Opinion
G045770 Super. Ct. No. 30-2010-00416256
12-02-2011
CITY OF SANTA ANA et al., Petitioners, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; COALITION FOR ACCOUNTABLE GOVERNMENT ETHICS et al., Real Parties in Interest.
City of Santa Ana Office of the City Attorney, Jose Sandoval, Chief Assistant City Attorney, for Petitioners. No appearance for Respondent. Wildish & Nialis and Daniel R. Wildish for Real Parties in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, Derek W. Hunt, Judge. Petition granted.
City of Santa Ana Office of the City Attorney, Jose Sandoval, Chief Assistant City Attorney, for Petitioners.
No appearance for Respondent.
Wildish & Nialis and Daniel R. Wildish for Real Parties in Interest.
The City of Santa Ana (the City) seeks extraordinary relief from a judgment declaring an ordinance approving an amendment to a development agreement void and ordering the City to hold a referendum election on that amendment. The City argues the trial court erred in ruling that Elections Code section 9217 precludes any amendment to this development agreement absent a referendum election. (All further statutory references are to the Elections Code unless otherwise indicated.)
"The City" also refers collectively to additional petitioners the Santa Ana City Council and the Clerk of the City Council.
We conclude the City's contention has merit. Because the trial court's error is plain, we issue a peremptory writ of mandate in the first instance directing the trial court to vacate the judgment declaring the ordinance amending the development agreement void and ordering a referendum election on the amendment.
I
BACKGROUND
On August 2, 2004, the Santa Ana City Council adopted several land use measures needed for the development of a 37-story office tower on downtown property known as "One Broadway Plaza" (the project). Specifically, the City Council adopted: (a) an ordinance rezoning the property (Ordinance No. NS-2649), (b) an ordinance approving a development agreement (Ordinance No. NS-2656), and (c) a general plan amendment. The approved development agreement contained a requirement that 50% of the building be pre-leased before construction can begin.
A citizens group opposing the project tried to defeat it by circulating a referendum petition against the rezoning ordinance (Ordinance No. NS-2649). On October 4, 2004, the group succeeded in getting the referendum petition certified, thereby requiring the City Council to either repeal the rezoning ordinance or submit it to the voters for approval. (§§ 9237, 9241.) On November 15, 2004, the City Council voted to submit the rezoning ordinance to a vote of the people. The ballot measure was designated "Measure A." On April 5, 2005, the voters passed Measure A, approving the rezoning ordinance.
In the subsequent economic downturn, the developer found a major stumbling block to constructing the project: the 50% pre-leasing requirement in the development agreement. In 2010, the developer applied to the City to amend various provisions of the development agreement, including the 50% pre-leasing requirement. On August 2, 2010, the City Council approved an ordinance amending the development agreement in various respects, including, specifically, by eliminating the 50% pre-leasing requirement.
The developer of the project is One Broadway Plaza, LLC; 1200 N. Main, LLC; and 845 Broadway, LLC (collectively, the developer).
A new citizens group, Coalition for Accountable Government Ethics (CAGE) filed a lawsuit on October 13, 2010, challenging the ordinance approving the amendment to the development agreement. The lawsuit asserted that because the development agreement ordinance was adopted pursuant to a vote of the people ("[the] development agreement . . . was the subject of [a] voter-approved initiative"), section 9217 barred any amendment of the ordinance except by another vote of the people. CAGE's lawsuit sought a writ of mandate to command the City to call a referendum election on the ordinance amending the development agreement, as well as a declaration that the amendment ordinance was void.
Section 9217 states in pertinent part as follows: "No ordinance that is either proposed by initiative petition and adopted by the vote of the legislative body of the city without submission to the voters, or adopted by the voters, shall be repealed or amended except by a vote of the people, unless provision is otherwise made in the original ordinance."
The City opposed the lawsuit on three grounds. First, it asserted that section 9217 does not apply because the ordinance approving the development agreement (Ordinance No. NS-2656) was not the subject of the 2005 referendum election; rather, Measure A put only the rezoning ordinance (Ordinance No. NS-2649) before the voters. Second, the City contended that CAGE's lawsuit erroneously failed to name the developer as either a respondent or real party in interest, though the developer is an indispensible party to the action. The City argued that because the statutory deadline for doing so had passed, the action must be dismissed. (Govt. Code, § 65009.) Third, the City argued that even if the ordinance approving the development agreement had been the subject of the 2005 referendum, section 9217 applies only to initiative ordinances, not ordinances approved by referendum.
On May 12, 2011, CAGE's petition for a writ of mandate and complaint for declaratory relief came on for hearing. Two months later, the trial court issued a statement of decision in CAGE's favor, ordering a referendum election on the amendment to the development agreement. The court made two key rulings, both of which are challenged in this writ petition. First, the court held the developer was not an indispensible party because the developer had no "vested right" that would be affected by the decision on the writ of mandate. Second, section 9217 required voter approval of any amendment of the development agreement ordinance because that ordinance was enacted by the voters when they passed Measure A.
On August 11, the court entered judgment for CAGE in accord with its statement of decision. On August 30, the trial court denied the City's motion to vacate the statement of decision and the judgment.
The City filed this petition for a writ of mandate on September 12, 2011. We invited an informal response, which CAGE filed October 6. CAGE's response did not address the merits of the petition other than to direct this court to the statement of decision and judgment issued by the superior court. CAGE focused its argument only on the issue of the propriety of writ relief, asserting petitioner has an adequate remedy at law because it has filed an appeal from the writ of mandate decision, thereby staying the order for an election. (See Code of Civ. Proc., § 916, subd. (a); Varian Medical Systems., Inc. v. Delfino (2005) 35 Cal.4th 180, 189.)
On November 10, we issued an order advising CAGE this court is considering issuing a peremptory writ of mandate in the first instance, and offering CAGE the opportunity to submit a further informal response. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 179.) On November 17, CAGE filed an informal response, which we have read and considered.
Among other arguments in its informal response (which again did not address the petition's merits), CAGE objects to the City's recent filing of copies of correspondence outside of the record concerning a purported December 17, 2011, deadline for the issuance of building permits for One Broadway Plaza. CAGE requests leave to file a motion to strike this "improperly included material." No motion is needed. Because the documents are not properly before the court, we have not considered them.
For the reasons set forth below, we determine the trial court plainly erred in declaring the ordinance approving the amendment void and ordering the City to hold a referendum election on the amendment to the development agreement. Because the City's "entitlement to the relief requested is so obvious that no purpose could be served by plenary consideration of the issue," we issue a peremptory writ of mandate in the first instance. (Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1260.)
II
DISCUSSION
Though the City challenges the judgment on several grounds, one argument suffices to establish trial court error and the need for extraordinary relief. As the City aptly points out, section 9217, by its terms, applies only to an "ordinance . . . adopted by the voters" and the development agreement ordinance was not adopted by the voters. Consequently, the judgment worked an unwarranted interference with local government decision making.
The 2005 referendum election did not concern the development agreement ordinance. Instead, the Measure A election allowed voters to weigh in on one subject only: Ordinance No. NS-2649, the ordinance approving the rezoning of the project site. Both the referendum petition and the ballot pamphlet establish this fact irrefutably. Because this issue is one of law based on undisputed material facts, we review the trial court's decision de novo. (Defend Bayview Hunters Point Com. v. City and County of San Francisco (2008) 167 Cal.App.4th 846, 851 (Defend Bayview).)
We consider first the referendum petition. "Section 9238 establishes the required contents of a referendum petition challenging a municipal ordinance. Subdivision (b) of section 9238 provides, 'Each section of the referendum petition shall contain (1) the identifying number or title, and (2) the text of the ordinance or the portion of the ordinance that is the subject of the referendum.' The purpose of these requirements is to 'reduce confusion as to the contents of referendum petitions in the minds of electors.' [Citation.] A city clerk has a ministerial duty to reject a petition that violates section 9238, subdivision (b). [Citation.]" (Lin v. City of Pleasanton (2009) 176 Cal.App.4th 408, 416-417; but see Preserve Shorecliff Homeowners v. City of San Clemente (2008) 158 Cal.App.4th 1427, 1430 [declaring city residency requirement for referendum circulators in subd. (c) of § 9238 unconstitutional].)
The 2005 referendum petition contained the following identifying title: "REFERENDUM AGAINST AN ORDINANCE PASSED BY THE CITY COUNCIL[,] ORDINANCE NO. NS-2649[.]" The first paragraph of the referendum petition stated: "We, the undersigned, registered and qualified voters of the City of Santa Ana hereby present this petition protesting the adoption of Ordinance No. NS-2649. The full and complete text of Ordinance No. NS-2649 is attached to this petition. We request that Ordinance No. NS-2649 be entirely repealed by you or submitted to a vote of the people as prescribed by law to determine whether or not Ordinance No. NS-2649 should be repealed." As stated in its opening paragraph, the referendum petition included the complete text of Ordinance No. NS-2649, the rezoning ordinance; it did not include the text of Ordinance No. NS-2656, the ordinance approving the development agreement.
Given that the 2005 referendum petition did not contain the identifying number, title, or text of the development agreement ordinance, that ordinance could not have been the subject of the referendum election as a matter of law. Under section 9238, the referendum petition must give "prospective signers . . . adequate information about the substance of a proposed ordinance to make an informed decision about whether to sign the referendum petition." (Defend Bayview, supra, 167 Cal.App.4th at p. 858 [affirming rejection of referendum petition for noncompliance with § 9238 because text did not disclose substance of challenged ordinance]; accord Billig v. Voges (1990) 223 Cal.App.3d 962, 966 [applying predecessor statute].)
The ballot pamphlet provides further proof that the 2005 referendum petition did not concern the development agreement ordinance. The ballot pamphlet for Measure A states the question presented to voters as follows: "Shall the City of Santa Ana enforce Ordinance NS-2649 permitting the development of One Broadway Plaza, a 37 story office building and related retail improvements and parking?" The ballot pamphlet further explains the "Meaning of Voting Yes/No" in simple terms: "A YES vote on this measure means: [¶] The City of Santa Ana will permit development of One Broadway Plaza per Ordinance NS-2649[.] [¶] A NO vote on this measure means: [¶] The City of Santa Ana will be prohibited from enforcing Ordinance NS-2649." Moreover, the "Impartial Analysis" from the City Attorney included in the ballot pamphlet identifies Ordinance NS-2649 as the subject of the referendum election and describes the effect of the ordinance, if approved, as "rezoning approximately 4.32 acres . . ." in a specified area of downtown. Finally, the full text of Measure A as set forth in the ballot pamphlet under the title "ORDINANCE No. NS-2649" is essentially a three-page detailed description of the zoning changes to be enacted with the passage of Ordinance No. NS-2649. The text does not mention the development agreement.
We conclude the administrative record does not support the trial court's finding that the 2005 referendum approved the development agreement ordinance. Measure A was a vote on the rezoning ordinance alone. Because the development agreement ordinance was not a voter-adopted ordinance, section 9217 does not require voter approval for its amendment. Consequently, the trial court erred in declaring the ordinance amending the development agreement void and ordering the City to submit the amendment ordinance to a vote of the people.
Given this finding, we need not consider the City's other arguments that CAGE failed to include an indispensable party or that section 9217 applies only to initiative ordinances and not to an ordinance approved by referendum.
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III
DISPOSITION
A peremptory writ of mandate shall issue directing the superior court to vacate the judgment declaring the ordinance amending the development agreement void and ordering the City to hold a referendum election on the amendment ordinance. The writ of mandate shall further direct the superior court to enter a new judgment denying CAGE's complaint for declaratory relief and petition for a writ of mandate.
O'LEARY, J. WE CONCUR: RYLAARSDAM, ACTING P. J. MOORE, J.