Associated Home Builders of Greater Eastbay, Inc. v. City of Livermore

CLARK, J.

I dissent.

The zoning provisions of our law applicable to general law cities and the initiative provisions are clearly in conflict as recognized in Hurst v. City of Burlingame (1929) 207 Cal. 134 [277 P. 308]. A long line of decisions by this court and the Courts of Appeal has followed Hurst. (E.g., Johnston v. City of Claremont (1958) 49 Cal.2d 826, 836-837 [323 P.2d 71]; Simpson v. Hite (1950) 36 Cal.2d 125, 134 [222 P.2d 225]; Taschner v. City Council (1973) 31 Cal.App.3d 48, 61 et seq. [107 Cal.Rptr. 214]; Laguna Beach Taxpayers’ Assn. v. City Council (1960) 187 Cal.App.2d 412, 415 [9 Cal.Rptr. 775]; see San Diego Bldg. Contractors Assn. v. City Council (1974) 13 Cal.3d 205, 215 [118 Cal.Rptr. 146, 529 P.2d 570, 72 A.L.R.3d 973].) Until today, it was held that because of the conflict general law cities’ zoning ordinances were not subject to enactment by initiative. The rationale was: the statute conferring upon the legislative body the power to enact zoning prescribes the enactment method thereby establishing the measure of the power to enact; where a state act specifies the steps to be followed by the local body in enacting legislation, the initiative could not be used unless the steps were taken, and the steps required for zoning ordinances could not be followed within the initiative process. (Id.) The reasoning is compelling and indeed conclusive; I would not overrule Hurst and the numerous cases following it.

When we look at constitutional and statutory provisions governing zoning, related matters, and initiative process, the conflict is apparent.

Zoning

As pointed out in Hurst, a general law city is limited in the exercise of its powers by the Constitution and the general laws. (207 Cal. at p. 138; *612see Bishop v. City of San Jose (1969) 1 Cal.3d 56, 61 [81 Cal.Rptr. 465, 460 P.2d 137].) The power of a general law city to zone is derived from article XI, section 11: “A county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.” (Italics added; Miller v. Board of Public Works (1925) 195 Cal. 477 [234 P. 381, 38 A.L.R. 1479], 483; People v. Johnson (1955) 129 Cal.App.2d 1, 5 [277 P.2d 45].)1

The Legislature has specifically authorized general law cities and counties to adopt zoning ordinances, enumerating many of the types of zoning regulations. (Gov. Code, §§ 65800, 65850.) Government Code section 65802 provides that the procedures for enactment of zoning laws are exclusive: “No provisions of this code, other than the provisions of this chapter, and no provisions of any other code or statute shall restrict of limit the procedures provided in this chapter by which the legislative body of any county or city enacts, amends, administers, or provides for the administration of any zoning law, ordinance, rule or regulation.”

The Legislature has expressly provided that a zoning ordinance changing property from one zone to another or imposing or removing any of the numerous regulations set forth in Government Code section 65850 shall be adopted in the manner specified in sections 65854 to 65857 inclusive. (Gov. Code, § 65853.)

The procedure established provides for notice and hearing by the planning commission, a written report and recommendation by the planning commission including specification of the relationship of the proposed ordinance to general and specific plans, public hearings by the city council or board of supervisors after notice, and a further report by the planning commission in the event of modification by the legislative body. (Gov. Code, §§ 65854-65857.) Interim ordinances may be adopted as urgency measures prohibiting uses in conflict with a contemplated zoning proposal but only by four-fifths vote and only for a short period' of time. (Gov. Code, § 65858.) Zoning ordinances are required to be consistent with the general plan. (Gov. Code, § 65860.) Extensive provisions regulate adoption and amendment of the general plan. (Gov. *613Code, §§ 65300-65552.) There is also provision for variances. (Gov. Code, § 65906.)

Although the zoning power is legislative, administrative duties in addition to the ones in the above code sections have been imported into the zoning process. Legislative bodies adopting zoning ordinances are not free to merely follow the interests of their constituents but must give consideration to the interests of residents of nearby communities. (Scott v. City of Indian Wells (1972) 6 Cal.3d 541, 546-549 [99 Cal.Rptr. 745, 492 P.2d 1137].) Recently, this court held that the California Environmental Quality Act (Pub. Resources Code, § 21050 et seq.) applied to zoning ordinances, that environmental impact reports must be prepared in cases of significant environmental impact, and that legislative bodies are required to. make a written finding of no significant impact before enacting zoning ordinances if the report is not prepared. (No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 79 et seq. [118 Cal.Rptr. 34, 529 P.2d 66].)

Initiative

Article IV, section 25 of our Constitution provides: “Initiative and referendum powers may be exercised by the electors of each city or county under procedures that the Legislature shall provide.” Proponents of an initiative in a city must give notice thereof and then circulate petitions to voters. (Elec. Code, §§ 4000-4009.) If the requisite number of signatures are obtained, the ordinance is presented to the legislative body which may adopt it without change. (Elec. Code, §§ 4011, 4012.) If within 10 days it fails to adopt, the proposed ordinance must be submitted to the voters at a special or general election. (Id.) If the legislative body adopts the proposed ordinance without submission to the voters or if upon submission a majority of the voters approve, the proposed ordinance goes into effect, and the ordinance may not be repealed or amended except by vote of the People unless provision is otherwise made in the original ordinance. (Elec. Code, § 4015.)

Conflict

The zoning law and the initiative law conflict in a number of respects. Fundamentally, the zoning statutes contemplate that to achieve orderly and wise land use regulation any change in zoning ordinances is not to *614be made until the experts in the field have had an opportunity to evaluate the effects of the change after noticed hearing and report. Further, the zoning law contemplates that in evaluating zoning changes, the legislative body must refer modifications not covered by the initial report to the planning commission. Such reports as to the instant ordinance would show, for example, which lots are zoned solely for residential use and might indicate the potential liability, if any, of the city in inverse condemnation.2 The reports would probably indicate the anticipated effect of the ordinance on surrounding communities. Preparation of reports might also lead to clarification; for example, it is unclear whether the ordinance is limited to permits for new residences or extends to permits for additions to and modifications of existing residences. The environmental impact report might show potential increases in automobile congestion and air pollution which might result because adoption of the ordinance may require many people to commute to work in Livermore.

Because of the short time limitation in the initiative, the proposed initiative ordinance must be adopted without the notice, hearings, and reports the Legislature has required for zoning changes. The initiative law conflicts with the zoning law by permitting the voters or the city council to adopt the ordinance without compliance with the specified procedures designed to insure orderly land use planning.

There are additional conflicts and potential conflicts. There is no assurance that interests of nearby residents will be considered by the electorate, although such consideration is required. There is no procedure under the initiative law for determining compliance with the general plan as required by statute. Because the city council must either reject or accept the proposed ordinance without change, it does not have the opportunity to impose conditions and modifications in the initiative process as provided in the zoning statutes. There are potential conflicts between the initiative law’s requirement that amendment be by the voters and the zoning law’s provision for variances, and between the majority vote of the initiative and the zoning law’s specific requirements for interim zoning.

*615The conflict between the two statutes is clear. The zoning laws establish an administrative process which must be followed prior to the legislative act of adopting an ordinance. The initiative statutes leave no room to carry out the administrative function. Both the statutes governing zoning of general law cities and governing initiative in such cities find their authority in our Constitution. Thus, there is no basis for the majority’s thesis suggesting that the Constitution requires that initiative law take precedence over the zoning law insofar as there may be conflict. Rather, the familiar rule that the specific governs the general in cases of conflict is applicable, and as held in Hurst, the zoning statutes must be given effect. The reasoning of Hurst is as applicable today as it was when the case was decided in 1929, if not more so in view of new administrative procedures governing land use planning, and I would reaffirm Hurst.

It is ironic that today’s decision, reviewing a “no growth” ordinance, may provide a loophole for developers to avoid the numerous procedures established by the Legislature which in recent years have made real estate development so difficult. Seeking approval of planned unit developments, land developers with the aid of the building trade unions should have little difficulty in securing the requisite signatures for an initiative ordinance. Because of today’s holding that the initiative takes precedence over zoning laws, the legislative scheme of notice, hearings, agency consideration, reports, findings, and modifications can be bypassed, and the city council may immediately adopt the planned unit development or, if the council refuses, the voters may approve.3 However desirable the creation of the loophole and the elimination of so-called administrative red tape it is not for this court, but for the Legislature to determine whether the current housing crisis warrants bypassing the zoning laws.4

*616I would affirm the judgment.

Beginning in 1879, the quoted language has appeared in our Constitution with nonmaterial changes. The only difference in language between the current section and former article XI, section II, is that in lieu of the opening phrase “A county or city” the former provision stated “Any county, city, town, or township.”

The issue of inverse condemnation is not raised in argument but the issue is raised by the adoption of the ordinance. (Cf. Goldblatt v. Hempstead (1972) 369 U.S. 590 [8 L.Ed.2d 130, 82 S.Ct. 987], Penna. Coal Co. v. Mahon (1922) 260 U.S. 393, 415 [67 L.Ed. 322, 43 S.Ct. 158, 28 A.L.R. 1321]; Eldridge v. City of Palo Alto (1976) 57 Cal.App.3d 613, 618 et seq. [129 Cal.Rptr. 575].)

The validity of Hurst was raised for the first time in this court by amici curiae. Associated Home Builders did not respond to the amici brief—the interests of Associated Home Builders’ members extending beyond the borders of Livermore, they may well have preferred repudiation of Hurst to invalidation of the Livermore ordinance.

Although the majority hold that the Livermore ordinance does not conflict with Government Code sections 65853-65857, they do not deal with potential conflicts between the zoning ordinance before us and other zoning statutes, for example, whether the initiative conflicts with a general plan in violation of Government Code section 65860, whether the ordinance conflicts with section 65858 of that code limiting interim ordinances, and whether there is a conflict with the four-fifths approval requirement of that section. In regard to the latter, the ordinance was approved by approximately 55 percent of those voting, 36 percent of the registered voters. Presumably, the additional conflicts may be raised when the case is returned to the trial court.