Initiatives and Referenda

In a case of first impression published on October 25, 2019,  Denham, LLC v. City of Richmond,  Cal.App.5th __ (2019) (Case No. A154759), the First District Court of Appeal agreed with a trial court that a ballot initiative to preclude development on 430 acres in Richmond’s El Sobrante Valley caused the Richmond General Plan to become impermissibly inconsistent.  But the Court reversed as to the appropriate remedy, and it ordered the trial court to issue a writ of mandate directing the City to cure the inconsistency.

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Despite well-settled limits on California’s constitutional initiative and referendum powers, the courts continue to be faced with ballot measures that test those boundaries.  We wrote about one such case—San Bruno Committee for Economic Justice v. City of San Bruno, 15 Cal.App.5th 524 (2017)—almost two years ago when the First District Court of Appeal rejected a phony special interest group and a hotel and restaurant workers’ union attempt to use the referendum process to thwart a private hotel development that would not employ union workers.  In short, the court in that case agreed that San Bruno’s adoption of a resolution to sell city property to a hotel developer was an administrative act, and thus not a proper subject of a referendum, because it implemented prior legislative actions that established the manner in which the site would be developed.

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On August 23, 2018, the California Supreme Court held, in City of Morgan Hill v. Bushey, __ Cal.4th __ (2018) (Case No. S243042), that a referendum petition to challenge a zoning ordinance amendment that would bring the ordinance into compliance with the county’s or city’s general plan is valid, even though such a referendum would temporarily leave in place zoning that does not comply with the general plan, at least if the local agency has other means to make the ordinance consistent with the plan.  The Court reasoned that such a referendum simply keeps the underlying inconsistency in place for a certain time––until the local agency can make the zoning ordinance consistent with general plan.

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On April 27, 2018, the California Attorney General published an opinion (No. 17-702) concluding that a City of Hollister resolution approving the execution of an agreement to sell real property for development, pursuant to an approved plan for disposing a dissolved redevelopment agency’s property, is not subject to referendum.

The question arose following the City’s adoption of a resolution authorizing its city manager to enter into a disposition and development agreement for the sale and development of real property that would implement the Long Range Property Management Plan approved by the oversight board and the state Department of Finance. (Interestingly, the resolution was adopted by the City Council rather than the Successor Agency, a separate legal entity charged with winding down and completing the activities of the former redevelopment agency). The project would consist of two buildings: one two-story, 9,000 square foot philanthropic center and new headquarters for the Community Foundation for San Benito County; and a second, three-story building with 8,000 to 11,000 square feet of ground floor commercial retail space and 14 to 22 condominiums.


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On February 21, 2018, in Save Lafayette v. City of Lafayette, __ Cal.5th __ (2018) (Case No. A149342), the First District Court of Appeal overturned the City of Lafayette’s decision to not place a referendum petition on the ballot to challenge a rezoning for a 44-unit single-family residential development because the referendum, if successful, would resurrect prior zoning that would be inconsistent with a recently amended general plan.  (Ironically, the City has also been sued by a group that prefers a larger, 315-unit apartment project instead).  According to the City, because the referendum is the power of the voters to approve or reject new laws, a successful referendum would cause the zoning to revert from “Single Family Residential” to “Administrative Professional Office,” thereby creating an inconsistency with the general plan’s residential land use designation, in violation of state law that requires zoning ordinances to be consistent with general plans.

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The use and abuse of the California Environmental Quality Act and the elections laws by special interests such as business competitors and labor unions is a pervasive and problematic feature of the California development process.  Although the state legislature has done little or nothing to correct this unfortunate and well-documented reality—and in fact the legislature is sometimes complicit in it, as my partner, Art Coon, and I recently wrote about here—the courts have been more willing to reject such abuses.  The First District Court of Appeal did just that in San Bruno Committee for Economic Justice v. City of San Bruno, __ Cal.App.5th __ (Sept. 20, 2017), rebuffing the efforts of a phony special interest group and a hotel and restaurant workers’ union to use the referendum process to thwart a private hotel development that would not employ union workers.

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Since California voters approved Proposition 13 in 1978 to limit property taxes, raising taxes to fund infrastructure, facilities, and services has required a vote at a general election.  In subsequent years, Propositions 62, 218, and 26 added a range of additional limitations on taxation and other forms of public finance.  Collectively, those measures have had myriad effects on the ways cities and counties accomplish the public’s business, including the “fiscalization of land use” and the creation of complicated alternative public finance techniques.

On August 28, 2017, a divided California Supreme Court issued an important new decision authored by Justice Cuéllar—California Cannabis Coalition v. City of Upland, __ Cal.5th __ (Case No. S234148)—that addresses whether constitutional measures such as Proposition 218, which limit the ability of “local governments” to impose, extend, or increase general taxes, also restrict the constitutional right of voters to impose taxes via ballot initiative.


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In The Park at Cross Creek LLC v. City of Malibu (2nd Dist. 2017), ___Cal.App.5th___ (Case No. B271620), the Court addressed the validity of a voter enacted initiative, Measure R, designed to limit large developments and chain stores.

The first component of Measure R required the Malibu City Council to prepare a specific plan for every proposed commercial or mixed use development in excess of 20,000 square feet, addressing a number of development specifics including floor area, traffic, view corridors, public facilities and the like.  Following the City Council’s approval, the plan must then be placed on the ballot for voter approval and until such approval, the City may take “no final action on any discretionary approval relating to” the development.  Moreover, once approved, all subsequent permits and approvals must be consistent with the approved development.


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We’ve come a long way since 1911, when the initiative and referendum processes were enshrined in the state constitution to address corruption in state government caused by special interests.  For some reason that reality reminds me of a scene in Seinfeld’s “The Subway” episode, which had Elaine standing on a New York subway car carrying a large present.  An older woman approaches Elaine and this dialogue ensues:

Woman: “I started riding these trains in the forties.  Those days a man would give up their seat for a woman. Now we’re liberated and we have to stand.”

Elaine: “It’s ironic.”

Woman: “What’s ironic?”

Elaine: “This, that we’ve come all this way, we have made all this progress, but you know we’ve lost the little things, the niceties.”

Woman: “No, I mean what does ironic mean?”


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