City of Lafayette Staff Report

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City of Lafayette Staff Report For:

City Coimcil

By:

Joanne Robbins, City Clerk

Meeting Date:

December 14, 2015

Subject:

City Clerk Certification of Referendum Petition to Repeal Ordinance #641

Background On September 14, 2015, the City Council adopted Ordinance #641approving a zoning amendment, a planned unit development, development agreement, a land use permit, hillside development permit, design review, grading pennit, subdivision, and tree permit for the Deer Hill Project located at 3312 and 3233 Deer Hill Road (APNS 232-150-027 & 232-140-016), A referendum petition to repeal in its entirety the legislative acts found in Ordinance #641 was filed with the City Clerk on October 14, 2015 ("Referendum"). The City Clerk submitted the Referendum to the Contra Costa County Clerk Recorder-Elections Department ("County"). The County reviewed the Referendum and verified that approximately 1,809 signatures were from registered voters, which was a sufficient number of signatures to qualify the Referendum for the ballot. The City Clerk notified the Referendum proponents on November 25, 2015 that the Referendum petition form meets the statutory requirements of the Elections Code.

Discussion Pursuant to Elections Code sections 9240, 9114 and 9115, the City Clerk, as the City's elections official, must certify the results of the examination of the Referendum Petition to the City Council at its next regular meeting after the City Clerk has determined i f the Referendum petition is sufficient or insufficient. I have verified that the Referendum petition contains the requisite number of signatures to qualify for an election, that the petition form conforms with Elections Code section 9238, and that the Referendum petition is sufficient in accordance with Elections Code sections 9240, 9114 and 9115.

Recommendation Receive and file.

City of Lafayette Staff Report For:

City Council

By:

Mala Subramanian, City Attorney

Meeting Date:

December 14, 2015

Subject:

Council Disposition on Referendum Petition to Repeal Ordinance #641

Background Ordinance #641 was adopted by the City Council on September 14, 2015 and in pertinent part amended the zoning of Parcel 27 from Administrative Professional Office to Single Family Residential District - 20 to be consistent with the City's recently adopted general plan amendment to reclassify Parcel 27 from Administrative Professional Office to Low Density Single Family Residential. The general plan amendment was adopted by the City Council on August 10, 2015 and went into effect 30 days thereafter on September 9, 2015. A referendum petition to repeal in its entirety the legislative acts found in Ordinance #641 was filed with the City Clerk on October 14, 2015 ("Referendum"). The City Clerk submitted the Referendum to the Contra Costa County Clerk Recorder-Elections Department ("County"). The County reviewed the Referendum and verified tliat approximately 1,809 signatures were from registered voters, which was a sufficient number of signatures to qualify the Referendum for the ballot. The City Clerk notified the Referendum proponents on November 25, 2015 that the Referendum petition form meets the statutory requirements ofthe Elections Code. The City Clerk submitted a certification of the Referendum to the City Council at its December 14, 2015 meeting. The City Attorney also reviewed the Referendxmi to determine whether the petition form and substance met the requirements of the Elections Code and applicable case law. Discussion Section 9(a) of Article II of the California Constitution defines the referendum as "the power ofthe electors to approve or reject statutes or parts of statutes..." This referendum power includes the right of citizens to reject ordinances adopted by the City Council. However, there are exceptions to the referendum power, including a referendum that is legally invalid. Pursuant to Elections Code section 9241, if the City Council refuses to repeal Ordinance #641, it must submit the Referendum to the voters at the next regular municipal or special election. However, existing case law provides that the City Council does not have a duty to repeal an ordinance or submit it to the electorate i f the referendum is invalid.

1. The Referendum Is Legally Invalid Ordinance #641 amends the City's zoning ordinance to be consistent with the City's general plan. (See Gov. Code §65860 [city's zoning ordinance shall be consistent with its general plan].) Thus, if the legislative act of Ordinance #641 were suspended or repealed, the City's zoning ordinance would be inconsistent with its general plan. Courts have consistently held that a referendum seeking to repeal a zoning amendment which would result in a zoning ordinance that is inconsistent with a general plan is a legally invahd referendum. (See deBottari v. City Council (1985) 171 Cal.App.3d 1204 {''deBottari"):) The City's situation is ahnost identical to the facts of deBottari. In deBottari, the city council approved a general plan amendment changing certain property from low density residential to medium density residential. Two weeks later, the city council approved two rezoning ordinances to bring the zoning on the property into conformity with the general plan. A citizens' group sought to place two referenda before the voters to repeal the rezoning ordinances. Based upon advice from their city attorney, the city council refused to repeal the rezoning ordinances or place the referenda on the ballot, deeming the referenda to be invalid. A private citizen filed a petition for writ of mandate to compel the city council to either repeal the ordinances or submit the referenda to the electorate. The court refused to overturn the city council's decision, finding that the referenda would be inconsistent with the recently amended general plan. {Id. at pp. 1210-1213.) The court instead determined that the referenda was properly excluded from the ballot, stating: "State law prohibits enactment of a zoning ordinance that is not consistent with the general plan. (Gov. Code § 65860.) Were the voters to repeal the zoning amendment at issue here, the result unquestionably would be a zoning ordinance inconsistent with the amended general plan." {Id. at p. 1210.) The court held that ~ "[a] zoning ordinance inconsistent with the general plan at the time of its enactment is 'invalid when passed.'" {Id. at p. 1212, c\im% Sierra Club v. Board of Supervisors (1981) 126 Cal.App.3d 698, 704.) The court also concluded that this was not merely a technical infirmity, "On the contrary, the requirement of consistency is the linchpin of California's land use and development laws; it is the principle which infused the concept of planned growth with the force of law. We are not persuaded that this principle must now be sacrificed on the altar of an invalid referendum." {Id. at p. 1213.^ The California Supreme Court has also invalidated initiatives that create inconsistencies between a general plan and zoning. ]nLesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, the Supreme Court reviewed an initiative that amended the zoning in the city, but did not also amend the city's general plan. The court, citing deBottari, held that "A zoning ordinance that conflicts with a general plan is invalid at the time it is passed." {Id. at p. 544.) The Court finther held that the invalidity of the zoning initiative cannot be saved hy a later amendment to the general plan. "Only the general plan in effect at the time the ordinance is adopted is relevant in determining inconsistency." {Id. at p. 545.) The Supreme Coiut then invalidated the zoning initiative. On October 21, 2015, Contra Costa County Superior Court issued an opinion in a writ petition brought by David Bruzzone and City Ventm-es, LLC against the Moraga Town Clerk and Town

Ten years latoi in Irvine v. Irvine Citizens Against Overdevelopment (1994) 25 Cal.App.4tli 868, a court again reviewed the validity of a referendum that would create an inconsistency between a city's general plan and its zoning, although in this instance the city was a charlei- city and the properly was located outside the City's boundaries, Again the courtrefusedto place a referendum on the ballot that would create an inconsislency between the zoning and the general plan

Council seeldng to keep a referendum off the ballot. The developer challenged the referendum on two grounds, a zoning designation must be consistent with the general plan and with a specific plan if one exists, as the voters may not adopt a zoning designation that is inconsistent with those planning documents and that the referendiun must contain the full text of the Ordinance. The first issue is applicable to our situation. The Court cited and followed deBottari and found that the Referendum, i f successful would cause the relevant land to revert to suburban office zoning that would be in conflict with both the General Plan and Specific Plan. The Court found the Moraga Referendum void ab initio under Government Code section 65860 and deBottari and that it should not be placed on the ballot. Here, the Referendum creates an inconsistency between the City's zoning ordinance and its general plan. The current general plan designation is Low Density Single Family Residential and the Referendum would result in a zoning designation of Administrative Professional Office that is inconsistent with the general plan. California courts have consistently invalidated zoning initiatives and referenda that create inconsistencies between zoning and the adopted general plan of a city. The inconsistency is this case, is in violation of Government Code section 65860 and deBottari and makes the Referendum legally invalid. 2. Citv Council Action on Invalid Referendum Generally, once a referendum petition containing sufficient signatures is certified, the ordinance is suspended (it does not take legal effect) and the City Council must reconsider the ordinance. I f the City Council does not entirely repeal it, the ordinance must be submitted to the voters either at a regular or a special election occurring not less than 88 days after the legislative body orders the election, and it cannot become effective unless it is upheld by a majority vote. However, as established in deBottari, the City does not have a duty to repeal Ordinance #641 or submit it to a vote ofthe electorate where a compelling showing is established that the referendum is invalid. {deBottari, supra, 171 Cal.App.3d at 1208-1209.) ]^Qr deBottari, plsicing a clearly invalid measure on the ballot serves no purpose. {deBottari, supra, 111 Cal.App.3d at 1209; Citizens for Responsible Behavior, supra, 1 Cal.App.4th at 1023.) "Judicial deference to the electoral process does not compel judicial apathy towards patently invalid legislative acts." {deBottari, supra 171 Cal.App.3d at 1213.) Therefore, because the Referendum is invalid Ordinance #641 is still in effect. 3. Options a. Citv Council Can Determine the Referendum is Invalid and Refuse to Repeal Ordinance #641 or Submit it to the Electorate The City Council can refuse to repeal Ordinance #641 or submit the Referendum to the electorate because the Referendum is invalid. This would be consistent with the facts ofthe deBottari case and what the court recently determined in Moraga. b. File an Action for Declaratory ReUef Alternatively, the City could consider filing an action for declaratory relief requesting declaratory relief from the duty to repeal Ordinance #641 or submit the Referendum to the electorate.

This occurred in Irvine v. Irvine Citizens Against Overdevelopment, 25 Cal.App.4th 868, which also has similar facts to the City's situation, hi Irvine, a referendum petition was submitted to repeal a zoning amendment that would result in an inconsistency between the city's general plan and its zoning ordinance. The Irvine city coxmcil determined, under deBottari, that the referendum was legally invalid and refused to repeal the zoning amendment or submit it to the electorate. However, unlike deBottari, the city then filed suit for declaratory relief, naming the referendum proponents as defendants and a developer impacted by the zoning amendment as real party in interest. The court upheld the city's decision, finding tlie referendum was invalid under deBottari and determining that the city had the right to sue for declaratory relief fi-om acting on an invalid referendum. While filing an action for declaratory relief is an option, we do not recommend doing so as it would require the City to sue its citizens (the Referendum proponents) and is not necessary in light of deBotarri. Recommendation We recommend that the City Council determine the Referendum is invalid for the reasons noted in this staff report and refuse to repeal Ordinance #641 or submit the Referendum to the electorate because placing a clearly invalid measure on the ballot serves no purpose. This would be consistent with the facts of the deBottari case.

Attachments 1. deBottari v. City Council of the City ofNorco 2. David Bruzzone &. City Ventures, LLC v. Town of Moraga Links 1. Sierra Club v. Board of Supervisors http://law.iustia.com/cases/cahfornia/couit-of-apt)eal/3d/126/698.html 2. Lesher Communications, Inc. v. City of Walnut Creek http://law.iustiaconi/cases/califomia/supreme-court/3d/52/531 .html 3. Irvine v. Irvine Citizens Against Overdevelopment http://law.iustia.com/cases/cahfornia/court-of-appeal/4th/25/868.html

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Service: Get by LEXSEE® Citation: 171 Cal.App.3d 1204 171 Cal. App. 3d 1204, *; 217 Cal. Rptr. 790, **; 1985 Cal. App. LEXIS 2494, *** View Official Reports PDF of This Document LOUIS A. deBOTTARI, Plaintiff and Appellant, v. CITY COUNCIL OF THE CITY OF NORCO et al., Defendants and Respondents; HOWARD HANZLIK, Real Party in Interest and Respondent No. E001608 Court of Appeal of California, Fourth Appellate District, Division Two 171 Cal. App. 3d 1204; 217 Cal. Rptr. 790; 1985 Cal, App. LEXIS 2494 Septennber 6, 1985 SUBSEQUENT HISTORY: [ * * * 1 ] As Modified September 24, 1985. Appellant's Petition for Review by the Supreme Court was Denied December 19, 1985. Bird, C. J., was of the Opinion that the Petition should be Granted. PRIOR HISTORY: Superior Court of Riverside County, No. 166246, J. David Hennigan », Judge. DISPOSITION: The judgment is affirmed. CASE SUMMARY PROCEDURAL POSTURE: Plaintiff citizen appealed an order from the Superior Court of Riverside County (California), where plaintiffs writ of nnandate was denied. Plaintiff brought suit seel Appeals > Reviewability > General Overview Governments > Legislation > Initiative & Referendum Governments > Local Governments > Elections if a proposed measure is within the scope ofthe initiative power, courts retain equitable discretion to examine the measure before the election upon a compelling showing that the substantive provisions ofthe Initiative are dearly Invalid. Shepardize: Restrict By Headnote

HN4^E\fer\

Environmental Law > Zoning &, Land Use > Comprehensive & General Plans Governments > Local Governments > Ordinances & Regulations

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Real Property Law > Zoning & Land Use > Ordinances w/v5^State law prohibits enactment of a zoning ordinance that is not consistent with the general plan. Cal. Gov't. Code § 65860. Shepardize: Restrict By Headnote Environmental Law > Zoning & Land Use > Comprehensive & General Plans Real Property Law > Subdivisions > General Overview Real Property Law > Zoning & Land Use > Ordinances H/ve^State law requires that the legislative body of every county and city adopt a comprehensive, long-term general plan for the physical development of the county or city, and of any land outside its boundaries which In the planning agency's judgment bears relation to its planning. Cal. Gov't. Code § 65300. Proposed subdivisions, together with the provisions for their design and improvements must be consistent with the general plan. Cal. Gov't. Code § 66473.5, County and city zoning ordinances must be consistent with the general plan, as well. Cal. Gov't. Code § 65860(a). Shepardize: Restrict By Headnote Governments > Local Governments > Ordinances & Regulations Real Property Law > Zoning & Land Use > General Overview «w7;^In cal. Gov't Code § 65860(a), the Legislature mandates that all zoning shall be consistent with the general plan. In Cal. Gov't Code § 65860(c), the Legislature added muscle to the provision by requiring that any ordinance which becomes Inconsistent with a general plan must be brought Into conformity, Shepardize: Restrict By Headnote Governments > Local Governments > Ordinances 8t Regulations Real Property Law > Zoning & Land Use > Initiative & Referendum HNS^See Cal. Gov't Code § 65860(c). Real Property Law > Subdivisions > Local Regulation Real Property Law > Zoning & Land Use > Judicial Review '^'^^JjTo further ensure consistency In land use decisions, the Legislature provided in Cal. Gov't Code § 65860(b), that any resident or property owner within a city or a county, as the case may be, may bring an action In the superior court to enforce compliance with the provisions of Cal, Gov't Code § 65860 (a). Shepardize: Restrict By Headnote Real Property Law > Zoning & Land Use > General Overview W ' ^ ^ ^ A zoning ordinance inconsistent with the general plan at the time of Its enactment is invalid when passed. Shepardize: Restrict By Headnote

HEADNOTES / SYLLABUS

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SUMMARY: CALIFORNIA OFFICIAL REPORTS SUMMARY

After defendant city council refused to subnnit a properly certified referendum petition to the voters on the gi-ound that repeal of a recently-enacted zoning ordinance would result in a legally invalid zoning scheme (because the resulting zoning would be Inconsistent with the general plan), plaintiff petitioned the superior court for a writ of mandate to compel defendant either to repeal the ordinance or submit Its substance to the voters. The trial court denied the petition. (Superior Court of Riverside County, No. 166246, J. David Hennigan, Judge.) The Court of Appeal affirmed, holding that the general plan was In the nature of a constitution (upon which valid ordinances must be based), that only limited amendments to a general plan were allowed, and that the plain inconsistency of the proposed zoning with the general plan justified defendant's refusal to submit to the voters a measure certain to produce an Invalid result. (Opinion by RIckies, J., with Morris, P. J,, and Kaufman, J., concurring.)

HEADNOTES

CALIFORNIA O F F I C I A L REPORTS HEADNOTES Classified to California Digest of Official Reports, 3d Series

^^^^^^{1) Initiative and Referendum § 17—Local Elections—Referendum—ProcedureZoning Ordinances—Duty of Authority to Submit I s s u e to Voters—Exceptions. Elec. Code, § 4055, imposes a mandatory duty upon a local legislative body presented with a duly certified zoning ordinance referendum petition either to repeal the ordinance at issue or submit It to the voters, unless directed to do otherwise by a court on a compelling showing that a proper case has been established for interfering with the referendum power. CA(2)^^2) Initiative and Referendum § 9—Local Elections—Preelection Validity Challenges—Exceptions. Although It is usually more appropriate to review constitutional and other challenges to ballot propositions or Initiative measures after an election rather than disrupt the electoral process by preventing the exercise of the people's franchise in the absence of some clear showing of invalidity, exceptions have been recognized where the electorate lacks the power to adopt the proposal in the first Instance (such as nonleglslative matters, matters not municipal affairs, or revisions of—not amendments to—the constitution), or where the substantive provisions o f t h e proposed measure are legally Invalid. Even where a proposed measure Is within the scope o f t h e initiative power, courts retain equitable discretion to examine a measure before the election upon a compelling showing that the substantive provisions o f t h e initiative are clearly Invalid. ^^^^^^^(3) Zoning and Planning § 10—Content and Validity of Zoning Ordinances and Planning Enactments—Comprehensive Planning—Conformity of Ordinances to General Plan. Gov. Code, § 65300, requires the local legislative body of every city and county to adopt a comprehensive, long-term general plan for the physical development of the county or city, and of any land outside the entity's boundaries which In the body's judgment bears relation to its planning. Gov. Code, § 66473.5, requires that proposed subdivisions be consistent with the general plan, while Gov. Code, § 65860, subd. (a) prohibits enactment of a zoning ordinance that Is not consistent with the general plan. General plans are more than

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studies or suggestions; they are basic land use charters governing the direction of future land use In the local jurisdiction, the immutable effect of which on landowners or the community is a result of the requirement of consistency. Zoning and Planning § 17—Enactmentr Amendment, and Repeal of Zoning Plans and Regulations—Zoning and Subdivision Ordinances and R e g u l a t i o n s Referendum Proposing Ordinance Inconsistent With General Plan—Patent Invalidity. In an action by a resident of a municipality to compel, by writ of mandate, placement of a proposed zoning ordinance referendum on the ballot, the trial court properly denied plaintiff's petition, where, because Gov. Code, § 65860, subd, (a), requires consistency between a jurisdiction's general plan and any zoning ordinances. Gov. Code, § 65860, subd. (c), requires that inconsistent ordinances be amended so as to conform to the plan within a reasonable time, and any ordinance Inconsistent with the plan at the time of its enactment is invalid when passed, defendant city council clearly and compeillngly demonstrated that approval ofthe referendum would result in a patently Invalid zoning scheme and therefore properly refused to place the referendum on the ballot. CA(4)^^^^

Zoning and Planning § 15—Enactment, Amendment, and Repeal of Zoning Plans and Regulations—Master Plans and Precise Plans—Limitation on A m e n d m e n t s Comprehensive Development Schemes. A general plan serves as the constitution for all future developments within a planning jurisdiction. Because unrestricted amendments of the general plan to conform to zoning changes would destroy the general plan as a tool for the comprehensive development ofthe community as a whole, Gov. Code, § 65361, restricts the number of amendments to the plan that may be enacted during any calendar year. Accordingly, a proposed zoning ordinance referendum that, because of its inconsistency with the general plan, would require the zoning legislative body either to reenact the ordinance overturned by the referendum, enact some alternative scheme consistent with the general plan, or amend the general plan to conform to the referendum ordinance, contemplated enactment of an ordinance that would be Invalid ab initio. CA(S)^^^y

^^r^.^^^6)- Elections § 23—Mandamus, Prohibition, and Injunction—Patently Invalid Referendum Proposal—Judicial Deference to Electoral Process. Judicial deference to the electoral process does not compel judicial apathy towards patently invalid legislative acts. Accordingly, in an action by a resident of a municipality to compel, by writ of mandate, placement of a proposed zoning ordinance referendum on the ballot, the trial court properly denied plaintiff's petition, where the proposed ordinance would be patently invalid as inconsistent with the general pian. COUNSEL: Louis A. deBottari In pro. per., for Plaintiff and Appellant, John K. Van de Kamp, Attorney General, Andrea Sheridan Ordin Chief Assistant Attorney General, Theodora B e r g e r . ^ ' , Assistant Attorney General, and David W. Hamilton, Deputy Attorney General, as Amici Curiae on behalf of Plaintiff and Appellant. Maroney, Brandt & Holdaway and Barry Brandt m-^ for Defendants and Respondents. Charies H. Carter

and Marc Levine for Real Party In Interest and Respondent.

JUDGES: Opinion by Ricietiiion being circulated. Defend Bayview answers that concern by quoting from Nelson v. Carl.wn {]99^) 17 Cal. App. 4'*' 732 in which ihe referendum petition omitted a general plan wliich "is several hundred pages long and roughly two and one-half inches thick" {Id. at 739), Merc, ihe plan was ihe resolution's focal point and was expressly made a part of it. Sociion 4052 delineates no exception lo the requirement lhai the petition contain Ihc icxt ofthe challenged legislation. If the Legislature had wanted to allow an exception Ibr bulky ordinances or resolutions it could have provide for thai situation. Nelson al 740, quoted in Defend Bayview al 854-853, The Courl finds that the Referendum fails lo comply with Elections Code § 9238. V.

Order

Tor these two separate and indej)endenl reasons, the Petition is granted. Petilioner.s siiall prepare an appropriate order pursuant lo Rule 3.1312 ofthe California Rules of Courl and Local Rule 3,54. Dale: Oclober 16. 2015

^

/ ' " ^

Barry P. Goode Judge, Superior Courl

SUPERIOR COURT OF T H E STATE OF CALIFORNIA IN AND FOR T H E COUNTY OF CONTRA COSTA

BRUZZONE Plaintiff, CASE NO. MSN15-1376

V.

MCINTURF, Defendant. C E R T I F I C A T E OF E - S E R V I C E 1, the undersigned, certify under penalty of perjury that I am a citizen ofthe United Stales, over 18 years of age, employed in Contra Costa County, and not a party to the within action; that my business address is 725 Courl Street, Martinez, California, 94553; that I served the attached OPINION AND ORDER lo all parlies on the service list electronicaHy through Tile and Serve Xpress.

declare under the penalty of peijury that llieforegoingis tiiie and COITCCI. Executed at Martinez, California, on October 16,2015. I