general-plan objectives. These basic
objectives are stated in the Land Use Element
(growth management) and in the Housing Element.
The city will pursue sources of supplemental
water to serve the land uses and rates of growth
outlined in the general plan, with a reasonable
margin for error in projections. (Policy 1.7 of
the Water & Wastewater Management Element of the
City of San Luis Obispo General Plan. )
7 . in deciding appropriate sources of supplemental
water, the city will evaluate impacts on other
users of the water and other environmental
impacts, total and unit costs, reliability, water
quality, development time, and quantity
available. (Policy 3 . 1 of the Water & Wastewater
Management Element of the City of San Luis Obispo
General Plan. )
S. All potential supply alternatives will be
explored. city efforts to provide supplemental
water supplies will generally follow the
priorities below. While the city has taken some
action on a range of potential sources, it cannot
pursue each potential source with equal effort.
The priorities are intended to focus city efforts
on those sources which will : (1) be able to
supply water earlier even though the amounts are
relatively modest; (2) require the least capital
funding; (3) cause the least environmental
impact, in terms of both the project sites and
commitment to growth-inducing resource
expansions; (4) offer the most city control . The
order indicates general priorities, not a strict
sequence.
More efficient use of existing supplies
(conservation) ; more complete use of sources
already used by the city; development or
reactivation of sources in and near the city;
development of other new sources within San Luis
Obispo County; development of new sources outside
L'd 06ES SLG 3IS 7iM W3HDinD7W ES:TT 26, TT AdW
Jeffrey G. Jorgensen
May 11, 10,02
Page 7
San Luis Obispo County. (Policy 3 . 2 of the Water
& Wastewater Management Element of the City of
San Luis Obispo General Plan. )
9 . The City will pursue the following water
sources. Specific steps to prepare feasibility
studies, environmental documents, financing
programs, and designs will be spelled out in the
city's five-year capital facilities plan and
two-year budgets. Because some sources outlined
below will require more evaluation or the
cooperation of other agencies, a schedule of
water availability cannot he assured.
. . . . 6. Participating with the county or other
agencies in a regional source, such as Nacimiento
Reservoir connection or Coastal Branch of the
State Water Project. (Program 3 . 1 of the Water &
Wastewater Management Element of the City of San
Luis Obispo. General Plan. )
These excerpts are shown as examples of evidence in
the record pointing out policies earlier adopted by the City .
Council especially in its General Plan. 'These factual
determinations are of the type referred to by the appellate
court in Soutbwest Diversified supra at page 1556:
"The distinction between legislative and
administrative action may sometimes present not only
legal issues but factual issues bearing on the
municipality's intent. To the extent that the
judgment is based on factual determinations, we
examine whether it :;as supported by substantial
evidence. (W. W. Dean & Associates v. City of South
San Francisco, supra, 190 Cal . App. 3d at p. 1371. ) "
Also, the resolution authorizing the agreements makes
reference to some of this evidence by stating: "City Council
hereby adopts as being true and correct the Findings,
Conditions, and Statement of overriding Considerations
previously adopted and incorporates the same by reference
herein. " The statement of overriding considerations reflect
the policies being implemented. (See No. 3 on page 5 of this
letter. )
In summary, applying the judicial tests laid down by
the courts as outlined in Southwest Diversified, supra, and
cases cited therein, the resolution authorizing the agreements
. for the State Water Project merely carry out the policies
_. rr rr r1G rTr �.rn u7u'� n11tr['.TT 7G 7T 1NIJ
Jeffrey G. Jorcer,sei.
May 11, 1992
Page 8
contained in the General Plan and the environmental
documentation and, therefore, is administrative in nature. The
resolution carries out the City's previously adopted policies
to assure a supply of water to implement the City's General
Plan, the constitution for develcpment. Thus, the referendum
is invalid.
PREELECTION CHALENGE
Under the rules laid down by Southwest Diversified,
Inc. supra, and DeBottari v. City Council of the City of Norco,
171 Cal. App. 3d 1204 (1985) a preelection challenge can be
brought to prevent the unnecessary expenses for an election
when -the measure is not the proper subject for a referendum.
On this point the Court in Southwest Diversified,
supra, page 1558 stated:
"Lastly, appellants argue that the trial court should
have postponed consideration of the Developers'
challenge to. the referendum until after the election
was held. California law on this point stems from a
concurring opinion of Justice Mcsk in Brosnahan v. Eu
(1982) 31 Cal . 3d 11 6 (181 Cal. Rptr. 100, 641 P.2d
200] . Justice Mosk wrote that, while courts should
generally decline to hear constitutional challenges to
an initiative or referendum until after the
election, 'this rule applies only to the contention
that an initiative is unconstitutional because of its
substance. If it is determined that the electorate
does not have the power to adopt the proposal in the
first instance or that it fails to co,:ply with the
procedures required by law to qualify for the ballot,
the measure must be excluded from the ballots Thus,
for example, election officials have been ordered not
to place initiative and referendum proposals on the
ballot on the ground that the electorate did not have
the power to enact them since they were not
legislative in character (Citation omitted. ) There can
no longer be any doubt that the courts may remove a
referendum from the ballot on the ground that it does
not concern a legislative measure. " (Emphasis added. )
In Southwest Diversified supra, the developer
(successfully) sued to keep the Tatter off the ballot
successfully. In the DeBottari case supra, the City Council on
the advice of the City Attorney kept the referendum petition
off the ballot and then DeBottari, a proponent of the
referendum, sued unsuccesfully. In DeBottari the court stated:
6'd 66£S SL6 0IS D/M N3H:)1f0:)W VS:IT 26, IT ALIW
Jeffrey G. Jorgensen
May 11, 1992
Page 9
"There appears to be no case which has addressed the
question whether a city council retains discretion
under Elections Code section 4055 to refuse to place
on the ballot a duly certified referendum petition.
Fo;,�ever, many courts have construed similar election
statutes to hold that a city clerk, a city registrar
of voters, a county clerk, a county board of
supervisors, and the Secretary of State of California
all have a mandatory duty to process and submit
initiative and referendum measures. (Citation
omitted. )
We perceive no basis for distinguishing the case at
bar from the foregoing authorities, and defendant has
not suggested any. Fence we conclude the council had
a mandatory duty either to repeal the challenged
ordinances or to submit the ordinance to referndum
unless 'directed to do otherwise by a court on a
compelling showing that a proper case has been
established for interfering with the referendum
power. "'
Also to the same point see Citizens for Responsible
Behavior v. Superior Court, i Cal. App. 4th 1013 , 1021 (1991) .
In the San Luis Obispo situation, if there are
sufficient signatures for a referendum the City Clerk must
process the petition and the City Council must either repeal
the Resolution or else put it to a vote. Then it will be up to
a third party to sue or the City Council itself to bring a
proper lawsuit to keep it off the ballot. Pulskamp v.
Martinez, 2 Cal. App. 4th 854 (1992) and City and County of San
Francisco v. Farrell, 32 Cal . 3d 47 (1982) . The City can only
legally refuse to put a petition on the ballot if the petition
is procedurally defective. Billie v. Voges, 223 Cal. App. 3d
962 (1990) . That is not the case here.
Therefore, even though the referendum is not proper .
because it seeks to overturn an administrative act under the
current state of case law, only a court can order the measure
off the ballot in a preelection challenge.
If you have any questions, please advise.
Ver§L.trul v ur
Daniel Murtin, Jr.
Lr[:pnj/5
1287G
6I 'd 06ES Sl6 eT5 D/M N3HDinDDW tS:IT 26. 11 Adw
city of sAn lues oBisL,�o
980 Pa!n SireellPosl 01lice Box 8100 • San Luis Obispo, CA 934031-V00
=4�c
14ay 26, 1992
San Luis Obispo County Flood Control
and Water Conservation District
County Government Center
San Luis Obispo, CA 93403
City of San Luis Obispo
990 Palm Street
P.O. Box 3100
San Luis Obispo, CA 93403-3100
Central Coast Water Authority
3301 Laurel Canyon Road
Santa Barbara , CA 93105-2017
Ladies and Gentlemen:
In my capacity as City Attorney, I am acting as general
counsel to the City of San Luis Obispo (the "Contractor") under the
Water Treatment and Local Facilities Agreement, dated as of March
1, 1992 (the 9-,later Treatment Agreement" ) and the Water Supply
Agreement, dated , 1992 , and executed by the
City on May 26, 1992 (the "Water Supply Agreement" ) (the Water
Treatment Agreement and the Water Supply Agreement collectively
referred to as the "Agreement") , beti'reen the San Luis Obispo County
Flood Control and Water Conservation District (the "District") and
the Contractor, and have acted as general counsel to the Contractor
in connection with the natters referred to herein. As such
counsel , I have examined and an familiar with (i) documents
relating to the existence, organization and operation of the
Contractor, provided to me by Contractor, (ii) certifications by
officers of the Contractor, (iii) all necessary documentation of
the Contractor relating to the authorization, execution and
delivery of the Agreement, and (iv) an executed counterpart of the
Agreement. Terms used herein and not otherwise defined have the
respective meanings set forth in the Agreement.
Based upon the foregoing and such examination of law and such
other information, papers and documents as I deen necessary or
advisable to enable me ' to render this opinion, including the
Constitution and laws of the State of California, together with the
resolutions, ordinances and public proceedings of the Contractor,
I am of the opinion that :
EXHIBIT C
1. The Contractor is a charter city, duly created, organized
and existing under the laws of the State of California and duly
qualified to furnish s-,ater service within- its boundaries .
2 . The Contractor has legal right; power and authority to
enter into the Agreenent and to carry out and con-=urinate all
transactions reasonably contemplated thereby, and the Contractor
has complied with the provisions of applicable law relating to such
transactions, subject to the qualifications set forth in paragraph
7 hereof.
3 . The Agreement has been duly authorized, executed and
delivered by the Contractor, is in full force and effect as to the
Contractor in accordance with its terns and, subject to the
qualifications set forth in paragraph 7 and the second to the last
paragraph hereof, and assuning that the District has all requisite
pciaer and authority, and has taken all necessary action, to
authorize, execute and deliver such Agreenent, the Agreement
constitutes the valid and binding obligation of the Contractor.
4 . The obligati cns of the Contractor to make payments under
the Agreement from the revenues of its Contractor hater System or
other lawfully available funds as provided in Section 5 of the
Agreenent is a valid, legal and binding obligation of the
contractor enforceable in accordance with its terns, subject to the
qualifications set forth in paragraph 7 hereof.
5. No approval , consent or authorization of any governmental
or public agency, authority or person is required for the execution
and delivery by the Contractor of the Agreement, subject to the
qualifications set forth in paragraph 7 hereof.
6 . The authorization, execution and delivery of the
Agreement and compliance with the provisions thereof will not
conflict with or constitute a breach of, or default under, any
instrument relating to the organization, existence or operation of
the Contractor, any ccmnitment, agreement or other instrument to
which the Contractor is a party or by which it or its property is
bound or affected, or any ruling, regulation, ordinance, judgnent,
order or decree to which the Contractor (or any of its officers in
their respective capacities as such) is subject or any provision
of the laws of the State of California relating to the Contractor
and its affairs, subject to the qualifications set forth in
paragraph 7 hereof.
7 . There is no action, suit, proceeding, inquiry or
investigation at law or in equity, or before any court, public
board or body, pending or, to ny knowledge, threatened against or
affecting the Contractor or any entity affiliated with the
Contractor or any of its officers in their respective capacities
as such, which questions the powers of the Contractor referred to
in paragraphs 2 through 6 above or the .validity. of the proceedings
2
taken by the Contractor in connection with the authorization,
execution or delivery of the rgree,. ent, or ,..-,herein any unfavorable
decision, ruling or finding .;ould materially adversely affect the
transactions contemplated by the Agreement, or which would
adversely affect the validity or enforceability of the Agreement,
except as fo11ows :
(a) Contractor is informed that a referendum petition is
being circulated in an attempt to repeal Contractor ' s
adoption of Resolution No. 8001 , authorizing the
execution and delivery of the t4ater Sur-ply Agreement and
the i-iater Treatment Agreement for participation in the .
State Vater Project. Contractor believes that
Contractor; ' s adoption of Resolution No. 8001 is an
administrative act to implement Contractor ' s water supply
needs based upon Contractor ' s adopted plans and policies
to provide Contractor with an adequate water supply, and
therefore not a valid subject of a referendum.
Nevertheless, should it be determined that Contractor ' s
adoption of Resolution No. 8001 is a valid subject of a
referendum, and a legally valid referendum petition is
ubmitted to Contractor containing sufficient signatures,
then Resolution No. 8001 would be suspended and not take
legal effect unless upheld by . a majority vote at an
election. If after an election Resolution No. 8001 were
not upheld, then Resolution No. 8001 would not take
effect and Contractor would not be authorized to execute
the Water Supply and 1,Tater Treatment Agreements. (Please
see the attached letter from the Environmental Defense
Center of Santa Barbara , dated May 4 , 1992 , marked as
Exhibit 1 and incorporated herein by reference. )
(b) The May 4 , 1992 letter from the Environmental Defense
Center argues that City Charter Article 6, Section 604
prohibits Resolution No. 2001 from going into effect less
than thirty days from its adoption, or on about May 21 ,
1992 , and therefore any action to implement 'Resolution
?To. 8001 prior to May 21 , 1992 would " . . . constitute an
ultra vires act in violation of city and State laws . " .
City Charter Article 6, Section 604 , provides as follcws:
"Section 604 . Effectiveness.
" Except as otherwise . provided in this
Charter, every ordinance and every measure
passed by the Council shall go into effect at
the expiration of thirty (30) days after its
final passage, unless otherwise provided in
said ordinance or measure ; provided, however,
that no such ordinance or measure shall go into
3
effect in less than thirty ( 30) days from its
final passage . But ordinances declared by the
Council to be necessary as emergency measures
as hereinafter provided, ordinances ordering
or otherwise relating to elections, ordinances
relating to public improvements , the cost of
which is to be borne wholly or in part by
special 'assessments, and taxing Ordinances may
co into effect at the will of the Council . "
Contractor believes there is well established authority for the
proposition that the term "measure" as used in Section 604 does not
apply to resolutions which are administrative rather than
legislative enactments. midwav Orchards v. County of Butte, 220
Cal .App. 3d 765 (1990) ; Housing Authority v. Superior Court, 35
Cal . 2d 550 (1950) ; 1.2hitr:,ore v. Carr, 2 Cal .App. 2d 590 (1934) .
Nevertheless, should it be determined that Section 604 is
applicable to resolution No. 8001, either by its own terms or that
Resolution No. 8001 is a legislative enactment and therefore a
valid subject of a referendum, Contractor may not be authorized to
execute the 1-dater Supply and 14ater Treatment Agreements.
The opinion expressed in paragraph 7 above is further
cualified to the extent that Contractor, District, or the State of
California may be challenged under the California Environmental
Quality Act (CEQA) for deciding to carry out the project.
The opinion expressed in paragraph 3 above is qualified to
the extent that the enforceability of the Agreement may be limited
by any applicable bankruptcy, insolvency, reorganization,
arrangement, moratorium, or other laws affecting creditors ' rights,
to the application of equitable principles and to the exercise of
judicial discretion in appropriate cases and to the limitations on
legal remedies against public agencies in the State of California
and provided that no opinion is expressed with respect to any
indemnification or contribution provisions contained therein.
This opinion is rendered only with respect to the laws of the
State of California and the United States of America and is
addressed only to the District, the Contractor and the Central
Coast Y7ater Authority. P:o other person is entitled to rely on this
opinion, nor may you rely on it in connection with any transactions
other than those described herein.
Very truly yours,
efreyIG Aney
r ensen
JGJ/sw
4
L,1lVlR0Nl1 )--NTA L 1,4 :Y05 c:22
CJ
?�iay4 ,11'02
Mayor Ron DL'nin
Ciry CoLr:c;l
City of San L t•is Obispo
P.O. Lex 8,100
San Ll-,:s Obispo, CA 93403
Re: Siale WE cr P7o'tct
Deer?l,ei°arD;:r. n crd Norwrcble Co.'r.cil ldembers,
This letttr is sLb--,*ntd on behalf of Cinzens for Open Govemmcni, io advise you Lhat
Tesidents of Lhe City of Si_n Luis Obispo art c1Lr76ndy ciTcu)adng a 7tfert7-jdum ptnnon in art,
attempt to repeal the City's adoprion of Resolution No. SO.OI, spp7ovLng and fulhorz:rg the
City's participation in the Start \'later Projccr. (Sez anached pttdon.) i ne tffec';ve date of
Lht reso)uton is stayed for a period of LhL*Ty days pending this cL*culadon drive; accordingly,
Lhe City may not i.—p)tmtnr Rtso)ndon No. 8001 by executing any of.he agrteuntnts
rete-tnmd ihtrcin or by iakLng any other acrion in funhcranct of the terms and provisions
con,.aintd Lhtrt;n.
The City's Charier (.'_rdc)e 6, Stcdon 604) s'.ates Lhat "ei'ery ordirxr,ce and every n)her.
mr.-osure passed by ;he Council sh.cll go info efecr at rhe expirclion of 7hirry (130) d-r)•s rfier its fncl
pCSScge, hitless o;ker."re provided in :oid ordironce or rreaii4re;provided, hoi'.ei'('r, 11:01 no urh
ordi C!rnr.- r.r 7771•.:;1::2 sLcll ro !r.-o &Pty in !e.0 tint, !l+ir'y 1'0) drr,:s- frAr'1 iit frrl 7r<<I]Pe....•.
(Ste also Govtrr.'ment Code Secrion 36937; Elecrions Code Stcdon 4050.) The on?y
t.xctpdon to Lh;S Tule penLas to trr.crgtncy mtasu7es, o7o_'Ti.'--ncts ordering or mhe,.rise
TC]2P.Tig to elections, o7d:,nLnces rc?cling io public improvements, Lnd 13x oydnances. In such
casts, the meast *e may go ir.:o effect m )tss than Lhiriy d ys. (Chaner Ste. 604.)
In approving Rtso]'.idon No. SM, Lht Council did not m.j:c a find.—;n, that Lhc measure
qua_tiitd for any of the above-ntniiontd txctptons. In fact, to ouzify as a_n tmtrgtncy
meas�—,re, four affrmadve volts wou)d have been 7equL*ed. (CF.., r;cr St-c,--:on 605.) Given !hat
none of the ntcessary find:nts .t:ere made io qualify the rtsolution for an c>:ctpton io Lht
thL*ty-&Y i—a:iing pt-io-J, ar,d given that Lhe meastre passtd \viih only L}:rte affirmatve votes,
it is Clear that the ea_rlitst efftetvt date for Resolution No. 5401 is h,..v 21. 1992.
�ccordingl.,', pltast be 3ppristd that Reso)uton No. 8PO1 is staff-cd untl at )tasi ?.,ay 21, 3992;
if Lhe rtftrtndum pCi Eon is fi)td on or before that dait with a si fficicni numbtr of sienalL"es
io qualify for an t)ecrfon, the rtsolurion will continue io be stayed ptnr�rtg re.considtr=ton by
the Council or complri:on of the clecrion. (Eleciions Code Section 1,051.)
EMIBIT 1
•. t n 1..::;I;I �• c 1 c f 17. :L':l 1 . . ti v 1 A C 4 C.!:A R ♦• C 1 i 1 C I
.r.n;, t. la. . I ��.r, �.•..., tf5!
f C 0 N 1 7 0r,V 1 : 5: 1C,C .�.dl
c,c,�
A! or ;on D„nin
Cily Council
Pzee 2
In light of G c^ove, .he Clly and )Is Ol`ctl�, ern.p.loyets, Lnd E£tnls LTG p,'0`lh:led
from cnscL.ng or :lr n]t`-1tn�ng rit�O�L'^Q l ��.11 'Lr,61 ?vuy 2), 1992, Lod possib)y hitt. Any
ane^pl 10 1T7iplcmGni ;Is it us prior l0 cons6iule Ln lll•7a v"res ccl, >_n violEn'on
1 nLn-k you -Crlyour arenoon 10 1.113s z2ltcr. 1 you have any qutstions, pltisr fetl frGO
to c Li.
S:r:Ct?t�J,
c,�ff.=.�orn•ey
cc: PLM Vo£ts, Cly C-'•ers
john Donn, Cay Off:ctr
jeffrty G. joreenscn, Ciry "kilornty
�Ti�liL*1 T. Ht L^d, U�l'.Lts D:Ttci0r
SLn Leis Obispo Cour:ry Counstl
Clrtns for Optn Covtrn=,tra
nr.rr:rlr-r)Du!e%\CJ,ir:STA P=C
PASSEDDYTHE SA14LUrSODISPO c )COI' Soctknnl:n._f�
1 O Till= Si,la LUIS-0:)ISPO CI'iY C�—..•JCIL:
Pur;uanl to C;lffornin Ficc'ions Codo Section 4051,wc,the urldorsi0nod,not icss IN-in Ion pc, cont of 1110 number of
rrrisIcrcd q(Inliliccl voter:in Ills City or San Luis Obispo accordiN to the County Clortc's last olfici;ll report of rorl;lrnlion,
hereby prescni this pmilion prolcs!in0 your ndopllon on April 21,1992,of Resolution No.0001.We r6quoS1 111:11 tl•l)
nnSolution be entirely rcponleci by you,or be submitted to a vote of the pcDplo It Me next rcrul8r or spocial olociion for
IvhiCh II CIU•llilics.7hc full text DI file ncsolu;ion is as follows:
,( lVl llirl l[As,it i.Ill de,in rl do Coy of.'.•n LutI .`:1.0 lilll m..iSc n v:..r.......ltl dfnv of Oil
r,r...ln.:...Nn.l:ml 07):Srri..) ...
(IF'll!I'.I:AN LUI.s UnISIC)CITY r
Ul:.lu a..r rpr.uildc. n.y m.1"'.little, r.rd�bn do rn:rJ il,nrin,in Inrlull
r.nrnnrul
uIUNCII.AVI11010;..IItG'I'III:I[SLI.-LJ I1UN ..........ofL:.I lur.l.honlwnim liar...W LrJuirr m....... Ib..r I—n......f.-11'.•1 Jioul.n4.n
.I,i•I,lir whl,i...Ic City'$juri.Jin:.... l..I..—d I.r,l,nt.wlurL Lt w"I'm.Lc City.. .
AI:,Ill:IJ\'I.IIY I IF A NVA-1 R'';UI'I'1 Y I' lv,uvl in m.4 i.,C i..Ik.a i,i..,In rnl.r,Inn
A(:II I:I:bI IIN"1'ANI)A WA I'FI('I It I:A I'1.11n:1' I:U\V•'I'I11111(IUII Ii,Illi 11'It Gti UI-\'lin A.': iLr•\V ucr::ulyly A(rvrnrnl nil Wn11'1'mmlr-1
AND URAI-FAC11.1Ill.';AGI(I.h.bili11'1'AI:II FUIj-0W::: f Mir Cil ACnnnnu.ha.,Ir.l m.Lu Ilnolmbn.'nr Clay
A1J 111pl11''/.:N(:ClilO N U1111.II ACIIUNI .`.nti.n L L>tdlrll^'I� Itv 1`LIUI• Y CY'...nd1 hl"b I)u I.Iran, ..c.nd nu,rn da
l:'I IGIIIiA:,ILr City N) n Illil ill-ill—, .Cl...,rr Cr..ril I.—I,g.catkitlly W'd..nd Jcrlurl IL.1 "' 11 ,C
..Ir.Jrr ILc u......•n.I...n...I IlesLy unnnmc nd•rr will Iv.rl J1�t'C...Irl n..r,..,.I.•n.r.nnd'If lT.n
CLy duly uq;,,InrJ nd r.i o.,C I C..,, ..{u vL.�dy.n,�wd.rd Lln,.loi.ml
r,rbGc Jl.yr,!Ju Gry,mJ If 11.ILc ILc ..'T Ly..Ju nmc Lnnr..
..m Ill If.1.4.It.I,,n—An 1.rn,n . Il..lin(r•nd dncmlulnirnr al ILc City •:[nim S.1Jn11LLA6MlI�'nr y,l.yor..ul City
miunin(Cli.Lrr'J of I'•n 1 ul Uivn bn'I III I Il I[ "I L.J.in 111c pic•mblel.Looe u.J of Ih,
ul te C .Lnini.Inl ur uc Lull .Whvi>nI In Lu.ny uul
y(nvninn,ciu(wish?ri dim'.•I'/HI) hdilmnir Il
J.Kmnuw T•mrJ an",i n mc 11.1 A Y
G-vc...mrm CLIC III'-nlrninC wu.1,.Iy unirrd; `:scum'L;Y11t[L]VPJIY1aZ1i2IDclIL 1I.,Iww.l •11 ILL.p,told w n¢mr.nJ Jdiry<r.ny n,.l dl
lV.rwr,n I A 1 .,cJ In ILII In trlill( d.r.nn..... wlnrL Il,ty rn.y LI-11 ncrc.Itoy I,r
I•:: HII AN.I!,t City-4:: .,;11;1141.1•, .....I' IT)' /rc n�u cin r 1. .d,,i..W,ill n.Ikr In ri.r rlf.n u vIII u..nply wnl.
.uprly••(v rn.(dlC-%V'Itr n nut m I'll Illh.I.crCity Cull a licrrl ry yTrw IIIc 1 n ..nd it"1-1 oI Iho rt.of I";'
•:ulgJy ACrtr,rni)wnL J,..r ,i I,m lll.hn 'ILc I.I.y.r'I'd ILc City Clot•n I-],Ludy -1 A -, in 1,I.'1l'. .'I n•unnn A mnJ
Hn.I I:,.,u.J.-J\:'...r C'.IiiIII 11., uJ,n urd uol Juunul m crccmr,.rt nu,rinllr ',•IT Y {{ FF
D...,.Ills-D.....ri)..,.I. ..r .. .. .11.1 n,l Wi. r.•;d\V•cr ll,itl A/.mono in J.I.Lc::I.0 It(•rIJ ILr Cu rl l r,I..Ii14I F. ill
L..I I.nl.dr, n is Wick W.ICIr'I'rr.nnrr,I.nd .nlnurlu.11y. id fo uL urll al,w.ycr llrrcm a `n.un A.)jflc3iy dtic•'11u ulw ,hili 1.Ir
.AC. 1 • w r rfII11 nnum Ji..c1 ill
I,r.l Ii,J:nr.A(rc+ III-)......1 11.11 LI. I:r City ul:..t 4.i1 Uingrl nuy tr qy Oil Y°I"` P• C
O'lllJlli A."..P.,..I 1',w l...+.r.ul 1 n Ilrp.u: n.tL.Iq.w:.m Ir dncln.ivt ly rvnlu,rul Ly J.. U.I muiu,.J Gnnn;u,.0 Ilrin, i.•Bd Ly
"tit nr Wit I.1•w;tn•C'o..L l Ib.urL,J'111, II,..d rvun,. .nil delivery II.cICIII. 1'..I..rilvl .o,Il.'.I`.,J.t Io.rCnnl(,.•
fill l.L.I I I III l 11 Er.n.,.;(Cir III:h'ill 11 1.1 I(")h u Snvm 7.)'7 tlLLliuuLGV11nLIdKlJllfilbd 1'AtM11)AND A] 1'[111111..:lu lby of Apra,
Ir ..crn,li'd lr ILr:.ur nl C.Llumn,DI..Ilrurnl -1L,1...n or W.", I n...urul... 1'/):illy lb[(uIIVMIn(roll:
Y it IIs ,:[I[CIIICIIL A1'li]:Gw.¢.Lnnnlrn Ilan.i:•rv,..,.nJ:.I•ynr
plr\Nilo liuw.ru..nl.11 rtq,dmnnw Llied I;.a;Llin A[¢mlrnl J.I[J..of At uch 1. ITndn
�.Lfnnm Enviiunuc.I..l CI•�•Wy Aa(-C'!.l!A ) 1'/%], �rt.cmm m Ilol n-1;1-t mJ ul rill will)114 NUI:'::C-11-6 LRUI lira P;'lid.rid 1L"`it�n
hula I,1—Lwin,.,11 fit Cl..u.l IL.IIch::Ill:.nil. City Cllr,'n hu,by•ptnovcJ.'llc M.yur.rut ILc
\:'ll Fllli.t S, ic
Ili,City Council fol m.,4 cul.in 10.1.y Rut
L
City Clot 1n urL hucL, djTjj,c, id Jncnul /,/LLyor Aql U,min
:",,i cvJu.lilvu,frvlin(,,.In umLLlim 1, m.rrr.nr,.rtnuwlcJrc.nJ Jrlivu ,id lV.mr
unl
..........nl u.a,ud..,l cu..nlu uiuu•Jur Ci•y 'I'rI.nnun A I m1.Iuw•Ily..id rw•n,villi Auu.:
p[sm.. .. +.Iron l l n,Ciry Cauk
II uJcil.nimrin Ja::Iia\V.IIr I'n.j.u:.nJ urL rLm(u ILncm a On C'iry of Sm LI it Wi1l.I AVI ' (�
1':UIEI IIA:,I'1rGm irl.ry Ik.rip,nil.11,1.1 uy mqu6c m•1ro.<,web.pt'rn—I to Lc l4lo 0D,.n. . . .
Fnviunn.Told: .,i Ilrl.rl -:sole%VJu 1`rnjc0 ncl.ruvrly cvnlu.mJ by On ucavliw.nJ hjj,If Umn.Cny .cn.mwnnvc ay rcr
Gum)IL..nh(!%,,,11)I.r.d Di uril.nbm Lir' 1 livery ILcrwL A/Jrlfmy G.Jurynurn City Aunnmy
uul F.r;l lin-(`:LU till(')lin l,lnl n,.nplclr.l uu! Y Anvi1G.m T.Ilnl u,d,Waiurl
.':corm 1.LLQ/ Crmlv.un2.Tm Gly Cn.nril
nlinl by dr Ih nen nil•11 mquirc....m.u( LurLy 111•.1,•nd 21,1 JIC acnifiul Co•ml
CI:IIA h•vc Irl-1.13141.1 rtl.li.IC m Ill Iluurl I:III•nl IL,.<NIia SLD I:I li.r.J.'c.Iificl
moon III. c 111C.1J:m0.m6x.Guo.n'I IL.1 n lu.Iuu;Jncd Ju C.W 1Au1dI 1:11(unl
I.rihn".k,,rilld in ILr:%u IJI(:
NOT:CE TO T1iL PUP.LIC:I'IIS P=- T)ON MAY DL CIRCULATLD Sly A PUD SIGNATURT GA7 MUM
Olt A VOLU N'1'1i1-;)L YOU IIAV2 TML IUG1IT TO ASIC. OFFICIAL
I.il sir)nrr-of Ii)ir.proilion nI1Js1 Ivmoislnrod In Iho City of San Luis Ot)ispo. II::J_(ltl Y
•n1J1 wAhIG Iii:SIDENCL ADDRESS 040 P.O.DOXL:;)) DAI C
10.1I 1P0C :D- D. .
_ sICJC —�
11101:1 IIA1.11: IICCIUEIJGL AUDRL55(140 P.U.UOAL:1) �DAI2 UIGNA;IIEGL;fi7n:l NAI:LOF CITYOR U4JIDCOnPORAT LU C01.u.l
1.]1114 1 W0.11c I IL:;IDEIJCE ADDfILSS(IJG 1'.0.UOALs) I1AI li::IGI<ED
3 ::ICN h RI(CC;11:I1:U NAl.1 Of CITY on URINGOftl'OfV,I COI.v.IUNIry 21P
'II::JT IJAIAI: IILGIDLIJCL Anon Es::(NG I'.U.1XIIX") DAIL SICKED
Ll SIGN iS I1L'Cl',;'.LF ru NAI.IL or CITY On UNINCORPOIV. CD COI.ml.lum LIP
'f IIIYI NAL:L I1LGI EIJC A Drl:CC(1,10 '.U.nOXEs) DAI L SIGNIiU
::I.N/C: 7 -it; ULT) - JA I IIU I' - L .16(UN '
'IIIN NA:.IIcILCIDLId1rf:AD n'.:;INC)P.O.UOX !;I DATE::I >JEo
'TiiN IJALI C Or I 0 UI:IN PO1lA LILIUIJI .IP
I•Ilu.l l IJAldln I'ILLADENCL ADDRESS(IJU P.U.00XI.E. UAI Ic GIGI,1W
7 SIGN ili.Glsl l:nl:u a/.LIC 5j:CITY On umi4corilorIATLD C01.II.tUNIIY ?.it-
TI 1:S
1'TI'1:S III'I'ITION IS INVALID UNLES i DECLAnALION 01:CHIC ULA'I Oil IS CON,PLI_71:D
DCCV\nATION Or CHICULA I on (lo bo complrlad:01cr above sigrintures have boon obtained.):I am roriSlero(I to veto ill
Iho City of Snn Luis Obispo. my inskfonco :ulrf volina address I; Each o1 DI0
slrnaluros on this polilion was 51()nod in my prosunco.I circulalod this poinion soclion:Ind s:lw Iho si{jnalurus boinp wrinon.
Each sipnawfa 01 Dtis pelition is,to Iho host of Iny knowlodoo and belief,the 0enuino sirnaturo of Ihu porson wllos0 name it
pG:pons 10 be.All sirrmiures to IN,CIOCUrnont woro obtnlnod bolwoen :Ind
(monl7vday/year).I eonily under penally of porJury under ilia jaws or iliaSIaIC of California Ihal!ho lornrolnr
is true and C'orrnCl. '
ExccDlcd of San Luls Obispo,CaGfomin on: (dafc)
Sirnaturo Printed Namo
(itilxll:IItiYYu 11;1111a vlli;lJ
the Board approves the tract with the City of
San Luis Obispo and ete Section 6(b) as
requested by the City; including the language, as
previously approved by this Board, regarding the
referendum and direct staff to include a letter to
DWR by June 3, 1992 that informs them that the
County is conditioning the approval. Thereafter,
on motion of Supervisor Ovitt, seconded by
Supervisor Brackett, and on the following roll call
vote, to wit:
AYES: Supervisors Ovitt, Brackett, Delany,
Chairperson Laurent
NOES: Supervisor Blakely
ABSENT:Ncne
Exhibit D
' Section 4 .3f (1) is added under AIR QUALITY
} MITIGATION MEASURES, to read: "FC&WCD shall direct
staff to work with APCD to develop an offset
program to mitigate Nitrogen Oxides (NOx) that are
anticipated to be generated by the short-term
construction impacts of the Local District Pipeline
project. According to APCD, the construction of
the local pipelines as approved is expected to
generate approximately 32 tons of nitrogen oxides
(NOx) . Implementation should occur prior to start
of construction. "; the Findings are revised as
outlined on the blue page presented by staff today
and titled OPTION 2 and will revise Exhibit A to
the proposed resolution as follows: Section VII
(A) (4) (Growth) under Finding 3a and 3b, delete
subsections a through d and introductory paragraph
and add under . 3b: "As on potential mitigation for
growth-inducing impacts, the District considered
including a condition of approval for this project
whereby all purveyors who contract to receive water
from the project would commit to use project water
first to offset their proportionate share of
overdraft, if any. However, the District
recognizes that, if this condition were to be
imposed, the individual contractors could be
considered to be relinquishing local control of
water management issues, which are more
appropriately addressed by the local governing body
having jurisdiction over such issues. Therefore,
the District hereby finds that implementation of
mitigation measure 5.6(b) in the SLO EIR is within
the jurisdiction of the contracting entities, .and
not the District. Such changes have been adopted
by such other agencies or can and should be adopted
by such other agencies." , under 3c: "As on
potential mitigation for growth-inducing impacts,
the District considered including a condition of
approval for this project whereby all purveyors who
contract to receive water from the project would
commit to use project water first to offset their
proportionate share of overdraft, if any. However,
the District recognizes that, if this condition
were to be imposed, the individual contractors
could be considered to be relinquishing local
control of water management issues, which are more
appropriately addressed by the local governing body
having jurisdiction over such issues. Therefore,
the District hereby finds that these specific
considerations make implementation of mitigation
measure 5.6(b) in the SLO EIR infeasible. ", Section
XI, Conditions of Approval, Item W2 is deleted;
Mitigation Monitoring Program, Table 3, Growth
Inducement is not changed; page two of the
resolution is amended to add thefollowing language
under "City of San Luis Obispo": "With respect to
the Water Supply Agreement and the Water Treatment
and Local Facilities Agreement submitted by the
City of San Luis Obispo, those agreements are
hereby approved provided that (1) prior to December
1, 1992, the City of San Luis Obispo gives written
notice to the County Flood Control and Water
Conservation District (District) that said
Resolution 8001, or a similar resolution, is
unconditionally effective, and (2) the County Flood
Control District receives permission from the State
Department of Water Resources that the District may
reduce its water allocation amount by 3000 acre
feet if the City of San Luis Obispo is unable,
i'
t
s'
prior December 1, 1992, to provide the notice, and
(3) further provided that if said written notice is
not so received by the District, that said
agreements submitted by the City of San Luis Obispo
shall not be effective and the County Engineer
shall notify the Department of Water Resources to
remove 3000 acre feet per year from the total
amount of entitlement reserved for the District.";
and, RESOLUTION NO. 92-273, resolution by the San
Luis Obispo County Flood Control and Water
Conservation District certifying Environmental
Impact Reports, approving Local Facilities
Projects, making required Findings and Statement of
Overriding Considerations, imposing certain
�. conditions of approval, adopting mitigation
{ monitoring program, approving Water Treatment and
4 Local Facilities agreements,. approving Master Water
1 Treatment Agreement, and directing County Engineer
to communicate with the Department of Water
Resources, adopted, as amended. A motion by
Supervisor Blakely, seconded by Supervisor Delany
that once the agreements are completed that the. tax
rate be moved down to zero and the cost of
! maintaining the entitlement and the unallocated
freserve be shifted to those contractors entering
i into agreements with the FC&WCD, is discussed and
said motion is withdrawn. Thereafter, on motion of
Supervisor Blakely, seconded by Supervisor Brackett
1 and on the following roll call vote, to wit:
(; AYES: Supervisors Blakely, Brackett, Ovitt,
Delany, Chairperson Laurent
NOES: None
ABSENT:None