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California Court of Appeal Upholds Referendum Petition that Did Not Attach Interrelated General Plan Provisions

California Court of Appeal Upholds Referendum Petition that Did Not Attach  Interrelated General Plan Provisions
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The Fourth District Court of Appeal held that a referendum petition that incorporated all of the text of a General Plan amendment that it sought to prevent did was not required to include relevant portions the General Plan not expressly incorporated by reference into the General Plan amendment resolution. The court also held that the referendum was not unlawful although it did not challenge two additional legislative acts, including a specific plan adoption, and zoning classification change, that were dependent upon the General Plan amendment. [Molloy v. Vu, ___Cal.App.5th___, Case No. DO75593 (4th Dist. 2019).]

Factual and Procedural Background

In 2015, developer Newland Sierra sought to develop a 1,985 acre site north of San Marcos into a mixed-use community with 2,135 homes, 81,000 square feet of commercial space, a six-acre school site and other amenities. In 2011, San Diego County adopted a new General Plan that designated the site “rural” and also as adopted the North County Metropolitan Subregional Plan, which included the site and implemented the General Plan’s goals and land use designations.

Under the General Plan’s housing element, the “rural” land use designation had the lowest densities in the County, allowing for one dwelling for every 20 to 80 gross acres. This density limit was prohibitive of the planned development, meaning that at a minimum, Newland Sierra would need to seek amendment of the San Diego County General Plan to complete the project.

Newland Sierra filed an application with the county to amend the General Plan, create a specific plan for the site, and change the site’s zoning classification. Despite substantial public opposition, on September 26, 2018, the county board of supervisors performed the following legislative acts: 1) adopted a resolution approving a General Plan amendment, 2) adopted a resolution approving a specific plan for the site, and 3) adopted a change of the site’s zoning classification.

Soon thereafter, a neighborhood group named Golden Door began circulating a referendum petition to prevent the General Plan amendment from taking effect. The referendum petition contained the entire 66-page General Plan amendment resolution, however it did not contain the land use designation descriptions from the General Plan that would remain in effect if the General Plan amendment was overturned. Moreover, the referendum petition did not seek to rescind the related specific plan and zoning designation change for the project. Within 30 days of the board’s decision, Golden Door secured 95,000 “projected valid” signatures, well in excess of the of signatures required to place the General Plan amendment on a ballot.

At the Superior Court

Thereafter, Newland Sierra filed a petition in Superior Court challenging the referendum petition. Among other things, the petition alleged that Golden Door’s referendum petition violated the full text rule in § 9147 of the Elections Code for failing to attach the land use designations from the General Plan. The petition also alleged that the referendum violated Government Code §§ 65454, 65860, and 65862 for repealing the General Plan amendment without repealing the related specific plan adoption and zoning classification change. The trial court denied the petition in its entirety.

On appeal, Newland Sierra raised the same allegations discussed above.

The Court of Appeal’s Decision

The Full Text Rule

Regarding Newland Sierra’s claims related to the full text rule, the court looked at the text of the statute and the case law interpreting it. Elections Code § 9147 subpart (b) generally requires that:

“. . .[e]ach section of [a] referendum petition shall contain the title and text of the ordinance or the portion of the ordinance which is the subject of the referendum.”

Case law interpreting this provision provides that a valid referendum petition must contain the full, complete text of the challenged legislation, including documents and exhibits physically attached to the legislation when adopted. In addition, a valid referendum petition must contain documents expressly incorporated by reference into the challenged legislation.

The court was especially persuaded by a 2009 court of appeals case titled Lin v. City of Pleasanton, 176 Cal.App.4th 408 (2009). The Lin case held that the text of a law challenged by a referendum does not include documents referenced within the law but not physically attached to the ordinance or specifically incorporated by reference. Accordingly the court in this case noted:

“The Elections Code requires the text of the ordinance being challenged [to be included in a referendum petition], not the inclusion of additional information a conscientious voter might want to know before signing the petition.”

The court noted that Elections Code § 9147 subpart (b) sets out a clear, objective rule requiring only the text of the ordinance, exhibits physically attached to the ordinance, or expressly incorporated by reference, be included with referendum petitions. This clear and objective rule protects citizens’ rights of referendum and guides clerks in their ministerial duties to process such petitions.

Accordingly, the court rejected Newland Sierra’s arguments, holding that Golden Door was not required to attach the General Plan’s descriptions of land use designations. As the court noted:

“. . .[t]he purpose of the full text requirement is to make sure that prospective signers have adequate information about the substance of the proposed law to make an informed decision about whether to sign the referendum petition. In all but the most extreme situations this purpose is fulfilled by construing the ‘test’ to include the language of the ordinance itself, pus any documents attached as exhibits or expressly incorporated by reference.”

Legality of Challenging One of Several Legislative Acts

The court next addressed Newland Sierra’s allegations that the referendum petition was legally invalid because it only challenged the board of supervisors’ September 26, 2018 General Plan Amendment, and not the two related legislative acts on the same date. Newland Sierra argued that the referendum petition needed to challenge these actions, because the specific plan and zoning designation change would be inconsistent with the General Plan if the General Plan amendment was overturned.

The court noted that it could not find any authority to support Newland Sierra’s argument. Instead, the court was persuaded by a 2018 state supreme court case City of Morgan Hill v. Bushey, 5 Cal.5th 1068 (2018). The Bushey case noted that there are reasons why supporters of a referendum and its electors may wish to protest one legislative act and not an associated legislative act.

Ultimately the court concluded: “[a]dhering to our policy of liberally construing referendum petitions in favor of their sufficiency, we conclude that it was an acceptable course of action for proponents to challenge only the GPA resolution through referendum.”

Due to ongoing related litigation, the court did not decide what would happen to the related specific plan adopted and zoning amendment if the General Plan Amendment is voted down when the referendum is placed on the ballot in March of 2020. However the court noted that:

“[t]he answer may be… that the specific plan resolution and rezoning ordinance were void ab initio because their adoption was neither conditioned on the effectiveness of the GPA resolution nor consistent with the General Plan in effect at the time.”

Conclusion and Implications

The Molloy decision highlights state courts’ policy of liberally construing referendum petitions in in favor of their legality. Referendum petitions challenging the legislative acts of a local legislative body must incorporate the text of the ordinance, or portion of the ordinance being challenged. Such referendums must also include any relevant exhibits attached to such ordinance, or other documents expressly incorporated by reference into the ordinance. A referendum petition is not necessarily invalid if it only seeks to invalidate one of multiple interrelated or interdependent legislative acts.

(Travis Brooks)