Associated Home Builders etc., Inc. v. City of Livermore

Decision Date17 December 1976
Docket NumberS.F. 23222
Citation18 Cal.3d 582,135 Cal.Rptr. 41
CourtCalifornia Supreme Court
Parties, 557 P.2d 473, 92 A.L.R.3d 1038, 7 Envtl. L. Rep. 20,155 ASSOCIATED HOME BUILDERS OF the GREATER EASTBAY, INC., Plaintiff and Respondent, v. CITY OF LIVERMORE et al., Defendants and Appellants. In Bank

Richard J. Fink, Berkeley, as amicus curiae on behalf of defendants and appellants.

Robert C. Burnstein, Oakland, for plaintiff and respondent.

TOBRINER, Justice.

We face today the question of the validity of an initiative ordinance enacted by the voters of the City of Livermore which prohibits issuance of further residential building permits until local educational, sewage disposal, and water supply facilities comply with specified standards. 1 Plaintiff, an association of contractors, subdividers, and other persons interested in residential construction in Livermore, brought this suit to enjoin enforcement of the ordinance. The superior court issued a permanent injunction, and the city appealed.

In Hurst v. City of Burlingame (1929) 207 Cal. 134, 277 P. 308, we held that statutes requiring notice and hearing to precede enactment of municipal zoning and land use ordinances applied to initiatives, a holding which effectively denied voters of general law cities the power to enact such legislation by initiative. In accord with that precedent, the trial court here held that Livermore, as a general law city, lacked authority to enact the initiative ordinance at issue. We have concluded, however, that Hurst was incorrectly decided; the statutory notice and hearing provisions govern only ordinances enacted by city council action and do not limit the power of municipal electors, reserved to them by the state Constitution, to enact legislation by initiative. We therefore reverse the trial court holding on this issue.

We also reject the trial court's alternative holding that the ordinance is unconstitutionally vague. By interpreting the ordinance to incorporate standards established by the Livermore Valley Joint School District and the Regional Water Quality Control Board, we render its terms sufficiently specific to comply with constitutional requisites. The failure of the ordinance to designate the person or agency who determines when its standards have been fulfilled does not make it unconstitutionally vague; the duty to enforce the ordinance reposes in the city's building inspector, whose decisions are subject to judicial review by writ of mandamus.

Finally, we reject plaintiff's suggestion that we sustain the trial court's injunction on the ground that the ordinance unconstitutionally attempts to bar immigration to Livermore. Plaintiff's contention symbolizes the growing conflict between the efforts of suburban communities to check disorderly development, with its concomitant problems of air and water pollution and inadequate public facilities, and the increasing public need for adequate housing opportunities. We take this opportunity, therefore, to reaffirm and clarify the principles which govern validity of land use ordinances which substantially limit immigration into a community; we hold that such ordinances need not be sustained by a compelling state interest, but are constitutional if they are reasonably related to the welfare of the region affected by the ordinance. Since on the limited record before us plaintiff has not demonstrated that the Livermore ordinance lacks a reasonable relationship to the regional welfare, we cannot hold the ordinance unconstitutional under this standard.

1. Summary of proceedings.

The initiative ordinance in question was enacted by a majority of the voters at the Livermore municipal election of April 11, 1972, and became effective on April 28, 1972. The ordinance, set out in full in the margin, 2 states that it was enacted to further the health, safety, and welfare of the citizens of Livermore and to contribute to the solution of air pollution. Finding that excessive issuance of residential building permits has caused school overcrowding, sewage pollution, and water rationing, the ordinance prohibits issuance of further permits until three standards are met: '1. EDUCATIONAL FACILITIES--No double sessions in the schools nor overcrowded classrooms as determined by the California Education Code. 2. SEWAGE--The sewage treatment facilities and capacities meet the standards set by the Regional Water Quality Control Board. 3. WATER SUPPLY--No rationing of water with respect to human consumption or irrigation and adequate water reserves for fire protection exist.'

Plaintiff association filed suit to enjoin enforcement of the ordinance and for declaratory relief. After the city filed its answer, all parties moved for judgment on the pleadings and stipulated that the court, upon the pleadings and other documents submitted, could determine the merits of the cause. On the basis of that stipulation the court rendered findings and entered judgment for plaintiff. The city appeals from that judgment.

2. The enactment of the Livermore ordinance by initiative does not violate the state zoning law.

The superior court found that the initiative ordinance was adopted 'without complying with the statutes . . . governing general law cities,' specifically Government Code sections 65853 through 65857. These sections provide that any ordinance which changes zoning or imposes a land use restriction listed in Government Code section 65850 can be enacted only after noticed hearing before the city's planning commission and legislative body. 3 The superior court concluded that notice and hearing must precede enactment of any ordinance regulating land use. Since Livermore passed its ordinance pursuant to the procedures specified in the statutes governing municipal initiatives (Elec.Code, § 4000 et seq.), which do not provide for hearings before the city planning commission or council, the court held the ordinance invalid.

The amendment of the California Constitution in 1911 to provide for the initiative and referendum signifies one of the outstanding achievements of the progressive movement of the early 1900's. 4 Drafted in light of the theory that all power of government ultimately resides in the people, the amendment speaks of the initiative and referendum, not as a right granted the people, but as a power reserved by them. 5 Declaring it 'the duty of the courts to jealously guard the right of the people' (Martin v. Smith (1959) 176 Cal.App.2d 115, 117, 1 Cal.Rptr. 307, 309), the courts have described the initiative and referendum as articulating 'one of the most precious rights of our democratic process.' (Mervynne v. Acker, supra, 189 Cal.App.2d 558, 563, 11 Cal.Rptr. 340, 344). '(I)t has long been our judicial policy to apply a liberal construction to this power wherever it is challenged in order that the right be not improperly annulled. If doubts can reasonably be resolved in favor of the use of this reserve power, courts will preserve it.' (Mervynne v. Acker, supra, 189 Cal.App.2d 558, 563--564, 11 Cal.Rptr. 340, 344; Gayle v. Hamm, supra, 25 Cal.App.3d 250, 258, 101 Cal.Rptr. 628.) 6

The 1911 amendment, in reserving the right of initiative to electors of counties and cities, authorized the Legislature to establish procedures to facilitate the exercise of that right. 7 Accordingly the Legislature enacted statutes, now codified as sections 4000--4023 of the Election Code, providing for the circulation of petitions, the calling of elections, and other procedures required to enact an initiative measure.

The 1911 amendment was first applied to zoning matters in 1927 in Dwyer v. City Council, supra, 200 Cal. 505, 253 P. 932, in which the court mandated the Berkeley City Council to submit a zoning ordinance to referendum. The opinion reasoned that since the city council had the legislative authority to enact zoning ordinances, the people had the power to do so by initiative or referendum. Rejecting an argument that the referendum procedure denied affected persons the right, granted them by municipal ordinance, to appear before the city council and state their views on the ordinance, the court replied that 'the matter has been removed from the forum of the Council to the forum of the electorate. The proponents and opponents are given all the privileges and rights to express themselves in an open election that a democracy or republican form of government can afford to its citizens . . .. It is clear that the constitutional right reserved by the people to submit legislative questions to a direct vote cannot be abridged by any procedural requirements . . ..' (200 Cal. at p. 516, 253 P. at p. 936.)

Two years later the court decided Hurst v. City of Burlingame, supra, 207 Cal. 134, 277 P. 308, the decision on which the trial court in the instant case based its ruling. The City of Burlingame had enacted by initiative a city-wide zoning ordinance which classified as residential the property where plaintiff had a retail store. Contending that he had been denied the right to a public hearing established in the Zoning Act of 1917 (Stats.1917, p. 1419), plaintiff sued to enjoin enforcement of the ordinance. Beginning with the premise that 'an ordinance proposed by the electors of a county or of a city in this state under the initiative law must constitute such legislation as the legislative body of such county or city has the power to enact . . .' (207 Cal. at p. 140, 277 P. at p. 311), the Hurst court reasoned that since the board of trustees of the City of Burlingame could not lawfully enact a zoning ordinance without complying with the hearing requirement of the state law, the voters could not adopt such an ordinance by initiative.

Responding to the argument that the enactment of the ordinance complied with the state initiative law, the court stated that 'The initiative law and the zoning law are hopelessly inconsistent...

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