Davis v. City of Berkeley

• Decision Date: 09 August 1990
• Docket Number: No. S002285,S002285
• Citation: 51 Cal.3d 227,272 Cal.Rptr. 139,794 P.2d 897
• Court: California Supreme Court
• Parties: , 794 P.2d 897 Sara E. DAVIS, et al., Plaintiffs and Appellants, v. CITY OF BERKELEY, et al., Defendants and Respondents; Gene Mann, et al., Interveners and Respondents.

Page 139

272 Cal.Rptr. 139

51 Cal.3d 227, 794 P.2d 897

Sara E. DAVIS, et al., Plaintiffs and Appellants, v. CITY OF BERKELEY, et al., Defendants and Respondents;

Gene Mann, et al., Interveners and Respondents.

No. S002285.

Supreme Court of California,

In Bank.

Aug. 9, 1990.

Tony J. Tanke, Belmont, and Susan Burnett Luten, Oakland, for plaintiffs and appellants.

Lillick, McHose & Charles, R. Frederic Fisher, San Francisco, Ronald A. Zumbrun, Anthony T. Caso and Jonathan M. Coupal, Sacramento, as amici curiae on behalf of plaintiffs and appellants.

Manuel Albuquerque, City Atty. and Marjorie Gelb, Deputy City Atty., for defendants and respondents.

Robert L. McWhirk, Ana M. Montano, John K. Van de Kamp, Atty. Gen., Andrea Sheridan Ordin, Chief Asst. Atty. Gen., Marian M. Johnston and M. Anne Jennings, Deputy Attys. Gen., Goldfarb & Lipman, Lee C. Rosenthal, Robert A. Firehock, Jonathan Lehrer-Graiwer, Frances E. Werner, Weissbrodt, Mirel, Swiss & McGrew, Jane Lane McGrew, Mark N. Aaronson, James K. Hahn, City Atty., Los Angeles, Thomas C. Bonaventura and Pedro B. Echeverria, Asst. City Attys., Julia P. Downey and Dov S. Lesel, Deputy City Attys., as amici curiae on behalf of defendants and respondents.

Peter E. Sheehan and Katharine S. Miller, Oakland, for interveners and respondents.

KENNARD, Justice.

The California Constitution requires voter approval of any low-rent housing project before its development, construction, or acquisition by a state or local public agency. The issue here is whether this constitutional requirement is satisfied by voter approval of a ballot measure that specifies the maximum number of low-rent housing units to be developed, acquired, or constructed but provides no other information about the proposed project.

To decide this issue, we must construe the language of article XXXIV, section 1, of the California Constitution (hereafter article XXXIV), which reads: "No low rent housing project shall hereafter be developed, constructed, or acquired in any manner by any state public body until, a majority of the qualified electors of the city, town, or county, as the case may be, in which it is proposed to develop, construct, or acquire the same, voting upon such issue, approve such project by voting in favor thereof at an election to be held for that purpose, or at any general or special election."

Article XXXIV does not by its express terms require that specific information about the proposed housing project be provided to the electorate in the ballot measure by means of which the necessary voter approval is obtained. The historical background of article XXXIV and the ballot arguments that accompanied the measure when it was presented to this state's voters in 1950 establish that article XXXIV was intended to prevent a locality from developing low-rent housing without the prior approval of its voters. They fail to demonstrate, however, that a ballot measure by which this approval is obtained must contain a specific project description or timetable.

During the nearly 40 years since the enactment of article XXXIV, local public agencies have followed a practice of seeking the constitutionally required voter approval by means of ballot measures that state the maximum number of dwelling units to be developed, constructed, or acquired but do not describe the units' location or design, the source of the project's funding, or the dates of any of the steps required to complete the project. As we will explain, voter approval of a ballot measure in this commonly used form is sufficient to provide article XXXIV authorization for the subsequent construction of low-rent housing units up to the maximum number of units stated in the measure.

I. FACTS AND PROCEDURAL BACKGROUND

In 1977 and 1981, the City of Berkeley submitted to its electorate 2 ballot measures asking the voters for authorization to develop within the city 200 and 300 units, respectively, of low- or moderate-income public housing. The voters approved both measures by substantial margins.

The 1977 measure, entitled "Specific Authorization for Public Housing," stated in relevant part: "Any public entity ... shall be empowered to develop, construct or acquire public housing for the purpose of renting such housing to low income or moderate income persons in the City of Berkeley, provided such development, construction or acquisition is financed through local, state, federal or private sources, or any combination thereof.... In no event shall any development, construction or acquisition of public housing, as defined herein, exceed 200 units." The wording of the 1981 measure authorizing an additional 300 units was virtually identical.

In 1982, the city developed a 14-unit scattered-site housing project funded through a program of the California Department of Housing and Community Development. In 1983, a private developer, using city funds and redevelopment land, completed a 62-unit project funded through the California Housing Financing Agency. In each instance, the participating state agency accepted the 1977 and 1981 ballot measures as providing valid article XXXIV authorization for the project.

On June 29, 1984, the United States Department of Housing and Urban Development (HUD) announced that it was accepting applications from eligible public housing authorities for federal funds to be used in the development of low-income housing projects. ¹ The announcement indicated that funds were available for only 489 units "region-wide," so each local housing authority would be permitted to seek funds for no more than 75 units. The announcement also specified that applications for the federal funds in question had to be submitted by August 1, 1984, that is, within 32 days of the announcement. Under general federal policy, any application from a housing authority in California had to be accompanied by a certificate indicating that the voter approval required by article XXXIV had already been obtained for the units covered by the application.

The Berkeley Housing Authority decided to pursue the federal funds mentioned in the June 29 announcement, and it promptly sought the Berkeley City Council's approval to submit an application including a request for preliminary funding. On July 17, 1984, the city council passed a resolution approving the housing authority's submission of an application for a preliminary loan in an amount not exceeding $1,056,000 "for surveys, planning, site acquisition and other predevelopment costs in connection with low-rent housing projects of not to exceed 75 dwelling units." The housing authority then filed its application with HUD, appending the city council's resolution and a certificate of compliance with article XXXIV. The certificate cited the 1977 and 1981 authorizations of a total of 500 units and noted that up to that time only 76 units (the 14-unit and 62-unit projects) had been developed under those authorizations.

Shortly thereafter, the city council and the housing authority executed a cooperation agreement, as required by federal law (see 42 U.S.C. § 1437c(e)(2)), agreeing that the city would exempt the proposed development from local taxes and would supply certain public services without charge if federal funding was provided. In November 1984, HUD approved the application and reserved funds for the construction of the project, including some $1 million in "front end" funding.

After its application was approved, the housing authority undertook extensive activities to identify possible building sites; to survey and inspect the sites; to develop preliminary architectural plans; to obtain zoning waivers, use permits and variances; and to comply with the requirements of the California Environmental Quality Act. In the course of these activities, over 30 public hearings and meetings were held. The $1 million in preliminary funding obtained from HUD was used for this part of the development process.

In July 1985, the housing authority submitted to HUD its proposal specifying the proposed locations and design of the scattered-site project. (See 24 C.F.R. § 941.404.) Shortly thereafter, plaintiffs (five residents and taxpayers of Berkeley who opposed the 75-unit scattered-site proposal) requested the housing authority to place the project before the city's voters for approval under article XXXIV. The housing authority denied the request.

Plaintiffs then filed the present proceeding seeking to stay further development of the 75-unit project pending an election to determine whether the voters approved of the project as it had been defined in the proposal submitted to HUD. Plaintiffs acknowledged that the number of units of low-income housing to be developed did not exceed the total number approved by the 1977 and 1981 ballot measures. But they maintained that those ballot measures, because they did not describe this specific 75-unit proposal, did not provide the authorization required by article XXXIV. In response, the city took the position that article XXXIV's voter approval requirement had been fully satisfied by passage of the 1977 and 1981 ballot measures. Two indigent residents of the city, claiming to be potential beneficiaries of the proposed project, intervened in the action to support the city's position.

Both sides moved for summary judgment, the trial court granted judgment in favor of the city and interveners, and the Court of Appeal affirmed the judgment. We granted review to consider plaintiffs' contention that the 1977 and 1981 ballot measures in question did not satisfy the requirements of article XXXIV. ²

II. DISCUSSION

When construing a constitutional provision enacted by initiative, the intent of the voters is the paramount consideration. (In re Lance W. (1985) 37 Cal.3d 873, 889, 210 Cal.Rptr. 631, 694 P.2d 744.) To determine that intent, we look first to the provision's language, giving the words their ordinary meaning. (Lungren v. Deukmejian (1988) 45 Cal.3d 727,...