W. W. Dean & Associates v. City of South San Francisco

Decision Date07 April 1987
Citation236 Cal.Rptr. 11,190 Cal.App.3d 1368
CourtCalifornia Court of Appeals Court of Appeals
PartiesW.W. DEAN & ASSOCIATES et al., Plaintiffs and Respondents, v. CITY OF SOUTH SAN FRANCISCO et al., Defendants and Respondents; South San Francisco Citizens For Our Mountain, Intervenor and Appellant. A033116.

Ann Broadwell, Thomas R. Adams, Adams, Broadwell & Russell, San Mateo, for intervenor and appellant.

William W. Sterling, Peter H. Goldsmith, Heller, Ehrman, White & McAuliffe, Howard N. Ellman, John D. Hoffman, Ellman, Burke & Cassidy, San Francisco, for plaintiffs and respondents.

No appearance for defendants and respondents.

SCOTT, Associate Justice.

In issue is whether the adoption by the City Council of the City of South San Francisco (City) of an amendment to a development plan formulated pursuant to the Endangered Species Act of 1973 (16 U.S.C. § 1531 et seq.) (Act) constitutes an administrative act not subject to referendum. The lower court answered in the affirmative and issued a writ of mandate prohibiting a referendum election. We affirm.

I Standard of Review on Appeal

We follow the usual standard of appellate review. Our review is limited to a determination of whether there was substantial evidence to support the judgment of the trial court issuing the writ of mandate. (Appelgate v. Dumke (1972) 25 Cal.App.3d 304, 314, 101 Cal.Rptr. 645; Sunseri v. Board of Medical Examiners (1964) 224 Cal.App.2d 309, 313, 36 Cal.Rptr. 553.) The facts are viewed in the light most favorable to the findings of the trial court. (Appelgate, supra, 25 Cal.App.3d at pp. 307, 315, 101 Cal.Rptr. 645.)

II Background on Development of San Bruno Mountain

San Bruno Mountain (Mountain) contains approximately 3,600 acres of land. In 1980, respondent Visitacion Associates, in response to intense opposition to development, donated and sold approximately 2,000 acres which it owned to San Mateo County and the State of California and agreed to limit development to one-third of the mountain. Shortly thereafter, it was discovered that the Mission Blue butterfly, which had been listed by the United States Fish and Wildlife Service (Service) as an endangered species in 1976, inhabited the Mountain. Further development, therefore, was restricted by the Act. In response, representatives of the City and County of San Mateo (County), the City, the Service, and the Committee to Save San Bruno Mountain, among others (collectively the Committee) initiated a biological study to determine whether development would result in the extermination of the species. The study concluded that because of encroaching brush, the butterflies' continued existence was threatened even without development. On the basis of the study, the Committee began formulating a plan which would both protect endangered habitat and allow for limited development.

In 1982, Congress, aware of and in recognition of the value of such a plan, amended section 10(a) of the Act (16 U.S.C. § 1539) 1 to provide more flexibility in the regulation of development affecting endangered species. The purpose of the amendment was to allow developers to submit to the Secretary of the Interior "conservation plans which provide long-term commitments regarding the conservation of ... species and long-term assurances to the proponent of the conservation plan [i.e., developer] that the terms of the plan will be adhered to and that further mitigation requirements will only be imposed in accordance with the terms of the plan." (H.R.Conf.Rep. No. 97-835, 97th Cong., 2d Sess., supra, p. 30 (1982), U.S.Code Cong. & Admin.News 1982, pp. 2807, 2871.) Congress specifically addressed the issue of amendments to the plan: because "circumstances and information may change over time and ... the original plan might need to be revised ... any plan approved for a long-term permit will contain a procedure by which the parties will deal with unforeseen circumstances." (H.R.Conf.Rep. No. 97-835, 97th Cong., 2d Sess., supra, p. 31 (1982), U.S.Code Cong. & Admin.News 1982, p. 2872.)

Thereafter, the Committee finalized a habitat conservation plan (HCP) and a contract to implement the HCP (HCP Agreement). The HCP Agreement was signed by the Service, the California Department of Fish and Game, the California Department of Parks and Recreation, the County, the City, Visitacion Associates, respondent W.W. Dean & Associates (the holder of an option to purchase a 337-acre parcel from Visitacion Associates) (Dean), and others. Following a long period of public review and public hearings, which included the preparation of an environmental impact report (EIR) pursuant to state law, the City approved by resolution in November 1982 the execution of the HCP Agreement. Both appellant and respondents agree that the resolution constituted legislative action. The resolution was not challenged by the referendum process.

The HCP establishes a program for the enhancement of the ecology of all remaining open space on the Mountain. The HCP and HCP Agreement provide for the dedication of approximately 800 acres for open space (in addition to the 2,000 acres previously sold or dedicated), a supervised program of habitat conservation and enhancement, permanent private funding for conservation based upon initial developer contributions and subsequent homeowner assessments, and residential and commercial development within defined boundaries.

The HCP and HCP Agreement set forth a detailed procedure for amendments. Section IX of the HCP Agreement, entitled "Amendments," subsection B, provides for amendments after (1) a noticed public hearing; (2) written approval of the landowners affected by the amendment, the jurisdiction with local land use authority, the County, and the Service, and (3) a biological study which demonstrates that the amendment will not conflict with the primary purpose of the HCP. Subsection B further provides: "Approval of amendments pursuant to this Section IX(B) is subject to the consent of only those entities mentioned in Section IX(B) and no other entities." 2 (Emphasis added.) The City then sought a development permit from the Secretary of the Interior based upon the HCP pursuant to section 1539 of the Act. The permit was issued. 3

The City subsequently approved, after public hearing, Dean's specific plan for the development of the south slope area of the Mountain (Terrabay Project), which was consistent with the City's amended general plan and the HCP. The specific plan provided that the grading proposals should "be considered informational only" and that detailed soil and geotechnical studies would be prepared and their recommendations implemented. Dean then had prepared soils and geotechnical studies which disclosed soil instability in areas designated for preserved habitat which could develop into hazardous landslide problems if Dean's project went forward. The City therefore required Dean to seek an amendment to the HCP, HCP Agreement, and permit to allow slide repairs in these unstable areas. Without the amendment, the Terrabay Project could not go forward because there was no feasible redesign alternative. The amendment Dean ultimately proposed (in accordance with the findings of a supplemental EIR) provided for the elimination of 24 residential units and additional upslope grading with retaining walls in areas designated for habitat conservation. The amendment requires temporary disturbance of approximately 25 acres designated for conservation, with a minimal short-term impact on the total Mission Blue Mountain population. The amendment also requires Dean to fund offsite habitat enhancement on an additional 30 acres which were not originally scheduled for enhancement under the HCP. The supplemental EIR addressed the amendment's visual impact: "... these changes are imperceptible and are insignificant by comparison to the visual impact resulting from the presence of the development itself."

The City followed the procedure for adoption of amendments under section IX.B. of the HCP Agreement, set forth infra. The City obtained the consent of the City, the County, and the Service; the amendment was supported by a biological study showing it was consistent with the objectives of the HCP; and the City held a public hearing on the proposed amendment. The City approved the amendment by resolution No. 156-85 on July 10, 1985.

Following the City clerk's certification of the necessary signatures on a referendum petition, the City council voted to set a referendum election on the amendment. In response, respondents filed in the superior court a petition for writ of mandate enjoining the City from holding the referendum election. Following extensive briefing and a hearing on the petition, the court found the amendment constituted merely an implementation of the legislative policies already enunciated after extensive hearings, and therefore was an administrative act not subject to referendum.

III Governing Statutory and Case Law

Legislative acts of a city which establish general policies and objectives, and the ways and means of accomplishing them, are subject to the referendum process. (Merriman v. Board of Supervisors (1983) 138 Cal.App.3d 889, 891, 188 Cal.Rptr. 343; Fishman v. City of Palo Alto (1978) 86 Cal.App.3d 506, 509, 150 Cal.Rptr. 326.) Administrative actions, which merely carry out those policies and objectives and are necessary to implement the ways and means already adopted by the Legislature, are not subject to referenda. (Ferrini v. City of San Luis Obispo (1983) 150 Cal.App.3d 239, 249, 197 Cal.Rptr. 694; Fishman, supra, 86 Cal.App.3d at p. 509, 150 Cal.Rptr. 326; Lincoln Property Co. No. 41, Inc. v. Law (1975) 45 Cal.App.3d 230, 119 Cal.Rptr. 292.) "This legislative-administrative dichotomy reflects a determination to balance the ideal of direct legislation by the people against the practical necessity of freeing municipal governments...

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