Builders Assn. of Santa Clara-Santa Cruz Counties v. Superior Court, CLARA-SANTA

CourtUnited States State Supreme Court (California)
Writing for the CourtTOBRINER; WRIGHT; BURKE
Citation118 Cal.Rptr. 158,13 Cal.3d 225,529 P.2d 582
Parties, 529 P.2d 582 BUILDERS ASSOCIATION OF SANTACRUZ COUNTIES, Petitioner, v. The SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent; CITY OF SAN JOSE et al., Real Parties in Interest. In Bank
Docket NumberCLARA-SANTA,S.F. 23085
Decision Date26 December 1974

Mager, Matthews & Neider, Robert S. Sturges, San Jose, Robert C. Burnstein, Oakland, and Roger J. Marzulla, San Jose, for petitioner.

No appearance for respondent.

Peter G. Stone, City Atty., Collins, Hays, Stewart, Sanford & Latta, Walter V. Hays, William M. Siegel, County Counsel, and Charles F. Perrotta, Deputy County Counsel, San Jose, for real parties in interest.

Evelle J. Younger, Atty. Gen., Robert H. O'Brien, Asst. Atty. Gen., Nicholas C. Yost and E. Clement Shute, Jr., Deputy Attys. Gen., as Amici Curiae on behalf of real parties in interest.

TOBRINER, Justice.

Suffering from serious overcrowding in local schools, the result of explosive residential development during the past decade, and concerned with the inability of the school district to keep pace with the anticipated influx of new residents, the voters of the charter city of San Jose enacted an initiative ordinance to restrict the zoning of land for residential use for a two-year period pending further study of the impact of residential development. The ordinance prohibits the rezoning of land for residential development within impacted areas of the city unless the school districts 'in which the subject land is situated' certify that the party seeking rezoning has agreed to provide a satisfactory alternative to permanent school construction. Representing developers, lenders, architects, and other persons interested in residential construction in Santa Clara and Santa Cruz Counties, plaintiff association brought an action in the superior court to enjoin enforcement of the ordinance. The superior court entered judgment for defendants, and plaintiff sought mandate directly from this court.

We issued an alternative writ to consider plaintiff's contention that the residents of a charter city could not constitutionally enact a zoning ordinance by initiative, an issue of statewide importance then pending before this court in San Diego Building Contractors Assn. v. City Council, Cal., 118 Cal.Rptr. 146, 529 P.2d 570. For the reasons set out in our opinion in the San Diego case, we find no constitutional impediment to the enactment of zoning measures by initiative. We therefore now turn to the other contentions presented by plaintiff.

Plaintiff association asserts that the ordinance (1) unconstitutionally limits the power of city council to rezone property; (2) unlawfully delegates zoning authority to the school district; (3) establishes unreasonable classifications in violation of the equal protection clause; and (4) interferes with the constitutional right to travel. An examination of the specific provisions of the ordinance, however, will demonstrate the lack of merit in these contentions.

We begin by summarizing the substantive provisions of the ordinance. 1 Section 1 provides that for two years from its effective date 'the City Council of San Jose shall not zone, pre-zone, or re-zone any land for residential use' if such land is located in an overcrowded school district as defined in the ordinance. 2 Section 2 requires the city to utilize the two-year freeze to undertake a thorough study of the problems connected with further residential developments. Section 3 offers an exception to the zoning freeze, permitting residential zoning if the school district certifies 'that the party seeking residential use has entered into binding agreements to provide a satisfactory temporary alternative to permanent school construction.' Section 4, the only substantive provision of the ordinance not limited to two years duration, states that if the school district files a written protest against adoption of any proposed zoning ordinance on the ground that its adoption would tend to cause impaction in district schools, the council may not adopt the ordinance unless it first rejects the protest by an affirmative vote of five of the seven members of the council. 3 Finally, section 5 prohibits repeal of the ordinance except by vote of the residents, and section 6 is a standard severability clause.

Plaintiff first attacks the constitutionality of the initiative ordinance because it limits the power of the city council to rezone property during the period of the interim freeze. Since no council could, by ordinance, bar a future council from considering zoning applications (cf. Thompson v. Board of Trustees (1904) 144 Cal. 281, 283, 77 P. 951), plaintiffs argue that the people by initiative cannot so limit the council's power. 4 The courts, however, have upheld the right of residents of charter cities, in enacting zoning initiatives, to bar the city council from altering or repealing the zoning established by the initiative. (Bayless v. Limber (1972) 26 Cal.App.3d 463, 102 Cal.Rptr. 647; Fletcher v. Porter (1962) 203 Cal.App.2d 313, 21 Cal.Rptr. 452.) We see no difference in principle between an initiative which bars a city council from repealing newly enacted zoning restrictions, and one which freezes existing restrictions; either, to be effective, must limit the power of a hostile city council to evade or repeal the initiative ordinance.

Contrary to plaintiff's contention, the initiative does not create a 'power vacuum' under which no body has the authority to consider zoning applications; it represents an exercise by the people of their reserved power to legislate (Ley v. Dominguez (1931) 212 Cal. 587, 593, 299 P. 713; Gayle v. Hamm (1972) 25 Cal.App.3d 250, 258, 101 Cal.Rptr. 628), and the people retain the right to repeal the initiative or to grant exceptions to its reach (see Blotter v. Farrell (1954) 42 Cal.2d 804, 811, 270 P.2d 481; Comment, The Scope of the Initiative and Referendum in California (1966) 54 Cal.L.Rev. 1717, 1727).

Plaintiff secondly contends that the ordinance unlawfully delegates authority over zoning to the school district. 5 The ordinance, however, does not confer upon the school district any power to rezone property; it provides that the council--which remains the only body which can grant an application to change zoning--will not approve residential zoning in impacted school districts without the district's certification that the district and developer have arrived at an agreement to provide the needed school facilities.

In City of Stockton v. Frisbie & Latta [1928] 93 Cal.App. 277, 270 P. 270, property owners challenged a city ordinance which permitted nonresidential uses in residential zones only with the written consent of three-fourths of the neighboring property owners; the court held that since the council retained the ultimate power to grant or deny the use permit, the ordinance did not unlawfully delegate zoning authority to the neighboring property owners (93 Cal.App. 277, at p. 295, 270 P. 270). Cities commonly require certification that proposed subdivision improvements are adequate as a condition to approving the subdivision; it has never been suggested that such practice constitutes a delegation of the power to approve subdivisions to the certifying agency. If the principal difficulty with a proposed rezoning inheres not in its effect upon neighboring property or the possible inadequacy of its proposed improvements, but in its exacerbation of overcrowding in district schools, we see no reason why the city may not condition approval of the zoning application upon certification by the school district that adequate facilities can be provided. 6

Plaintiff thirdly contends that the ordinance establishes an unconstitutional classification by discriminating between property lacking residential zoning and similar property which has already secured that zoning. 7 Subject to any applicable permit or subdivision requirements, an owner whose property is zoned for residential use may construct a residence in conformity with that zoning; the owner whose property is not residentially zoned can only hope that he can persuade the council to grant him a change in zoning. Certainly there is nothing irrational in the voters' determination to permit residential construction, pending completion of a thorough study of problems of residential development, only by those owners whose property has already been found suitable for such construction. 8

Plaintiff finally contends that the initiative ordinance interferes with a constitutional right to travel and to live in the community of one's choosing. We need not, however, explore the unsettled boundaries of this constitutional right, nor confront the difficult task of balancing that right against the right of a city to enact zoning restrictions to promote the quality of civic life (see Village of Belle Terre v. Boraas (1974) 416 U.S. 1, 9, 94 Sup.Ct. 1536, 1541, 39 L.Ed.2d 797). The zoning freeze established by the initiative here at issue is limited to two years duration, and applies only to that portion of the city plagued with the problem of overcrowded schools. Even within that portion of the city, the ordinance permits rezoning if the developer will agree to assist the school district in meeting the need for additional facilities which his development has created. Consequently the initiative need not serve to exclude newcomers from San Jose; it may, instead simply divert some development to districts with adequate school facilities, while providing overcrowded districts with the means to accomodate the needs of new residents. The trial court here found that the initiative has not in fact significantly reduced the supply of new housing in San Jose; plaintiff does not challenge that finding. We conclude that plaintiff has failed to demonstrate that the ordinance imposes any noticeable or significant infringement upon the asserted...

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