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.
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.
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.
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.
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?”
On February 28, 2017, just six days after oral argument in Wilson v. County of Napa, __ Cal.App.5th __ (2016) (Case No. A149153), the Court of Appeal for the First Appellate District affirmed a trial court decision in favor of the County of Napa, whose registrar of voters refused to place a land use initiative on the ballot because the initiative petition failed to include the “full text” of the measure. My partner, Art Coon, successfully represented the County in the action.
On January 5, 2017, the Court of Appeal for the Fourth Appellate District partially published Hernandez v. Town of Apple Valley, __ Cal.App.5th __ (2016) (Case No. E063721). The published portion of the opinion addresses important issues arising in connection with alleged violations of both the Ralph M. Brown Act and California Constitution. In particular, the case centered on an allegedly defective agenda description for a land use initiative to amend a specific plan to allow a 30-acre commercial development anchored by a Walmart Supercenter.