Modesto Bee
October 16, 2015

Ceres officials have pointed out a flaw in the Measure I initiative in Modesto, and it has raised new questions about whether the city could defend the initiative in court if it’s approved by voters next month.

The southern boundary for Measure I’s urban limit includes a portion of Ceres, on the north side of Whitmore Avenue, between Morgan Road and Highway 99.

Mayor Chris Vierra said Ceres residents cannot vote on the measure, it has nothing to do with the small city, and none of the city should be in Measure I’s boundaries.

Vierra said he pointed out the error on the Measure I map to author Denny Jackman a year and a half ago. He mused that an earlier version of the diagram took the boundaries into downtown Ceres and possibly included City Hall.

“He did not pay attention to it and blew it off,” Vierra said. “I definitely had our city attorney look into it to make sure it does not impact us.”

The measure on the Nov. 3 ballot takes in an area west of Highway 99 that includes Fairview Industrial Park, Ceres Memorial Park cemetery and some undeveloped land. Some of the land is zoned for development, and there are land-use applications for some of the property at City Hall, Vierra said.

Measure I would draw an urban limit around Modesto with an aim to, once and for all, settle disputes over city growth, farmland protection and potential development of Wood Colony, west of the city. Essentially, any development outside the urban limit would require the approval of Modesto voters.

Serious questions have focused on the quality of the hard-to-read, hand-drawn boundary map that Jackman submitted to the city. There is no diagram of the boundaries in election pamphlets for voters to consider. And now it turns out part of Ceres was placed within the proposed urban limit.

Given the history of land-use battles in Modesto, the city could be faced with defending the measure against property owner lawsuits, costing hundreds of thousands of dollars at taxpayers’ expense.

Modesto Mayor Garrad Marsh said Friday he knows enough to conclude Measure I policies cannot apply to Ceres. He said technical questions about flaws in the map or the quality of the ballot materials should be directed to staff experts or the city attorney.

Councilman Bill Zoslocki, who opposes the measure, said it appears the proponents’ hand-drawn map and ballot initiative were hastily prepared. On Friday, he wanted the city to seek legal advice on the validity of the initiative.

“Our city attorney needs to review it and tell us what our options are as a city,” Zoslocki said. The mistakes in the initiative would have been caught if the proponents had held workshops and engaged more community members “in deciding what is best for the future of Modesto,” Zoslocki said.

Jackman said including the piece of Ceres was not a mistake. He said he purposely used the entire length of Whitmore Avenue, west of the freeway, as the southern boundary for simplicity.

The ballot measure has no bearing on Ceres because the anti-sprawl protections are not about what can happen inside the urban limit area, Jackman said. The goal is to prevent destruction of farmland outside the urban limit.

“Modesto will not develop beyond that boundary unless voters give approval,” Jackman said. “It has nothing to do with the opportunity to develop in Ceres or the county.”

Ceres City Manager Toby Wells said he asked for an opinion from Ceres’ legal staff and was told the measure can have no affect on Ceres. Modesto voters have no jurisdiction over the city, he explained.

Measure I faces opposition from city police and firefighter unions, the Modesto Chamber of Commerce, the Latino Community Roundtable and other labor groups, who claim it would prevent Modesto from expanding its economic base and adequately funding public services.

If the initiative is approved next month and is challenged in court, it would not be the first time voter-approved land-use policies have gone to court.

Stockton attorney Steve Herum has worked on voter initiative cases, including a Lodi measure overturned by a state appeals court in 1989. The Lodi initiative had required voter approval for a general plan designation before property owners could seek to annex and develop their land. The appeals court ruled it was unconstitutional.

That decision seems applicable to what Measure I proposes, Herum said.

In his opinion, lawsuits over Measure I would consider whether it imposes “clear and unambiguous” regulations on property owners. “You have to know how and when you must abide by the initiative or follow its rules,” Herum said. “You can’t just draw a map on the back on a napkin on the kitchen table and say this is now the rule.”

Herum said the condition of the hand-drawn map that Jackman gave to the city seems critical in deciding where the initiative applies to landowners and where it does not. Plaintiffs would try to show the map is incompetent and not a reliable tool to implement the initiative, he said.

Herum said city officials have little opportunity to change a proposed citizens initiative before the election, but can do a study on the economic effects of the initiative. City Attorney Adam Lindren said if there’s a court challenge after the election, the court will decide the validity of Measure I.

Attorney Steve Churchwell of Sacramento said local voter initiatives are sometimes challenged over compliance with the Elections Code. Because the courts are charged with safeguarding the initiative process, the standard for those cases is whether there was “substantial compliance” with law.

Some cases concern whether people who signed an initiative petition understood what it said. Other cases focus on what’s put on the ballot, he said.

Churchwell said courts don’t expect petitioners to spend significant dollars on a professional firm to draw boundaries. “The main thrust in a measure dealing with property is you need to be fairly precise,” the attorney said. “Could the average voter figure it out?”

Wells, the city manager of Ceres, said there’s no way to remove Ceres from Measure I because it’s a citizens initiative.

Vierra said the city has tempered its protest so it doesn’t seem to favor massive development, but “the line is not correct.”