Gibbs v. City of Napa

• Decision Date: 16 June 1976
• Citation: 130 Cal.Rptr. 382,59 Cal.App.3d 148
• Court: California Court of Appeals Court of Appeals
• Parties: Joyce GIBBS et al., Plaintiffs and Respondents, v. CITY OF NAPA et al., Defendants and Respondents; Citizens Against the Destruction of NAPA et al., Interveners and Appellants. Civ. 38096.

Page 382

130 Cal.Rptr. 382

59 Cal.App.3d 148

Joyce GIBBS et al., Plaintiffs and Respondents, v. CITY OF NAPA et al., Defendants and Respondents Citizens Against the Destruction of NAPA et al., Interveners and Appellants.

Civ. 38096.

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

June 16, 1976.

Hearing Denied Aug. 12, 1976.

Victor A. Fershko, Napa, for interveners and appellant.

Dickenson, Peatman & Fogarty and David W. Meyers, Napa, for plaintiffs and respondents.

Frank L. Dunlap, City Atty., W. Scott Snowden, Deputy City Atty., Napa, for defendants and respondents.

ELKINGTON, Associate Justice.

Plaintiffs Joyce Gibbs, Gordon Eby and Mildred Cunningham sought a writ of mandate directing the City of Napa, and certain of the city's officials, not to proceed with a proposed initiative election sponsored by Citizens Against the Destruction of Napa, an unincorporated association, Lawrence Friedman and Arthur Stewart, Jr. (hereafter 'interveners'). The interveners appeal from a judgment directing the writ to issue.

The proposed election was based upon an initiative petition which procedurally had qualified for a vote thereon by the city's electors. Its content follows:

'The People of the City of Napa do ordain as follows:

'WHEREAS, the Napa Community Redevelopment Agency has repeatedly failed to preserve Napa's cultural heritage by irreversibly destroying the unique character of downtown Napa; and

'WHEREAS, by enacting this ordinance, the people of Napa seek to preclude further expension beyond the original nine-block core area as described in the Urban Redevelopment Plan for the Parkway Plaza Redevelopment Project; and

'WHEREAS, by enacting this ordinance, the people of Napa seek to preclude further destruction to our City beyond the original nine-block core area described hereinabove; and

'WHEREAS, as of the date this ordinance becomes effective, it is found and determined that there is no further need for the Napa Community Redevelopment Agency to function in the City of Napa beyond those operations within the original nine-block core area described hereinabove,

'NOW, THEREFORE, be it ordained as follows:

'1. Immediately upon the completion of operations within said original nine-block core area as defined in the Urban Redevelopment Plan for the Parkway Plaza Redevelopment Project, there shall be no further need for said Agency to continue to function.

'2. Immediately upon the completion of operations within said original nine-block core area as hereinabove described, the offices of the Agency members shall be vacated and the capacity of the Agency to transact business or exercise any powers shall be suspended until the City Council of the City of Napa shall adopt an ordinance declaring the need for said Agency to function.

'3. Should any provision in this ordinance be found or determined to be invalid or unconstitutional, the remaining portions hereof are intended to be severed therefrom from and to remain in full force and effect.

'Dated, this 30 day of September, 1974.'

In 1962 the council of the City of Napa had, by ordinance, declared a need for the functioning of the Napa Community Redevelopment Agency. The city council had elected to exercise the powers granted to the agency according to Health and Safety Code section 33003. Thereafter in 1969 the council by ordinance adopted an urban redevelopment plan. Pursuant to that plan nine blocks in the downtown area of the city were scheduled for redevelopment. Then in 1973 the council amended its earlier ordinances to provide for several additional contiguous city blocks in 'the plan of property for acquisition and clearance' by the redevelopment agency.

The amendatory ordinance of 1973 had thus adopted an 'urban redevelopment plan.'

1. The first question presented to us on the interveners' appeal is whether their proposed ordinance was a proper subject of the initiative process.

A brief consideration of the Community Redevelopment Law (Health & Saf.Code, § 33000 et seq.) seems desirable at this point.

'There is in each community a public body, corporate and politic, known as the redevelopment agency of the community.' (§ 33100.)

The redevelopment agency, however, shall not 'transact any business or exercise any powers' until and unless the community's 'legislative body declares that there is need for (the) agency to function . . ..' But the ultimate policy determination whether the agency shall function is confided to the community's electorate. 'The ordinance of the legislative body declaring that there is need for an agency to function in the community Shall be subject to referendum as prescribed by law . . ..' (§ 33101; emphasis added.) Such referendum proceedings are commenced by submission of an appropriate petition to the clerk of the city council within 30 days of the adoption of the ordinance. (Elec.Code, § 4051.)

The policy question, whether a city's redevelopment agency shall function, is of a legislative nature. But when the need for the agency to function is determined, 'all considerations of wisdom, policy and desirability connected with the functioning of a redevelopment plan (become) settled . . ..' The agency's acts thereafter fall 'within the executive or administrative functions.' And case authority makes it 'clear that once the legislative policy is established . . . the administrative acts following therefrom are not subject to referendum.' (Andrews v. City of San Bernardino, 175 Cal.App.2d 459, 462--463, 346 P.2d 457, 458--59; see also In re Development Plan for Bunker Hill, 61 Cal.2d 21, 39, 37 Cal.Rptr. 74, 389 P.2d 538, cert. den., 379 U.S. 899, 85 S.Ct. 185, 13 L.Ed.2d 174; Housing Authority v. City of L.A., 38 Cal.2d 853, 862, 243 P.2d 515, cert. den., 344 U.S. 836, 73 S.Ct. 46, 97 L.Ed. 651; Housing Authority v. Superior Court, 35 Cal.2d 550, 557, 219 P.5d 457; Walker v. City of Salinas, 56 Cal.App.3d 711, 715--718, 128 Cal.Rptr. 832; Lincoln Property Co. No. 41, Inc. v. Law, 45 Cal.App.3d 230, 233--234, 236, 119 Cal.Rptr. 292; Valentine v. Town of Ross, 39 Cal.App.3d 954, 959, 114 Cal.Rptr. 678; Duran v. Cassidy, 28 Cal.App.3d 574, 580--581, 104 Cal.Rptr. 793).

The charter of the City of Napa expressly provides that: 'There shall be an initiative,' the mode and form of which shall be in accordance with the applicable general laws of the state. (Stats.1972, res. ch. 142, p. 3431.)

An analysis of the interveners' proposed initiative ordinance discloses that its effect, and apparent purpose, would be to nullify the urban redevelopment plan adopted by the city council's 1973 ordinance. Such a result, as we have shown, would have been prohibited under the referendum process, for the plan's adoption was an executive or ministerial act. It is settled that an initiative ordinance may not be used to undo such an act which is beyond the reach of referendum proceedings. 'A proposed initiative ordinance cannot be used as an indirect or backhanded technique to invoke the referendum process' 'where the latter process is unavailable. (Dare v. Lakeport City Council, 12 Cal.App.3d 864, 867, 91 Cal.Rptr. 124; Myers v. City Council of Pismo Beach, 241 Cal.App.2d 237, 243, 50 Cal.Rptr. 402; and see Campen v. Greiner, 15 Cal.App.3d 836, 843, 93 Cal.Rptr. 525.)

Other reasons demonstrate the proposed initiate ordinance's invalidity. When a municipal council, as here, declares a need for the redevelopment agency to function, the agency thereby becomes a state agency when acting in redevelopment matters. The council functions as an administrative arm of the state because it pursues a state concern and effectuates a state legislative policy. The functioning of such an agency is beyond the reach of, or control by, a municipal initiative or referendum election. (See In re Development Plan for Bunker Hill, supra, 61 Cal.2d 21, 39, 37 Cal.Rptr. 74, 389 P.2d 538; Walker v. City of Salinas, supra, 56 Cal.App.3d 711, 718, 128 Cal.Rptr. 832; Andrews v. City of San Bernardino, supra, 175 Cal.App.2d 459, 461--463, 346 P.2d 457.)

II. The interveners point out that the redevelopment agency did not function at all for a period of seven years after the city council declared a need for its functioning in 1962. In such a case, they argue, Health and Safety Code section 33140 permits the city's legislative body 'by ordinance (to) declare that there is no further need for the agency.' ¹ They then reason that such a declaration is a matter of legislative policy within the proper scope of the initiative process.

It will be seen that section 33140 permits such an ordinance by the city council when the redevelopment agency has not functioned for 'two years after the adoption of an ordinance' declaring a need for it to function. A literal interpretation of the statute would lend aid to the instant contention.

But we observe that there is no statutory or other prohibition of a redevelopment agency's tardy functioning, nor does it appear that its acts after such a nonfunctioning hiatus of two years are invalid. It would be wholly unreasonable to ascribe a legislative intent that the functioning of a redevelopment agency with current contracts and commitments, and other ongoing activity--in which the public interest and rights of others are deeply involved--might be abruptly terminated, because some years earlier there had been a two-year gap of inactivity. "'The mere literal construction of a section in a statute ought not to prevail if it is opposed to the intention of the legislature apparent by the statute; and if the words are sufficiently flexible to admit of some other construction it is to be adopted to effectuate that intention. The intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act."' (Friends of Mammoth v. Board of Supervisors, 8 Cal.3d 247, 259, 104 Cal.Rptr. 761, 769, 502 P.2d 1049, 1057.) And it is 'the duty of the courts, whenever possible, to...