Committee of Seven Thousand (C.O.S.T.) v. Superior Court (City of Irvine)

• Decision Date: 31 December 1985
• Citation: 194 Cal.App.3d 1076,221 Cal.Rptr. 616
• Parties: Previously published at 194 Cal.App.3d 1076 194 Cal.App.3d 1076 COMMITTEE OF SEVEN THOUSAND (C.O.S.T.), William L. Speros, Antoinette M. Olivera, and James W. Johnson, Petitioners, v. SUPERIOR COURT of Orange County, Respondent; CITY OF IRVINE; the City Council of the City of Irvine; Nancy Lacey, City Clerk of the City of Irvine; Richard Munsell; Lyndon Calderine; the Building Industry Association of Southern California, Inc., Orange County Region; the Irvine Chamber of Commerce; the Industrial League of Orange County; and the Orange County Chamber of Commerce, Real Parties in Interest. G003323.
• Court: California Court of Appeals Court of Appeals

Page 616

221 Cal.Rptr. 616

Previously published at 194 Cal.App.3d 1076

194 Cal.App.3d 1076

COMMITTEE OF SEVEN THOUSAND (C.O.S.T.), William L. Speros, Antoinette M. Olivera, and James W. Johnson, Petitioners, v. SUPERIOR COURT of Orange County, Respondent CITY OF IRVINE; the City Council of the City of Irvine; Nancy Lacey, City Clerk of the City of Irvine; Richard Munsell; Lyndon Calderine; the Building Industry Association of Southern California, Inc., Orange County Region; the Irvine Chamber of Commerce; the Industrial League of Orange County; and the Orange County Chamber of Commerce, Real Parties in Interest.

G003323.

Court of Appeal, Fourth District, Division 3, California.

Dec. 31, 1985.

Review Granted April 17, 1986.

Fredric D. Woocher and Carlyle W. Hall, Jr., Los Angeles, for petitioners.

Rutan & Tucker, Roger A. Grable and Heather A. Mahood, Costa Mesa, for real parties in interest City of Irvine, City Council of the City of Irvine, and Nancy Lacey, City Clerk of the City of Irvine.

Nossaman, Guthner, Knox & Elliott, Alvin S. Kaufer, Los Angeles, Robert D. Thornton, Costa Mesa, Peter C. Hoffman, Los Angeles, and James E. Erickson, Orange, for remaining real parties in interest.

Donald V. Collin as amicus curiae on behalf of real parties in interest.

Adrian Kuyper, County Counsel (Orange), Eugene Axelrod and Benjamin De Mayo, Deputy County Counsel, Santa Ana, as amicus curiae on behalf of real parties in interest.

Parker & Covert, Clayton H. Parker, Santa Ana, and Wendy H. Wiles, Newport Beach, as amicus curiae on behalf of real parties in interest.

CROSBY, Associate Justice.

In this original proceeding occasioned by an order of the superior court barring an election on a municipal initiative, we must resolve the following question: Does the electorate of a municipality have the power to pass an initiative measure to require voter approval of any city tax or fee to finance freeways or transportation corridors despite the Legislature's specific grant of authority to the city council to make that determination?

I

This case concerns the most recent effort of local governments in Orange County to overcome a one-billion-dollar conundrum: How to build new freeways with much reduced federal and state financial assistance? At issue is a development fee funding scheme designed to underwrite three massive proposed freeways in Orange County, known as the Eastern, Foothill, and San Joaquin Hills corridors. It is conceded state and federal highway funds are no longer available in adequate amounts for these projects, nor are they likely to be in the future. A previous attempt to raise the required monies by means of a county gas tax measure suffered a lopsided defeat at the polls.

Special legislation to permit local government in Orange County to adopt development fee financing was provided in Government Code section 66484.3, a specific statute applying only to that county. The lengthy section is set forth verbatim in the appendix. It permits the county board of supervisors or any city council of a city within the county to impose fees on new development for the purpose of funding freeway or bridge construction.

The City of Irvine is a charter city, and under its charter residents may enact any ordinance by initiative the city council is capable of passing. The Committee of Seven Thousand, appropriately acronymed "C.O.S.T.," collected more than ten-thousand signatures of citizens of the City of Irvine in order to qualify an initiative entitled "The Citizens' Right-To-Vote Ordinance." The proposed legislation is set forth verbatim in the appendix. Its key provisions are the following:

"Section 2. Findings. The People of the City of Irvine find:

"(a) Under the County of Orange's proposed Major Thoroughfare and Bridge Fee Program, the construction of new 'transportation corridors' or freeways (San Joaquin Hills Transportation Corridor, Foothill Transportation Corridor, and Eastern Transportation Corridor) will require taxpayers to pay new taxes or fees of up to $150 million, or more, in Irvine, thereby imposing both direct and indirect economic "(b) These new taxes or fees should not be imposed or collected, nor should the City Council participate in their imposition or collection, without direct approval by City of Irvine voters at a regular or special election.

burdens on residents and business entities in Irvine.

"(c) The actual construction of massive new transportation corridors or freeways, if approved, will entail major environmental damage, including but not limited to: air pollution, noise pollution, visual blight, traffic congestion on connecting arterials, and the destruction of scarce open space resources."

The petition was certified by the city clerk; but before the council adopted either of the options available to it under the city charter, enactment of the ordinance or submission to the voters, the superior court, acting on a petition brought by Richard Munsell, Lyndon Calderine, the Building Industry Association of Southern California, Inc., the Irvine Chamber of Commerce, the Industrial League of Orange County, and the Orange County Chamber of Commerce, blocked further action by writ of mandate. The court ruled by minute order as follows: "The court finds that, based on the entire record in this action, that the electorate does not have the power to enact the proposed ordinance inasmuch as it is a matter of statewide concern and not a municipal affair. Brosnahan v. Eu (1982) 31 Cal.3d 1 [181 Cal.Rptr. 100, 641 P.2d 200]; American Federation of Labor v. Eu (1984) 36 Cal.3d 687 [206 Cal.Rptr. 89, 686 P.2d 609]. In reaching its decision based on the applicable case law as cited by the parties, the court has further considered the entire statutory scheme of which Government Code Section 66484.3 is a part."

Although the order is appealable, any judicial restraint of the electoral process is immediately suspect. For this reason, and at the request of all parties, we determined to expedite the matter by means of this writ proceeding.

II

C.O.S.T. makes the following arguments in opposition to the superior court's actions: It claims the proposed ordinance addresses "quintessentially municipal issues and not statewide issues ...." But even if it does address matters of statewide concern, Government Code section 66484.3 is subject to the construction that it provides for initiative action by the electorate. At least it cannot be said that the section provides the opposite, i.e., to in effect "establish a pervasive system of state regulation that would convert the Irvine City Council into an administrative agent of the state and thus preclude an initiative." The city charter reserves more power to the citizens of Irvine to legislate by initiative than does the Constitution of California, which contains a prohibition on referenda seeking to overturn tax measures for "usual current expenses." (Cal. Const., art. II, § 9, subd. (a).) And, in any event, the ordinance would not affect taxes, only fees, and the size of the projects to be financed would not fit within the "usual current" rubric.

The City of Irvine takes no position on the proposed initiative other than to request speedy resolution of the judicial proceedings concerning it. The remaining real parties in interest reply as follows: Initially, they note the County of Orange adopted the "Major Thoroughfare and Bridge Fee Program" in response to passage of Government Code section 66484.3 to assist in financing the three transportation corridors. The county began collecting fees under the program over a year ago. Since, eight cities have joined the program and are collecting fees or will start soon. Other cities may join, but participation of the City of Irvine is essential to the success of the program. It is geographically situated in the midst of the three corridors to be developed and is expected to be the source of about a quarter of the fees. After extensive public hearings the city council voted four-to-one to join the program and began collecting fees in November 1985.

Legally, real parties fault the proposed ordinance in the following ways: First, it Second, the initiative may "delay or preclude the participation of the City of Irvine in the Major Thoroughfare Fee Program which will partially fund the Transportation Corridors." The corridors are "critical to both local and regional transportation plans and to management of traffic ...."

                would impair the authority of the city council to tax and would "significantly interfere with the undoubtedly essential governmental function of financing roads."   And, it is argued, the charter does not reserve greater initiative powers than the state Constitution reserves to the voters of general law cities
                

Third, the Legislature has expressly delegated to the city councils of Orange County the authority to impose fees, and they are, consequently, "administrative agent[s] of the Legislature." Because the ordinance would "control actions expressly delegated by the Legislature to the [council], it is invalid ...."

Fourth, the ordinance would significantly affect the interests of nonresidents of the city. Because the "regional burdens imposed by the [ordinance] would be substantial," it must be invalid.

Fifth, the ordinance purports to be retroactive to January 1, 1985. But the city council adopted a Major Thoroughfare and Bridge Fee Program pursuant to Government Code section 66484.3 on October 22, 1985. Thus, the initiative, if allowed to affect the council's October action, would be, in effect, a referendum, not an initiative; and the proper procedures to proceed with a referendum have not been followed. Finally, we are told, the short title of the initiative "is misleading and designed to confuse voters."

We will not find it necessary to deal with most of these contentions. Many of them would obviously more appropriately be aired in campaign literature, but it is not for us to...