SOUTHERN ALAMEDA SP. SPEAK. ORG. v. City of Union City

• Decision Date: 15 January 1970
• Docket Number: No. 51590.,51590.
• Citation: 314 F. Supp. 967
• Court: U.S. District Court — Northern District of California
• Parties: SOUTHERN ALAMEDA SPANISH SPEAKING ORGANIZATION (also known as SASSO) et al., Plaintiffs, v. CITY OF UNION CITY et al., Defendants, James E. Hobbs, Mary C. Hobbs, et al., Intervenors.

314 F. Supp. 967

SOUTHERN ALAMEDA SPANISH SPEAKING ORGANIZATION (also known as SASSO) et al., Plaintiffs, v. CITY OF UNION CITY et al., Defendants James E. Hobbs, Mary C. Hobbs, et al., Intervenors.

No. 51590.

United States District Court, N. D. California.

January 15, 1970.

Cruz Reynoso, San Francisco, Cal., Richard F. Bellman, c/o NCDH, New York City, D'Army Bailey, San Francisco, Cal., for plaintiffs.

John Trump, of Bell, Trump, Sheppard & Raymond, Fremont, Cal., for defendants.

MEMORANDUM OF DECISION

SWEIGERT, District Judge.

This action is brought by the Southern Alameda Spanish Speaking Organization (SASSO) against the City of Union City, Alameda County, and its officials, to compel the defendants to take all steps necessary, including multi-family dwelling zoning, to enable plaintiff to build and occupy a housing project in the Baker Road section of the city.

The case is now before the court on plaintiffs' application for the convening of a three-judge court and issuance of a preliminary injunction.

In January, 1969, SASSO obtained an option to purchase the Baker Road property and proposes to construct thereon a 280 unit, federally funded, low and moderate income housing project.

Since 1962 the area had been zoned as agricultural-single family residential but, at the request of SASSO, the City Council on April 7, 1969, adopted a zoning ordinance, No. 55.49-69, providing for a variance permitting multi-family residential use.

This ordinance, however, never went into effect because community opponents of the proposed housing project, invoking California Election Code Sections 4051, 4052, commenced and perfected referendum proceedings.

After an unsuccessful attempt by plaintiff to have this court enjoin the holding of the referendum election, the city-wide referendum election was held on July 29, 1969 and resulted in rejection by the voters of Ordinance 55.49-69 by a vote of 1149 to 845.

Since Ordinance 55.49-69 never became effective, the proposed building site remains as previously zoned, i. e., for agricultural-single family residential¹ and plaintiff finds itself unable to proceed with its housing project unless this court declares and orders the defendants to take all steps necessary to enable plaintiffs to proceed with their housing project notwithstanding the referendum rejection by the electorate of Ordinance 55.49-69.

As ground for such relief plaintiff argues that the California referendum law, Election Code §§ 4051, 4052, is unconstitutional as applied to the referendum of a zoning ordinance, citing and relying upon cases holding that a zoning ordinance, which purports to give to a stated percentage of property ownership the right to zone for a whole area without any specified standards, is invalid as a violation of the due process requirements of the 14th Amendment. Washington ex rel. Seattle Title Trust Company, Trustee, etc. v. Roberge, 278 U.S. 116, 49 S.Ct. 50, 73 L.Ed. 210 (1928); Eubank v. City of Richmond, 226 U.S. 137, 33 S.Ct. 76, 57 L.Ed. 156 (1912); Nectow v. City of Cambridge, 277 U.S. 183, 48 S.Ct. 447, 72 L.Ed. 842 (1928); Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926).

The rationale of these cases is that zoning ordinances have their justification under the police power of government and must bear some substantial relationship to the public health, safety, morals or general welfare and that any zone ordinance which broadly vests in some landowners the power to arbitrarily, capriciously or selfishly control the land use of other landowners, is invalid.

For this reason most zoning ordinances are carefully drawn with requirements for notice to property owners and public hearing, e. g., Cal.Govt.Code § 65800 et seq., under which the City of Union City derives its power to adopt zoning ordinances.

All the above cited cases involved the constitutionality of zoning ordinances, as such, and, of course, the constitutionality of zoning ordinances may be challenged for failure to meet the standards laid down by the Supreme Court.

The pending case, however, does not involve the constitutionality of a zoning ordinance. Plaintiffs here do not challenge zoning Ordinance No. 55.49-69; on the contrary, they invoke this ordinance and claim benefits under it.

Plaintiffs here are challenging, not the zoning ordinance, but the California referendum statute (Election Code §§ 4051, 4052), contending that the referendum statute cannot be constitutionally applied to refer a zoning ordinance to the electorate for approval or rejection because such a referendum would permit the electorate to regulate land use without any binding standard or guide and thus arbitrarily and capriciously within the meaning of the cases above mentioned.

We are of the opinion that plaintiff's reliance on the above cases as an analogy for holding that a referendum may not be constitutionally applied to zoning ordinances, is misplaced.

Unlike initiative legislation² the referendum statute does not, itself, purport to zone property or regulate its use. Such a statute is neutral, so far as the subject matter of the referendum is concerned, and merely provides a method for staying the effect of legislation, in this case zoning Ordinance No. 55.49-69, until the electorate has had an opportunity to either approve or reject it.

When, as in this case, the electorate rejects the legislation the effect is, not to zone property or even to change the zoning of property, but merely to prevent the zoning ordinance as adopted by the City Council, from ever becoming effective. The property in question, being unaffected by the ordinance, remains, so far as zoning is concerned, either unzoned or, if previously zoned, as in this case, then in the classification of the previous zoning, i. e., agricultural-single family residential.

Plaintiffs do not challenge the validity of the previous zoning classification of the property in question; they have merely sought to have that classification changed through Ordinance No. 55.49-69 but without success because of the electorate's rejection of that ordinance at the referendum election.

For these reasons the above cited cases, relied on by plaintiff, are wholly inapplicable and do not require, as argued by plaintiff, a holding that an otherwise valid referendum statute may not be constitutionally used to submit a zoning ordinance to the electorate for approval or rejection.

In Johnston v. City of Claremont, 49 Cal.2d 826, 836-838, 323 P.2d 71, Cal.Supreme Court, 1958, the California Supreme Court specifically held that zoning ordinances or amendments of zoning ordinances, are legislative acts and, as such, are subject to the state's referendum procedures.³

In Ranjal v. City of Lansing, 417 F.2d 321 (6th Cir. 10/28/69), the Court of Appeals reversed a District Court order enjoining the holding of a referendum election on a spot zoning ordinance passed by a city council, pointing out that the referendum is an important part of a state's legislative process and, being founded on neutral principles, should be exempt from federal court restraints, and, further, that if electors have a legal right to referendum, their motive in invoking that right would be immaterial even if such could be ascertained.

In Spaulding v. Blair, 403 F.2d 862 (4th Cir. 1968), the Court of Appeals affirmed the District Court's dismissal of an action brought to prevent submission of certain open housing legislation to referendum election, pointing out that the constitutional validity of our federalism depends in large measure on the state's legislative processes being exempt from federal court restraints to the extent that the states do not significantly involve themselves in deprivation of fundamental rights; that the holding of a referendum is neutral and, even if the voters fail to adopt the measure, this would not, itself, constitute such forbidden involvement; that the rejection of a referendumed measure does not and cannot derogate from any constitutionally guaranteed rights otherwise involved.

It is true that in Hunter v. Erickson, 393 U.S. 385, 89 S.Ct. 557, 21 L.Ed.2d 616 (1969) the Supreme Court held invalid a city charter provision to the effect that any ordinance regulating real property "on the basis of race, color, religion, natural origin or ancestry" must first be approved by a majority of the electors, i. e., an automatic referendum, on the ground that the charter provision was discriminatorily directed only to ordinances regulating property on the basis of race, etc., thus disadvantaging those minorities who would benefit from laws barring racial discrimination. However, we view that decision, as did Harlan, J., and Stewart, J., (pp. 393-396, 89 S.Ct. 557), as recognizing that, if it had not been for the selective and discriminatory nature of the charter referendum provision, there could have been no objection to a referendum of such fair housing or other legislation, under a referendum law of general application and founded on neutral principles.

California's referendum statute, Election Code Sections 4051, 4052, authorized by its Constitution, Art. IV, Sec. I and under which the referendum here questioned was authorized and conducted, is not selective or discriminatory (as was the referendum provision involved in Hunter v. Erickson). It is not, therefore, a disadvantage to any particular class that would benefit from any particular kind of legislation. The California referendum statute applies quite broadly to all kinds of legislation and, therefore, groups interested in obtaining or changing property zoning are put to no greater disadvantage in the legislative process than other groups interested in other kinds of legislation.

Having in mind the established constitutionality and basic importance of state referendum statutes, this court concludes that plaintiff's attack upon the constitutionality of the California referendum statute, as applied...