City Attorney’s Office

City of Burbank

Memorandum

Date:              April 16, 2001

To:                  Honorable Mayor and Members of the City Council

From:             Dennis A. Barlow, City Attorney

Subject:        ROAR Implementation Issues

This memorandum supplements the staff report prepared pursuant to California Elections Code Section 9212 and addresses questions that the City Attorney’s office will need to resolve in order to implement the ROAR initiative in the event of its passage.  (This memorandum does not address questions of the legal validity of provisions of the Initiative under federal law.)  There are several areas of concern, and the implementation issues raised by them are detailed below.  

1.                  Supermajority Voting Requirements

On its face, Paragraphs 3, 7, and 8 of the Initiative require a 2/3 majority vote to approve Airport financing and construction or to modify the Initiative.  The California Supreme Court has ruled that “[i]nitiatives, whether constitutional or statutory, require only a simple majority for passage.”[1]  California Election Code Sections 9217 and 9222 require a simple majority of the voters to adopt an initiative before it can become an ordinance.  Similarly, an initiative can only be repealed or amended by a majority of the voters.  The City will need to determine whether it is possible to implement the ROAR Initiative in a manner consistent with the requirements of California law.

2.         Administrative Acts

Under California law, the subject matter of initiatives is limited to only legislative and not administrative acts.[2]  California law establishes an administrative process under Public Utilities Code Section 21661.6 for approval to expand a publicly owned airport.  Notwithstanding the provisions of the ROAR Initiative, that approval process apparently cannot be delegated to the voters.[3]

Moreover, because the ROAR Initiative uses the term “consent,” it also limits, restricts or forbids a number of activities that are purely administrative such as ministerial land use approvals, administrative exercise of public health and welfare functions (building permit issuance, inspection approvals) and other matters that occur in the routine course of the City's operations.  The City will need to determine if there is a way to implement the ROAR Initiative so that it does not violate California law.

3.         Limiting Discretion of Future Legislators

Paragraphs 3 and 7 of the ROAR Initiative purport to prevent future Councils from calling a special (rather than a regular) election to modify the initiative and severely limits the range of options available to future Councils in conflict with California election law requirements.  It is unclear how these provisions of the ROAR Initiative can be implemented without violating California law.

4.         Vagueness

Under California law, “[a]ll enactments should be interpreted when possible to uphold their validity and . . . courts should construe enactments to give specific content to terms that might otherwise be constitutionally vague.”[4]   However, when an initiative's language is not capable of being clearly understood, a court will strike it down:

“A vague law is offensive for several reasons.  First, the person of ordinary intelligence should have a reasonable opportunity to know what is prohibited.  A vague law may trap the innocent by not providing fair warning.  Second, a vague law impermissibly delegates the legislative job of defining what is prohibited to [the police], judges, and juries, creating a danger of arbitrary and discriminatory application.  Third, a vague law may have a chilling effect, causing people to steer a wider course than necessary in order to avoid the strictures of the law.” [5]

The following provisions of the ROAR Initiative need careful examination before implementation to determine whether they can be lawfully implemented.

            A.        EIR Definition

The ROAR Initiative states that dictionary definitions of words and terms are to be applied to the Initiative.  In plain language, the Initiative decrees that “[t]he Airport shall prepare and certify a new Environmental Impact Report for property it owns, leases or uses for Airport or Airport related purposes.”  While the term “Environmental Impact Report” is not found in the dictionary, it is often understood by lawyers to have the meaning ascribed under the California Public Resources Code.  Even applying this legal meaning, it is difficult to discern how the Airport Authority can satisfy the requirements of the Initiative.  Under California law, EIRs analyze the potential impacts of discretionary projects might have upon the environment during construction and during subsequent operations.  The Initiative appears to require the Airport Authority to prepare an EIR to analyze ongoing operations rather than for a particular project.  It is not clear how the Authority would prepare such a document and how its compliance would be measured under the law.

            B.        Master Plan

The term “Master Plan,” although capitalized in the Initiative, is neither defined in the Initiative nor found in the dictionary.  This phrase has two, equally plausible interpretations.  It could refer to a master development plan, as that phrase commonly is used and understood in California land use law.  Alternatively, it could refer to the term that is defined in FAA regulations.  Because these interpretations are both reasonable and inconsistent, the City will have to determine whether it is possible to reconcile these definitions to avoid a finding of vagueness.

            C.        Fines

Paragraph 4(k) of the ROAR Initiative requires the Airport Authority to establish a legal means to acquire the money to pay the City a fine “for each day of each violation of this initiative.”  This language is susceptible to two different interpretations.  It could require the Airport Authority to pay the City $5,000 every time the Authority (or, presumably, its users) violates the proposed curfew, caps, and aircraft restrictions in Paragraphs 4(a), 4(b), 4(c), and 4(e).  Alternatively, it could require the Authority to pay the City if the City itself fails to “vigorously enforce all provisions” of the Initiative or fails to “provide independent noise monitoring” as required in Paragraphs 5 and 6.  Paragraph 4(k) may be unenforceable because, on its face, the Initiative restricts only the powers and authority of the City; the Airport Authority cannot violate the Initiative since it imposes no obligations on the Airport Authority.  Because this provision is subject to multiple and potentially inconsistent interpretations by people of common intelligence, the City will have to determine if there is a way to implement the Initiative that harmonizes these various interpretations.

            D.        Conformity

Paragraph 8 of the ROAR Initiative provides that "[t]he City shall conform all applicable laws to this initiative.  Until the City has done so, any laws that would be affected by this initiative shall be deemed to have been conformed so as not to be in conflict with this initiative of the 2/3 vote requirement of this initiative."  The Initiative would apparently require the City Council to undertake a comprehensive review of the California and federal law, the City's Charter, all City ordinances, the ordinances of Glendale and Pasadena and the regulations of the Airport Authority and then change any inconsistent provisions identified.   Implementation of this provision is problematic.  First, the City's Charter is the preeminent law of the City and an initiated ordinance cannot direct the Council to amend the Charter.  Secondly, the City has no authority to amend, revise or repeal the laws of other jurisdictions.  The City will have to determine whether it is legally possible to comply with this provision.

5.         Severability

California courts have held that “[a]lthough not conclusive, a severability clause normally calls for sustaining the valid part of the enactment, especially when the invalid part is mechanically severable.”[6]  This principle only applies, however, if the court determines that “the remainder . . . is complete in itself and would have been adopted by [the voters] had the latter foreseen the partial invalidity of the statute . . . or constitutes a completely operative expression of legislative intent . . . and is not so connected with the rest of the statute as to be inseparable.”[7] “The test is whether is can be said with confidence that the electorate’s attention was sufficiently focused upon the parts to be severed so that it would have separately considered and adopted them in the absence of the invalid portions.”[8]  Because there appear to be many provisions of the Initiative that may be unlawful, the City will have to determine whether enough of the Initiative could withstand court challenge that the severability clause would protect the remainder of the Initiative.

cc:       Bud Ovrom

            Judie Sarquiz