Building Industry Assn. v. City of Camarillo

• Decision Date: 22 May 1986
• Citation: 41 Cal.3d 810,718 P.2d 68,226 Cal.Rptr. 81
• Court: California Supreme Court
• Parties: , 718 P.2d 68 BUILDING INDUSTRY ASSOCIATION OF SOUTHERN CALIFORNIA, INC., Plaintiff and Appellant, v. CITY OF CAMARILLO, Defendant and Respondent. L.A. 32097.

Page 81

226 Cal.Rptr. 81

41 Cal.3d 810, 718 P.2d 68

BUILDING INDUSTRY ASSOCIATION OF SOUTHERN CALIFORNIA, INC., Plaintiff and Appellant, v. CITY OF CAMARILLO, Defendant and Respondent.

L.A. 32097.

Supreme Court of California,

In Bank.

May 22, 1986.

Stanley E. Cohen, David W. Tredway, Mitchel B. Kahn and Cohen, England & Whitfield, for plaintiff and appellant.

Ronald A. Zumbrun, Robert K. Best, Thomas W. Birmingham and John H. Lee, as amici curiae on behalf of plaintiff and appellant.

Colin Lennard, City Atty., Burke, Williams & Sorensen, Katherine E. Stone and Cristina L. Sierra for Defendant and Respondent.

Gregory A. Hile, Harvey & Gentry, Mark I. Weinberger, Shute, Mihaly & Weinberger and Daniel P. Selmi, as amici curiae on behalf of defendant and respondent.

LUCAS, Justice.

This case presents two issues for review: (1) Is Evidence Code section 669.5, ¹ which shifts the burden of proof in actions challenging the validity of growth control ordinances, applicable to such an ordinance enacted by the initiative process? (2) Is Government Code section 65863.6, ² which requires cities and counties to balance housing needs against public service needs before passing growth control ordinances, and to list in those ordinances findings as to the public health, safety, and welfare to be promoted which justify reducing the housing opportunities of the region, applicable to a growth control ordinance enacted by means of the initiative process?

We conclude that Evidence Code section 669.5 applies to ordinances enacted by initiative after the effective date of that section, but that Government Code section 65863.6 does not apply to such ordinances.

1. FACTS

On June 2, 1981, the voters of the City of Camarillo (City) adopted an initiative for a growth control ordinance, which was referred to as Measure A. The stated purpose of the ordinance was to achieve a steady rate of residential growth and insure the adequacy of city, school, and recreation facilities. Measure A limited the number of "dwelling units" constructed in City to 400 per year for the years 1982 to 1995. Single family homes, subsidized low income and senior citizen housing, remodelling of existing dwellings, and fourplexes or lesser numbered multiple dwellings on a single lot were exempted from the ordinance. Developers must compete each year for the right to construct these 400 units.

Building Industry Association of Southern California (BIA) and Pardee Construction Company (Pardee) filed separate complaints against City, challenging the validity of Measure A on numerous grounds. The two actions were consolidated for trial. In June 1983, the trial court granted a motion for partial summary judgment. The court ruled as follows: (1) Section 669.5 of the Evidence Code is not applicable to Measure A; (2) the measure does not conflict with sections 65302.8, 65580, 65583, or 65584 of the Government Code; (3) it does not conflict with the Subdivision Map Act; and (4) it does not conflict with section 65863.6 of the Government Code.

Following the trial court's ruling, the parties entered into the following stipulation. Pardee agreed to dismiss its complaint. BIA and City agreed that the remaining issue was whether "[i]t is fairly debatable that ... [Measure A] in fact bears a reasonable relation to the general welfare. (Associated Homebuilders etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, 601 [135 Cal.Rptr. 41, 557 P.2d 473].)" They also agreed that, following the partial summary judgment, BIA would bear the burden of proof of this issue. Because BIA conceded that it could not prevail on the remaining issue if it had the burden of proof, the parties stipulated that judgment be entered in favor of City. The agreement stated that the sole purpose of the stipulated judgment was to permit BIA to appeal the trial court's rulings. The parties agreed that if an appellate court reversed the trial court's ruling concerning Evidence Code section 669.5 (relating to which party has the burden of proof), a trial on the merits would be required.

BIA did not appeal the rulings that Measure A does not conflict with Government Code sections 65302.8, 65580, 65583, and 65584 or with the Subdivision Map Act. The appeal was limited to whether Evidence Code section 669.5 is applicable to Measure A and whether the measure conflicts with Government Code section 65863.6.

2. THE COURT OF APPEAL OPINION

This matter comes to us on a petition for review and, accordingly, we will briefly address the Court of Appeal opinion. City had argued that Evidence Code section 669.5 does not apply to Measure A because the measure does not "directly limit, by number, the building permits that may be issued for residential construction" or "the buildable lots which may be developed for residential purposes." The Court of Appeal rejected City's argument, stating that this argument ignores reality, and that, because the practical effect of Measure A is to preclude tract development in Camarillo beyond 400 units per year through 1995, the measure is the sort of ordinance to which Evidence Code section 669.5 would apply if that section applied to ordinances enacted by initiative.

Nonetheless, after examining the legislative history of Evidence Code section 669.5, the Court of Appeal determined that it was unclear whether the statute was intended to apply to initiative measures. The court perceived itself as forced to choose between two plausible interpretations of an ambiguous statute. It expressed concern over whether, because planning data to justify the initiative measure might not be available to the governing body having the burden of proof, the statute would unconstitutionally bar initiative growth control ordinances. Because the statute should be construed to eliminate doubts as to the provision's constitutionality (see In re Kay (1970) 1 Cal.3d 930, 942, 83 Cal.Rptr. 686, 464 P.2d 142), the Court of Appeal adopted the construction that Evidence Code section 669.5 does not apply to initiative measures. We disagree.

In determining whether Government Code section 65863.6 applies to initiatives, the Court of Appeal concluded that Measure A is a "zoning regulation" of the type covered by Government Code chapter 4, title 7, division 1. However, the justices found illogical the application of Government Code section 65863.6 to initiative measures, stating that, "There is a world of difference in requiring a city council to justify its findings, and to show that it considered the effect on housing needs of the region ... and in requiring the electorate to do so." Using an analysis similar to ours in Associated Home Builders etc., Inc. v. City of Livermore, supra, 18 Cal.3d at page 596, 135 Cal.Rptr. 41, 557 P.2d 473, the Court of Appeal held that Government Code section 65863.6 sets out procedures to be followed by a governing body of a city or county, not by an electorate before voting on an initiative measure.

In a concurring opinion, Presiding Justice Lillie argued that the merits of the case should not have been reached. She stated that the appeal had been tainted because the parties stipulated to a final judgment following entry of an unappealable partial summary judgment in order to allow BIA to pursue an appeal. Justice Lillie contended that, for policy reasons, we ought not allow parties by stipulation to avoid the effect of the one final judgment rule, and furthermore, an appeal should not be heard from a judgment to which the plaintiff consented. The majority responded to Justice Lillie's first argument by pointing out that it is "wasteful of trial court time" to require the plaintiff to undergo a probably unsuccessful court trial merely to obtain an appealable judgment. To the second argument, the majority replied that here plaintiff did not really consent to the judgment, but merely acknowledged that it could not win the case if it had the burden of proof. More important, there is an exception to the rule that a party may not appeal a consent judgment. If consent was merely given to facilitate an appeal following adverse determination of a critical issue, the party will not lose his right to be heard on appeal. (Meacham v. McKay (1869) 37 Cal. 154, 159; Kenworthy v. Hadden (1978) 87 Cal.App.3d 696, 700, 151 Cal.Rptr. 169.) We thus may address the merits of the issue under section 669.5 of the Evidence Code.

3. DISCUSSION

A. Application of Evidence Code Section 669.5 to Initiative Measures

In 1980, the Legislature adopted Evidence Code section 669.5, which establishes a presumption that growth limitation ordinances adversely affect regional housing needs and places the burden of proof on the city or county to show that the ordinance is necessary to promote public health, safety, and welfare. It is clear from section 1 of Assembly Bill No. 3252 (which added § 669.5 to the Evidence Code) that the Legislature intended to shift the burden of proof to the proponents of growth control legislation as a matter of public policy in order to counteract unjustified limitations on the supply of local housing sufficient to meet the municipality's share of regional housing needs.

In enacting section 669.5, the Legislature stated that "an adequate supply of housing is necessary for the health, safety, and public welfare of all Californians. The Legislature further finds and declares that local government ordinances which severely restrict the number of housing units which may be constructed have an effect on the supply of housing within the region, may exacerbate the housing market conditions in surrounding jurisdictions, and may limit access to affordable housing within the jurisdiction and in the region. While the Legislature recognizes that, in certain instances, the public health, safety, and welfare warrant enactment of such ordinances, increasing public need for adequate housing requires that local governments properly establish the need for such ordinances and balance...