JOHN K. VAN DE KAMP Attorney General
JOHN T. MURPHY Deputy Attorney General
AGO 83-310
No. 83-310
California Attorney General Opinion
Office of the Attorney General State of California
August 10, 1983
THE
HONORABLE H. PETER KLEIN, COUNTY COUNSEL, MENDOCINO COUNTY,
has requested an opinion on the following questions:
1. May
a general law county's general plan be amended by the
initiative process?
2. How
many changes may be made in a general law county's
general plan each time it is amended pursuant to Government
Code section 65361?
CONCLUSIONS
1. A
general law county's general plan may be amended by the
initiative process, but such amendment must comply with the
substantive requirements for a general plan.
2.
There is no limitation on the number of changes which may be
made in a mandatory element in a general law county's
general plan each time that mandatory element is amended, but
under Government Code section 65361 no mandatory element of
the plan may be amended more frequently than three times
during any calendar year.
ANALYSIS
The
Board of Supervisors of each county is required to adopt
"a comprehensive, long-term general plan for the
physical development of the county. . . ." (Gov. Code,
§ 65300.)1 Generally, the county's planning
agency is charged with the responsibility of preparing and
maintaining such plan and of submitting its recommendations
thereon to the Board of Supervisors.[2] (§§ 65100-65102
and 65300.) The plan must contain certain mandatory elements
(land use, circulation, housing, conservation, open-space,
seismic safety, noise, scenic highway and safety) and may
also include other elements. (§§ 65302 and 65303.)
County zoning ordinances must be consistent with the general
plan. (§ 65860.)
The
adoption or amendment of a general plan is a legislative act.
Section 65301.5 so states: "The adoption of the general
plan or any part or element thereof or the adoption of any
amendment to such plan or any part or element thereof is a
legislative act which shall be reviewable pursuant to Section
1085 of the Code of Civil Procedure [writ of mandate]."
(See Arnel Development Co. v. City of Costa Mesa
(1980) 28 Cal.3d 511, 516; Karlson v. City of
Camarillo (1980) 100 Cal.App.3d 789, 799.)
The
California Constitution, in article 2, section 11, states in
part that the "[i]nitiative and referendum powers may be
exercised by the electors of each city or county under
procedures that the Legislature shall provide." The
initiative process, as set down in sections 3700-3720 of the
Elections Code, permits county voters to enact legislation
independently of the Board of Supervisors.
The
exercise of the initiative power is limited to matters which
are legislative; administrative acts are not subject to...
