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HomeMy WebLinkAbout06 - San Joaquin Hill Transportation Corridor (SJHTC) Joint Powers Agreement (JPA)CITY OF NEWPORT BEACH OFFICE OF THE CITY ATTORNEY MEMORANDUM July 15, 1994 TO: Mayor Clarence Turner Members of City Council FROM: Robert H. Burnham AGENDA N0. b L7�) 0011) -2SyS E3Y THE CITY CO i CITY OF NEWPORT JUL 2 51994 f -F SUBJ: San Joaquin Hill Transportation Corridor (SJHTC) Joint Powers Agreement (JPA) 1. REQUEST: You have ,asked me to reevaluate a previously issued opinion that the City Council was empowered to approve the SJHTC JPA and related Fee program without submitting the matter to the electorate pursuant to § 422 of the Newport Beach City Charter (copy of October 17, 1985 Opinion is attached). 2. CHARTER PROVISION: Section 422 of the Charter was adopted by the voters at the same time they overwhelmingly rejected construction of the Coast Freeway. The Measure adopted by the voters reads as follows: "Section 422. Freeway and Expressway Agreements; Connection with Freeways; Vote of _Electors Required for Approval. Unless- and nless and until approved by a majority of the City's electors voting at a general or special election, the City shall not enter into an agreement or contract with the State of California or any other government or department, subdivision, agency or commission thereof (1) allowing construction of a freeway or - expressway which would be in whole or in part within the boundaries of the City, or (2) to close any City street at or near the point of its interception with any freeway or expressway or to make provision for carrying such City street over or under or to a - -connection with the freeway or expressway or to do any work on such City street as is necessary therefor." 3. PRIOR OPINION• A. INTENT OF THE VOTERS In 1985, I concluded that § 422 was not intended to affect the Route 73. Freeway. While this statement may be true, the intent of the voters in approving § 422 of the Charter would not be relevant unless there is some ambiguity in the Measure or its application. The obvious connection between voter approval of § 422 and voter rejection of the Coast Freeway does not prevent application of the Charter to other appropriate freeway or expressway projects. . B. MEASURE L I also concluded in my previous opinion that any voter approval necessary for city participation in the SJHTC JPA was granted by the voters in 1980 with the approval of Measure L. Armed with a better understanding of the project, I reviewed all of the material submitted in conjunction with Measure L, including documents prepared by the City explaining the scope of the Measure to the voters.: I now. believe approval of Measure L did not authorize agreements relative to the SJHTC. The general alignment. of the "proposed transportation corridor" is shown on Measure L material but the voters were asked only -to approve the extension of the 73- Freeway from Campus Drive to MacArthur. C. PREEMPTION In 1985, I concluded that "Section 422 of the Charter may be preempted by State law . . .." I referenced a trial court decision that the urgency Measure adopted by the State legislature to facilitate planning and construction of the three major Orange County transportation- corridors invalidated a proposed Irvine initiative that would have required electoral approval of any ordinance or resolution imposing fees to fund construction of the SJHTC. The Supreme Court ultimately concluded the proposed.Irvine initiative was preempted by .State law and that ruling would, in my opinion, preclude application of § 422 to any decision of the City Council pertaining to the funding of implementation of the SJHTC (Committee of Seven Thousand (COST) 7000 v. Superior Court 45 Cal 3d 491)-. • 0 D. VOTER APPROVAL REQUIREMENT INVALID AS TO CORRIDOR The Supreme Court's ruling that the statute dealt with matters of statewide concern did not automatically invalidate the proposed Irvine initiative. However, the Court also ruled that the statute constituted a grant of authority together with procedural restrictions which precluded exercise of the powers of initiative and referendum. The statute delegates specific authority to "city councils" and that designation, when combined with the regional nature of the subject matter, persuaded the court that the legislature intended to prohibit exercise of the initiative by the electorate. Accordingly, .the Newport Beach City Council was free to make decisions relative to the SJHTC without compliance with § 422 of the Charter and the Superior Court would have the authority to issue a writ commanding the City not to place such matter on the ballot. S. IMPACT OF DECISION IN COST .ON 9 422 The decision of the Supreme Court in COST does not invalidate § 422 of the Charter but the concepts embodied in the decision suggest that the requirement for electoral- approval of freeway and expressway agreements may have limited applicability. The Attorney General has concluded that: "the .electorate of municipality is not empowered to invoke the provisions of the initiative of referendum in order to designate the location of or construction of State highway routes located or to be located within the jurisdictional confines of the municipality" (11 Ops. Attorney General 193) In reaching this conclusion, the Attorney General considered the provisions of the Streets and Highways Code that, with very- :limited .exceptions, .require ttfe= Department of Transportation to enter into a agreement with the city council of the affected municipality prior to closing any city street by constructing a freeway (§ 100.2 Streets and Highways). The Attorney General concluded that a city council or board of supervisors entering into a street closure agreement with Caltrans was acting in an- administrative capacity and "as a designated agency.of the State." This opinion is relatively old and there have been changes in the law since, but the importance of State highways and the specific reference to city councils in §.100.2 suggest that § 422 of - the - Charter may be inapplicable to other regional transportation projects. While § 422 of the Charter may have limited application, the provisions are drafted in a way that maximizes their effectiveness. The State has granted cities limited power over freeways and § 422 focuses on that specific area of authority. 6. CONCLUSION In summary, § 422 of the Charter is inapplicable to decisions of the City Council relating to the STHTC. The Charter may be inapplicable to other State highway projects but we cannot envision any amendment that wo ld make the language more effective. Robert H. Burnham City Attorney . RHB:gjb SJHTCop.JW