Molloy v. Vu

• Decision Date: 31 October 2019
• Docket Number: D075593
• Citation: 42 Cal.App.5th 746,255 Cal.Rptr.3d 679
• Court: California Court of Appeals Court of Appeals
• Parties: Scott MOLLOY, Plaintiff and Appellant, v. Michael VU, as Registrar of Voters, etc., et al., Defendants and Respondents; Francis J. Eason et al., Real Parties in Interest and Respondents.

42 Cal.App.5th 746

255 Cal.Rptr.3d 679

Scott MOLLOY, Plaintiff and Appellant,

v. Michael VU, as Registrar of Voters, etc., et al., Defendants and Respondents;Francis J. Eason et al., Real Parties in Interest and Respondents.

D075593

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

Filed October 31, 2019

Gatzke Dillon & Ballance, Mark J. Dillon, David P. Hubbard, Escondido, Kurt G. Whitman ; The Sutton Law Firm, Bradley W. Hertz, James R. Sutton, Matthew C. Alvarez, San Francisco; Sheppard, Mullin, Richter & Hampton and John Ponder for Plaintiff and Appellant.

Thomas E. Montgomery, County Counsel, and Stephanie Karnavas, Deputy County Counsel, for Defendants and Respondents, Michael Vu and San Diego County Board of Supervisors.

Latham & Watkins, Christopher Garrett, Taiga Takahashi, Samantha K. Seikkula, San Diego; Nielsen Merksamer Parrinello Gross & Leoni, Sean P. Welch and Hilary J. Gibson, San Rafael, for Real Parties in Interest and Respondents, Francis J. Eason, Tricia Trupiano, Committee Against Newland Sierra and Bad Development, Committee Major Funding from Golden Door Properties, and Golden Door Properties, LLC.

Shute, Mihaly & Weinberger, Robert S. Perlmutter, San Francisco, for Elfin Forest Harmony Grove Town Council, Endangered Habitats League; Cleveland National Forest Foundation, Sierra Club; Center for Biological Diversity, and Mark Jackson as Amici Curiae on behalf of Real Parties in Interest.

O'ROURKE, J.

The San Diego County (County) Board of Supervisors approved an amendment to the County's general land use plan, which would allow for the development of over 2,100 homes in a previously designated rural area of the County. Residents opposed to the change in land use circulated a referendum petition and gathered enough signatures to have the matter placed on an election ballot. To prevent an election, the land developer filed a petition for writ of mandate in superior court, contending the referendum petition was illegal and void as a matter of law. The court denied the writ petition.

The issues presented in this appeal are (1) whether the referendum petition complied with the full text requirement under Elections Code section 9147¹ and (2) the referendum petition's legality in challenging a single legislative act even though the Board of Supervisors executed several concurrent, associated legislative acts. For reasons we explain, we affirm the trial court's decision denying the petition for writ of mandate.

FACTUAL AND PROCEDURAL BACKGROUND²

Land use in the County is governed by a general plan. ( Gov. Code, § 65300 et seq. ["the legislative body of each county ... shall adopt a comprehensive, long-term general plan for the physical development of the county"].) In 2011, the County thoroughly updated its general plan, and in that process, designated certain land north of San Marcos as "rural." As part of this general plan update in 2011, the County also adopted the North County Metropolitan Subregional Plan (subregional plan). The subregional plan adopted the same land use designations as used in the general plan for implementation purposes, as follows:

"A. the North County Metropolitan Subregional Plan, as part of the County General Plan, must conform to the County General Plan; and

"B. the Land Use Element contains a full description of the Land Use Designations that will be used to implement each of the County's Community and Subregional plans.

"THE LAND USE DESIGNATIONS CONTAINED IN THE LAND USE ELEMENT ARE HEREBY ADOPTED BY REFERENCE AND WILL BE USED TO IMPLEMENT THIS SUBREGIONAL PLAN."

Examples of residential land use designations include "semi-rural" and "rural." Permissible housing densities under these land use designations are generically described in a chapter of the general plan entitled "Land Use Element."³ For instance, the land use element instructs as to rural lands, "[t]he densities provided by these designations are the lowest in the unincorporated County—ranging from one dwelling unit per 20 gross acres, to one dwelling unit per 80 gross acres—and are intended to reflect and preserve the rural agricultural, environmentally constrained, and natural ‘backcountry’ areas of the County (see Table LU-1)." Under the land use element, semi-rural housing densities range from one dwelling unit per half acre to one dwelling unit per ten gross acres.

Newland Sierra Development Project

In 2015, Newland Sierra sought to develop a mixed-use community located on a 1,985-acre site that, once constructed, would consist of 2,135 homes, 81,000 square feet of commercial uses, a six-acre school site, 35.87 acres of public and private parks, 19.2 miles of trails, an equestrian staging area, and 1,209 acres of permanently dedicated and managed open space. The proposed development site was on unincorporated County land, west of Interstate 15, north of San Marcos, and within "the North County Metropolitan Subregional Plan Area." The proposed development would require, at minimum, a modification to the County's 2011 general plan. Newland Sierra took steps to implement its project, including applying to the County for a general plan amendment, specific plan, and zone reclassification.

On September 26, 2018, in connection with the Newland Sierra project, the County Board of Supervisors performed three legislative acts. The Board (1) adopted Resolution No. 18-141, approving a general plan amendment (GPA resolution); (2) adopted Resolution No. 18-142, approving a specific plan (specific plan resolution); and (3) approved Ordinance No. 10565, changing the zoning classification of the proposed development site (rezoning ordinance).

The challenged legislative act in this case is the GPA resolution. The narrative portion of the GPA resolution is two pages long, followed by a certification page and five attached exhibits lettered A through E, all of which totals about 66 pages. The GPA resolution adopts a general plan amendment, "PDS2015-GPA-15-001, which consists of amendments to the Land Use Element Map, Mobility Element, North County Metropolitan Subregional Plan, Bonsall Land Use Map, and the I-15 Corridor Subregional Plan as identified in the exhibits below :

Exhibit A: Land Use Element - Regional Category Maps Exhibit B: Land Use Element - Land Use Designations Maps

Exhibit C: Mobility Element - North County Metropolitan

Mobility Element Network Figure M-A-12

Exhibit D: North County Metropolitan [Subregional] Plan

Exhibit E: I-15 Corridor Subregional Plan[.]"

(Italics added.)

Of relevance here, exhibits A and B consist of maps showing land areas and their corresponding land use designations; compared to previous maps, exhibits A and B show less rural land (shaded green) and more semi-rural land (shaded yellow). Exhibit D is the 2011 subregional plan with amendments identified in redline, namely, a new "chapter 7" entitled "Newland Sierra Specific Plan." Within exhibit D is the unamended language from 2011 that adopted by reference the generic land use designations from the land use element of the general plan.

There was substantial public opposition to the Board of Supervisor's approval of the GPA resolution, both preceding and following the Board's action. Real parties in interest (referred to herein as Golden Door for simplicity), obtained a certified copy of the 66-page GPA resolution from the clerk of the County Board of Supervisors and, within two days of the Board's action, began circulating a referendum petition to prevent the GPA resolution from taking effect. Within 30 days of the Board's action, Golden Door submitted the referendum petition to the County Registrar of Voters with about 95,000 "projected valid" voter signatures, well exceeding the number of required signatures to have the GPA resolution placed on a ballot.⁴

Petition for Writ of Mandate

In November 2018, Scott Molloy⁵ filed a petition for writ of mandate in superior court against Michael Vu, in his capacity as Registrar, and the County Board of Supervisors, alleging six causes of action relating to Golden Door's referendum petition: (1) violation of the full text rule under section 9147, subdivision (b) ; (2) violation of form requirements under section 9147, subdivision (a) ; (3) violation of section 9147, subdivision (b) and Government Code sections 65454, 65860, and 65862 for seeking to repeal only the GPA resolution but not any associated legislative actions; (4) false and misleading tactics to deceive voters into signing the referendum petition; (5) injunctive relief; and (6) declaratory relief. Through his writ petition, Molloy sought to enjoin placement of the referendum matter on any ballot and have the referendum petition declared invalid.

Following full briefing, the trial court held a hearing on Molloy's petition for writ of mandate in December 2018. On January 9, 2019, the court entered an order denying Molloy's petition in its entirety. This appeal followed.⁶

DISCUSSION

I. Standard of Review

The parties agree that our review is de novo because this case presents only questions of law based on undisputed facts. ( Lin v. City of Pleasanton (2009) 176 Cal.App.4th 408, 416, 96 Cal.Rptr.3d 730 ( Lin ).)

II. The Full Text Requirement

Molloy claims the referendum petition violated the full text requirement under section 9147, subdivision (b) because it did not include the land use designation descriptions from the land use element of the general plan in addition to the challenged 66-page GPA resolution, which was included.

Section 9147, subdivision (b) states: "Each section of the referendum petition shall contain the title and text of the ordinance or the portion of the ordinance which is the subject of the referendum."⁷ Interpretive case law has held that a valid referendum petition must contain the full, complete text of the challenged legislation, including documents and exhibits physically attached to the challenged law. (E.g., Nelson, supra , 17 Cal.App.4th at p. 740, 21 Cal.Rptr.2d 485 [analyzing similarly worded provision of ...