Fletcher v. Porter

• Citation: 203 Cal.App.2d 313,21 Cal.Rptr. 452
• Parties: L. S. FLETCHER, R. P. Nicolson, Enid Pearson, and E. F. Tubbs, Petitioners and Respondents, v. Noel E. PORTER, John Ball, Burt L. Davis, Clifford Q. Giffin, J. P. Mitchell, Herbert A. Navis, Stanley Bishop, Stanley R. Evans, James G. Marshall, Carl S. Stephens, Bertrum B. Woodward, Jr., Robert W. Byxbee, David B. Haight, Lee W. Rodgers, and H. Christian Zweng, Councilmen; City Council of the City of Palo Alto, and Winifred Kidd, City Clerk of the City of Palo Alto, City of Palo Alto, Appellants. Civ. 20194.
• Decision Date: 08 May 1962
• Court: California Court of Appeals

Page 452

21 Cal.Rptr. 452

203 Cal.App.2d 313

L. S. FLETCHER, R. P. Nicolson, Enid Pearson, and E. F. Tubbs, Petitioners and Respondents, v. Noel E. PORTER, John Ball, Burt L. Davis, Clifford Q. Giffin, J. P. Mitchell, Herbert A. Navis, Stanley Bishop, Stanley R. Evans, James G. Marshall, Carl S. Stephens, Bertrum B. Woodward, Jr., Robert W. Byxbee, David B. Haight, Lee W. Rodgers, and H. Christian Zweng, Councilmen; City Council of the City of Palo Alto, and Winifred Kidd, City Clerk of the City of Palo Alto, City of Palo Alto, Appellants.

Civ. 20194.

District Court of Appeal, First District, Division 1, California.

May 8, 1962.

As Modified on Denial of Rehearing June 7, 1962.

Hearing Denied July 3, 1962.

Robert E. Michalski, City Atty., Stanley R. Norton, Asst. City Atty., Palo Alto, for appellants.

Paul N. McCloskey, Jr., Paul N. McCloskey, Sr., Palo Alto, for respondents.

TOBRINER, Justice.

This attempt of the City Council of Palo Alto to retain powers allegedly vested in it by the city charter, by preventing the electorate from voting on an ordinance proposed through the initiative procedure, must fail. The ordinance would clarify the duties of the planning commission with respect to the adoption of a master plan. We find no merit in the council's multiple objections to the ordinance: (1) that the ordinance, if valid, cannot be initiated by the electorate; (2) that the ordinance violates legislative requirements and due process of law; and (3) that the ordinance is void for vagueness.

The factual background of the proposed legislation does not appear to be in dispute. In excess of 3,000 persons, residents of the City of Palo Alto, signed an initiative petition which requested the city council to enact or submit the proposal to the electorate at a special election. The petition sought to amend the existing city ordinance, section 251.3 of the Administrative Code of the City of Palo Alto.

The city attorney advised the council that the ordinance was invalid. Pursuant to that opinion, the city clerk did not check the signatures on the petition; the council did not act on the initiative. Respondents, taxpayers, residents and electors of Palo Alto, thereupon filed a petition for a writ of mandate with the superior court asking the court to issue a writ of mandate commanding the city clerk to examine the signatures for sufficiency and ordering the city council either to enact the ordinance or submit it to the electorate at a special election. The alternative writ issued; appellants appeal from the order granting the peremptory writ of mandate.

We initially analyze the terms of the proposed ordinance, construing them if possible, as we must, so as not to conflict with other legislative enactments. (City of Los Angeles v. Barrett (1957) 153 Cal.App.2d 776, 782, 315 P.2d 503; Glass v. City of Fresno (1936) 17 Cal.App.2d 555, 560, 62 P.2d 765.) An examination of the separate subdivisions discloses no conflict on their face or in the language with other provisions of the charter.

Subdivision (a) of the proposed ordinance reposes in the planning commission 'the primary duty to prepare, adopt and recommend to the City Council' master plans; it deletes from the original enactment the provision that '[t]he Commission shall be advisory only * * *.' While appellants would convey to the commission the power to bind the council to its plans, the contention cannot surmount the word 'recommend.' To recommend does not mean to bind. We may, therefore, read the proposal in consonance with the charter provision that '[a]ll * * * commissions * * * under the provisions of this charter * * * shall be advisory only and shall exercise no governmental or administrative powers.' Moreover, in construing the ordinance we may note the arguments urged to support the initiative measure (People v. Tilkin (1939) 34 Cal.App.2d Supp. 743, 752, 90 P.2d 148; City of Pasadena v. Railroad Commission (1920) 183 Cal. 526, 530, 192 P. 25, 10 A.L.R. 1425); the advocates of the proposal state the purpose of the ordinance to be the '[c]larification of the duties of the Planning Commission,' not the enlargement of the commission's powers, and certainly not the delegation of a right to adopt binding master plans.

Subdivision (b) of the proposal would incorporate Articles 7 and 8, Chapter 3 of Title 7 of the Government Code, which promulgate a system for the preparation and adoption of master plans by general law cities. Such provisions do not apply to a charter city unless such a city adopts them by charter or ordinance. (Gov.Code, § 65304.) We note again that these sections grant to the planning commission only the power of recommendation, not of the adoption, of master plans. (Gov.Code, §§ 65500-65516.) These provisions are confined to empowering the commission to approve the master plan prior to submission to the legislative body; the legislative body 'may change or add to all or part of an adopted master plan. * * *' (Gov.Code, § 65511.)

Subdivisions (c), (d) and (e) likewise speak in the accents of recommendation: (c) provides that the planning commission shall annually review the general plan and recommend changes to the council; (d) stipulates that the general plan 'shall be the guide for the Capital Improvement Program' insofar as it 'affects the physical development of the city.' Subdivision (e) provides that all matters 'affecting the physical development of the City shall be submitted to the Planning Commission for a report to the City Council as to conformity to the Master Plan'; since the commission's function is recommendatory only, subdivision (e) carries no binding consequences.

With the exception of coverage within the 1955 interim general plan, subdivision (f) precludes zoning or rezoning for industrial or manufacturing uses until the commission submits to the council its comprehensive general plan. The provision does not, as appellants contend, incorporate a zoning ordinance but constitutes an interim measure which protects the performance of the remaining provisions of the ordinance.

Finally, subdivision (g), which delegates to the commission 'such other duties as may be prescribed by the ordinances of the City or resolutions and motions of the Council' does not conflict with Article III, Section 20, of the charter, which gives the council the power to assign additional duties to commissions.

We turn to a consideration of the specific arguments of appellants attacking the validity of the ordinance.

1. The ordinance, if valid, may be initiated by the electorate.

We examine appellants' attempt to defeat the use of the initiative upon the grounds that it may not be applied to this type of ordinance; that the electorate may not exercise powers 'vested solely in the City Council'; that the initiative applies only to legislative, not administrative, acts, and that zoning ordinances are not subject to the initiative process.

First, while appellants strongly rely upon the proposition that Alexander v. Mitchell (1953) 119 Cal.App.2d 816, 260 P.2d 261, forbids the use of the initiative to abrogate a power delegated to the municipality by the Legislature, which affects matters of statewide concern, the ordinance here does not involve such a subject matter. Alexander held that the initiative could not be used to negate the municipality's power to determine whether or not to use eminent domain for off-street parking facilities. That decision of this Division written by Justice Bray states: 'While the initiative and referendum deal with the reserved powers of the people and should be liberally construed to uphold the power wherever that reasonably can be done, Collins v. City & County of S. F., 112 Cal.App.2d 719, 247 P.2d 362, nevertheless the right of eminent domain is a matter of statewide concern and being such cannot be abrogated by the people of a municipality. A city has no inherent power of eminent domain. [Citations.] It exercises it only because authorized by the State Legislature.' (P. 821, 260 P.2d p. 263.)

The proposed ordinance, however, does not involve, like Alexander, a 'matter of statewide concern' but a local subject matter. (P. 821, 260 P.2d p. 263.) To the extent that the ordinance relates to the duties of the planning commission, certainly it is local in nature. To the extent that it attempts to adopt by reference sections 65460-65516 of the Government Code relating to the procedure for adopting a master plan, it is local in nature; the adoption of a master plan effects no statewide consequences. To the extent that the ordinance would suspend the council's power relating to matters which affect the physical development of the city or the council's power to rezone property pending action by the planning commission, the ordinance would not invade statewide areas. To show that the subject matter of the Alexander case involved a municipal and not a statewide affair appellants apparently rely upon the statement in the opinion that 'while off-street parking projects are matters of city-wide concern in the same sense that anything done by a municipality is, essentially they are primarily of local interest * * *.' (Pp. 826-827, 260 P.2d p. 267; emphasis added.) The court there contrasts matters of citywide concern with those of a local interest in a 'given area' in which the 'property owners * * * desire to form an assessment district * * *.' (P. 827, 260 P.2d p. 267.) The court does not contrast statewide matters with local matters as we have used the terms supra.

Second, appellants contend that the ordinance would enable the electorate to exercise powers vested solely in the city council. Yet the cases to which appellants refer (Alexander v. Mitchell, supra, 119 Cal.App.2d 816, 260 P.2d 261; Mervynne v. Acker (1961) 189 Cal.App.2d 558, 11 Cal.Rptr. 340), involve situations in which the Legislature has specifically delegated certain powers of statewide concern to a governing municipal body.

Alexander does...