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HomeMy WebLinkAboutAgenda Report - September 20, 1989 (65)E. SHUTE. Jk. M. NFK T. WL IN b k.GC 1: .!.1.F.'TA Dr. 8Ellr: Fk,-.t. M LAYTON RACHEL 5. HOOFER TO: FROM SUBJECT: SHUTE, T,SI iA U* & \VEINBEKGE A.T'rC>RA'EYS AT LAW ire H"ES srkFEr S.yN Fk_f,NCiS,�:C. C.ILIFOFLNLIS c)4102 14[5! 55.-:-7P7? 'IELEE_OY:Ek: k4151 55-2-5616 September 20, 1989 Bob W. trcNatt, Esq. city Attorney City cf Lodi TMA ELL J. W.^;" uheAN K-AN.tR WINIMEA A. SEkM-NIJ ELL -'N J. GERBER Y ENTJETH L. KDAMELL Vt vmy 5TAIJ.Su),40 Mark I. Weinberger, Esg. and Daniel P. Selmi, Esq. I ( . 1 . �' �'Qt t'�i *tee �r City of Lodi 't -f`icr W7f,l1'iG You have requested our advice on whether the City of Lodi should petition for rehearing in this matter and, I.f tnat petition were denied, petition :.he Supreme Court for review. our conclusions are as follows: ( 1) We believe that the City should petition for rehearing in the Court of Appeal. (2) We believe that a petition for review with the Supreme Court is unlikely to have much chance of success. We advise, however, that no final decision be mad@ at this time regarding any petition for review until further. discussions are undertaken with counsel for the L. y . F. E Committee concerning the -ity's liability for attorney's fees. �:*�:�k•r.�:*r.:�r!•�:��;xX*yc*irat*ic*�iic�t�*�x�cxic�c3: As you know, the Court of Appeal affirmed the �r-ial court's judgment invF idating Measure A. we believe that a request to the Court for rehearing is appropriate for reasons. First, in this case the Cit, did :-lot take the Position that treasure k on its face presented no possibility cf a conflict with state annexation law. Rather, the C;_ty argued that it had construed the measure in such a way as to avoid any conflict. W cited well-established case law to the Court that if an initiative can be construed to u_nhold its cons tituti•^nal.ity, the Court must do so. The Court's opin: cr. , however, never a---essed whether the i;Inguage of MeaSUre A COUId support the City's construction. instead, the.Cou_-t simply read the ianguage of paragraph five of the initiative, C'1C.ed.selecteu legislative history, and reached a conclusio;t on -its :leaning. It made no of—fort to det.a:.'nine r?he-z:her the IieE %si2re Bob W. McNatt, Esq. September 20, 1989 Page 2 cou.ld be interpreted to preserve its constitutionality. We believe that this failure is a serious flat: in the opinion that should be brought to the Court's attention. The Court -'s failure to address the City's construction is particularly -troubling in light of the fact that, at the oral argument, the justices emphatically raised this principle of interpre;aticn � questions to the parties. secondly, the Court's opinion seers to state that citizens have no poker to rega_re voter approval of general plan measures and zoning ordinances. ` - i s statement is overbroad and seemingly in direct conflict with other published court of api}eal opinions. In at least one other case, the court upheld an initiative that required the voters of a city to approve a 1 1 subsequent a:,-)endzients to the land use element of the city's general plan. In light of these two points, we believe that a Petition for rehearing is ::2.:.ra? ted and should be filed. h draft of the petition is attached to this memorandum. In order. far it to be filed, it Trust be sent to the Court on Thursday, September 21. With respect to petitioning the Supreme Court: for review, we do not believe that a petition for review is warranted. Obtainin; a ,rant of review in civil cases at this time is very difficult, and this case presents no issues of clear statewide importance that night cause the C^urt to grant reviec:. ?ecause the case concerns annexation procedure,, the opinion on its face is arguably consi.sterit with settled case law on the point. Thus, obtaining review would be difficult . We do not believe, however, that a renal ecislon should be fi:_dE at tris t1m:e on -whether to file a petition for review. Co -tinsel for the L. I' Cot<<;,;ittee :ill undoubtedly seek attorney' -s fees • : CL' �irC i'.^.2i 1.ng� .L:: botht:i:'. trial and appellate ccurts. anti! discussions are held "1 h- a issuer a decis1on regard ing the cL1 1-1 1 a 13 _10n _Jr review should be deferred fo: tactical reasons. DPS/j t 0021tOdiI-Jt COURT OF APPEAL FOR THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT L.I.F.E. COMMITTEE, A California Unincorporated Association, Petitio_^.er/Respondent, CITY OF LODI, A California General Law city: and DOES I through X, Respondents/Appellants. 3 Civil 2GO34 PETITION FOR REHEARING Appellant city of Lodi respectfully petitions the Court 4o grant rehearing in t h i s ratter. The Court heard oral argu:rent on March 22, 1986 and issued its opinion on September 6, 1989. In that opinion the Court concluded that the initiative in question, i.easure A, conflicted with state annexation law and therefore is invalid. Appellant respectfully subamits that the Court should grant its petition for two reasons, First, the Court's opinion conflicts with the fundamental principle for construing initiatives: if the measure can be interpreted to preserve its constitutionality, it must be so interpreted. In the present case, the City carefully interpreted and iniplErnierted measure A to avoid any conflict with state law, but ;,he Court's opinion never addresses -,,:bether the language of the _n'r i s a- _Lvue will bear that construction. Secondly, the Count's opinion could be read as holding that citizens cannot use 'heir constitutional initiative powers to recuire voter approval of ceneral plan arnendrients. That. ARGUMENT _i . THE COURT'S OPINION DOES NOT ADDRESS WHETHER D.EASURE A CAN' BE INTERPRETED '10 PRESERVE ITS CQNSTITUTIONALITY. The principal 2anguage of M�easu-.e A th a4 is at issue reads as follows: "Before land in the Green Belt area can be annexed by the City if [sicl Lodi-, an atnerd ment to the City's Land Use Element of the General Plan rust be made and approved by a majority of the people voting in a [citywide] election." The Court determined that this provision was in conflict with state annexation law. It concluded that tinder the provision, (1) "FA) favorable vote by the City's electorate allows .she annexation to g^ forward; a negative Vote stops proposed annexation in its tracks.11 Slip Opinion, _1-1,- (2) ',- (2) "If the electorate defeats a: amendment to the land use element of the general plat:, the initiative ordinance forbids annexation regardless of a. LAFCO directive to annex that is binding on the City by reason of state statutes." id. at 12; and (3) "[T]he initiative ordinance conflicts with state annexation statutes by forbidding an annexation directed by the LA -PCO if the voters reject a:; amendrient of the land use element of the general pian." -1-d. at 14. The City does :?o_ dery the;. the neasure could be interpreted to conflict ui th state law. 'W'hat it does contend is that its interpretation avoids the conflicts that the Court cites. See Appellant's Opening Er_ef, -36, 34-42; Appellant's Reply Brief, 8-16. .Specifically, the. City has, _riter'pretethe critical - language "[b)efore '_a: C it: the Green Be!-, can be annexed" as setting r f of r V : � i -cul--. i i�r r r. i 1. .. �. tee, ti..a h e ,l �r:e . ime �.�;h ch a ot. s taken, not as a 2. substantive provision empo-wering the City tc block annexations. In other words, the City foresaw the possibility that trio conflicts cited by the Court couI a occur and interpreted the measure to avoid them. The Court's opinion never addresses whether such an interpretation of t1he Language is possible_ Yet settled case laky on review of initiatives plainly requires the Court to interpret Measure A's language to preserve its con stit'Itionality. As..the., Supreme Court ernphasiz_ed earlier this year in Calfarm TnsL Co. v Deuk-me,jian, 48 Cal. 3d B05, 814 (1989) , an initiative r..ust be upheld unless its unconstitutionality "clearly, positively, and �__rmistakably appears. " I n a decision f i led just last week, T,esher �nmm� tions, I_^= Ci .Tof :-Rut Creek � Cal . App. 3d �, a f 8g Daily Journal DAR 1167$ (f-iled September 14, 1989), the Court of Appeal for the First District cited the same "principle in : construing a local lana use initiative, observing: "Thus, if at all t possible, we must interpret Measure H in such a manner as to confer validity." (slip opinion ar. �1}. In the present case, as in these decisions, if a t c nstructicn is _ v,slle tihat .:111 preserve the -measure's constitutionality., the Court .wst adopt it, ve•.: the Court's" opinion does, not impler eat Chis p` i nciple _ it never addresses. Whether Measure A which calls fol" a vote on a general In amendment rather than n annex i z:an be construe const. avoid constltut iona1. 'aroy'len . The opilnio . Bever addresses „hether the language of the will support the City's interpretation NS Well ets the Gne adc;pted 1_:: he Co?.ems t, amd! it- never analvies the evidence in the record aned the legislative history of the measure which supports the City's interpretation. The City presented uncontradicted evidence that it had adopted a construction of Leasure A to avoid the constitutional difficulties cited by the Court. Ey failing to examine the initiative in 'Light of this evidence, the Court's opinion conflicts with settled law on the interpretation of initiatives. II. THE COURT'S C1SCL'SSION OF T::L ITTZEf':S' RIGHT T0. REQUIRE VOTER APPROVAL OF GENERAL .PLAN "AI�:E2JB-:ENTS COI:FLTCTS WITH PRIOR CASE . LAW ON THIS POINT. in discussing i -another :,easure A conflicts with state law on annexations, the court ?node the following statement: Moreover, the mochanism in the o.:dinance for elector coi,trol over annexation 6eci.si.ons is itself beyond the scope of the initiative power_. State land use planning laws grant legislative power to the city to enact a general plan and zoning ordinances. (Gov. Code, §g 651.00-65910.) The city council may not condition t ::is pa:YeY by enacting an ordinance requiring voter approval of such measures. A fortiori neither may the electorate through the initiative fetter the exercise of the legislative power conferred by the statures governing, lana ;lse. Slip Opinion, 15.. The cou t. thus. atiparently called into question %rote'rs hay.'_ t::e under S`al:e general plan law t0 require voter approval c) f generr l pian a.;endments. This statement. conf l _,.ts with o --her case law which has held that the citizens dc. In Lee v. Cit%' of. 1731 C:a r ). u 7n;; ' j c` tlif: cou-_ upheld clic i � 'Y Y in.', tiative that c:` c; c:i t-: a -r_,— 'ove all subsequent amend'mentr_ ;,o the 1a: ,`n ur_ a],enient of thy= city's pian.t)hat C:G�C- t_I t:F.IT_� L. r. _FC1F.:' C:.... i.iil� ✓`1 .LJ ii`i �n _ - improperly invoked the referendum power without complying with the procedures for referenda set forth in tho E-_ections Code. The Court disagreed, finding "no difference between an initiative ordinance which precludes an amendment and one which permits amendments but requires voter approval to become effecti�=e.'I id. at 812; see also dost v. Thonas, 36 Cal. 3d 561, 570 (1 984 Unless the Court clarifies this statement, its opinion krill i n;ect inconsistency into state lau on the powers of citizens to exercise planning rights through the initiative process. The City respectfully submits that the Court should rehear.this matter or, at a nliniinum, modify its opinion to dele-te this language:. CONCI_U TOT -IT In Lesher v City of 141alnut_.reek, _ Cala App., 3d.-.' 89 Daily Journal BAR 11676, the First District Court of Appeal could have construed an initiative as either an amendment to-tYie',City.'s general plan, a constructi%r. 1 -hat would avoid placing. the measure's validity in doubt, or as a zoning ordinance, a construction.that would give rise to doubts about its seaality. The Court :iel.d what "to confer✓a?iaitv: the i::i:iatv2 :Iil2St he construed as a'general plan anencmen t becwuse it c_,i ..e so ccr.stru d . " Id at 11685 (e;P.nhasis 41 r i gina1 E Respondent City of Lodi respectfully. 5. requests that the Court should grant its pe-itior. for rehearing in the present case and apple this to Measure A. DATED : Respectfully submitted, MARK I. WIEINBERGER UTE, AIIIIALz u - EINBERGER DANIEL P. SEI -MI By DAMSEL P. SEL?:I �z`orneys for Respondent/Appellant Gel /Iodtl.jz 5.