Proposition E, passed by the voters as an initiative in 1986, established a growth management plan (GMP) by ordinance 9808 that required “performance standards” for ensuring that the city has adequate infrastructure and amenities. Those standards were adopted in resolution 8796. Prop E. stated that “The City Council or the Planning Commission shall not find that all necessary public facilities will be available concurrent with need as required by the Public Facilities Element and the City’s 1986 growth management plan unless the provision of such facilities is guaranteed”.

NCA filed suit against Carlsbad in 2019 for violating facilities standards for traffic circulation, parks and open space. Attorneys for Carlsbad managed to delay the trial until summer, 2023 at taxpayer’s expense. Following 5 days of testimony, the court agreed that the city failed and is currently failing to meet all three of these 1986 performance standards. When the city’s roads and intersections became too congested it either modified the standards or “exempted” failing roads and intersections. Similarly, the city “exempted” 11 of the 25 zones of the city from open space standards. The court doubted that this is what citizens had in mind when they voted to approve Prop, E.

Ordinance 9808 allowed for amendments and the GMP has been amended every 5 years since 1986. It still includes the original performance standards. The city argued at trial that their right to amend the GMP is unconstrained so whatever they’ve done is legal They cited two CA supreme court decision in particular: “People vs Cooper” and “County of San Diego vs Commission on State Mandates.”

Unfortunately, the court agreed that those cases were relevant and felt that they set precedents requiring the judge to rule for the city even though he agreed with all NCA’s claims. But that decision rendered both the citizen’s initiative (Prop. E) and the GMP meaningless.

“This ruling is a flashing red warning to citizens throughout the state. This is no longer simply about the kind of community Carlsbad will be in 20 years or 50 years. It is about preserving the integrity of our vote and preserving our system of governance. This is a fight we must wage and win together.” DeAnn Weimer

NCA’s attorneys believe our case was wrongly decided and there are ample legal grounds to appeal. The growth management ordinances established by Prop E can and often must be amended but only in furtherance of the intent of Prop E. They may not be amended to circumvent the requirements of Prop E and the will of the voters who passed it. The cases cited by the city and used against NCA in fact support NCA’s position regarding amendments.

Both cases are complex, nuanced and may not be entirely relevant, however they do deal with issues of how legislation interacts with citizen’s initiatives. In simplistic terms, People vs Cooper questioned whether the legislature could modify some terms of a citizen’s initiative and only ruled that it could because those changes did not reduce the intent of the initiative. County of San Diego vs Commision on state mandates came to a similar conclusion in allowing legislation that did not materially affect the application of an initiative. Other and even more recent cases uphold the primacy of citizen’s initiatives and those initiative aims are to be interpreted broadly. From our post trial brief: The CA Supreme Court ruled: “The evident purpose of limiting the Legislature’s power to amend an initiative statute is to protect the people’s initiative powers by precluding the Legislature from undoing what the people have done, without the electorate’s consent.” 6 Cal.5th at 211 (quoting Shaw v. People ex rel. Chang (2009) 175 Cal.App.4th 577, 597). As the decision in People v. Superior Court (2019) 42 Cal.App.5th 279, observed: “[T]he voters should get what they enacted, not more and not less.” Id. at 288 – 89.

NCA has begun gathering support from other groups and soliciting donations for the appeal. Our attorneys have begun related legal research and will bolster their eventual submission with amicus briefs. The appeal may not be heard for at least a year. Delays favor the city since they can go on building and violating the GMP as usual. If NCA manages to win on appeal, the city can delay further by appealing to the CA Supreme court. Fortunately, the current supreme court has been more favorable to environmental concerns than local courts, but nothing is assured, and everything involves time and money. NCA’s attempts to negotiate with Carlsbad have been ignored. The city continues to spend its efforts and taxpayer money opposing the will of the citizens they are supposed to be serving.

“Every Carlsbad resident who has asked repeatedly over the decades for more open space and parks near their homes for them, their children and grandchildren to better enjoy the natural splendor Carlsbad offers should be ready to help NCA continue the battle.” Pat Bleha, founder and president of North County Advocates (NCA).