Davis v. City of Berkeley

MOSK, J.

I dissent. In my view, the conclusion of the majority that the voters, in adopting article XXXIV of the California Constitution (hereafter article XXXIV), intended to surrender to local governmental bodies all decisions regarding public housing except as to the total number of units that may be built throughout the area, is inconsistent with the language, the history, and the purpose of that provision. The result of the majority’s holding is to permit local governing entities to build public housing of any type and size, at any place, and at any time in the future, provided only that the total units do not exceed the number authorized by the electorate perhaps decades before construction proceeds.

Turning, first, to the purpose underlying article XXXIV, the majority recognize that the primary concerns leading the voters to adopt that provision were twofold: the drain on a community’s finances represented by the construction of tax-exempt public housing, and protection of the aesthetic *245environment of the community. (California Housing Finance Agency v. Patitucci (1978) 22 Cal.3d 171, 178 [148 Cal.Rptr. 875, 583 P.2d 729].) Neither of these purposes is satisfied under the majority’s holding.

Under this decision, a community is permitted to stockpile for an unlimited time any number of housing units authorized in past elections, and the governing body has the discretion to build none, some, or all of these units whenever it chooses to do so. Indeed, the City of Berkeley (hereafter Berkeley) conceded at oral argument that construction of its block of authorized units could theoretically take place at any time over the next 50 or more years. Without any knowledge of the period within which the local governmental body intends to construct the units or the number of units to be built, the voters at the election authorizing construction do not have any meaningful sense of the present value of the public costs incurred by their authorization. Since construction of the units can occur decades after the election at which they are authorized and the voters need not be afforded the opportunity to approve or disapprove the specific building project, they are effectively deprived of the ability to assess the fiscal impact of the project on the locality at the time it is built. Thus, stockpiled units authorized at a time when the locality is in sound financial condition may be built by the governing body many years later, at a time when, if the matter were put to a vote, authorization would be denied because of the drain on the locality’s financial resources.

The second purpose underlying article XXXIV, protection of the aesthetic values of the community, is also unattainable under the majority’s holding. It is apparent that if the public has no knowledge of possible locations for a public housing project, or any details as to the type and number of units to be built, it does not have the ability to vindicate its concerns for such values.

The majority declare that article XXXIV was designed to afford a community the opportunity to weigh the “obvious and pressing need for affordable housing” against the considerations outlined above. (Maj. opn., ante, at p. 236.) It does not explain, however, how the housing needs recognized by the voters perhaps many years ago represent the needs of the community when the project is actually constructed, a period that can extend into the indefinite future.

Turning to the language of article XXXIV, the majority hold that the word “project,” as used in that provision, is ambiguous because it can be interpreted narrowly or broadly, and the voters must have intended that the election authorizing the construction of a public housing development be held at a “relatively early stage,” before substantial planning has been *246completed. (Maj. opn., ante, at p. 235.) But no “substantial planning” or for that matter any “planning” need occur because the local governmental body might decide never to build the number of units authorized in the election. If we give the words of the provision their ordinary meaning, the majority’s interpretation of the word “project” as meaning an open-ended authorization for a specified number of housing units that may or may not be built at some time in the indefinite future strains all rational bounds. I agree with plaintiffs’ observation that “[j]ust as deposits in a savings account do not constitute a plan to spend the money, so a unit bank is not a plan to develop housing.”

Whether the broadest or narrowest definition of the word “project” is chosen, every definition of that term involves some isolable undertaking that has been more or less concretely realized. Even if we presume that the voters intended the word to be used in its least concrete sense as a “proposed plan” rather than as a “systematically built group of houses or apartment buildings . . . planned with government support to serve low-income families” (Webster’s New Internat. Diet. (3d ed. 1961) p. 1813), it is impossible to conclude that Berkeley submitted such a “project” to its voters for authorization. The 1977 and 1981 enabling measures sought general authority for the construction of up to 500 units of low-income housing, which Berkeley has since utilized to build several unrelated projects over a period of more than a decade. Nothing approximating a “proposed plan” at a “relatively early stage” for actual public housing was approved by the electorate; instead, Berkeley requested prospective authority to generate and execute a variety of such proposals within relatively expansive bounds. An endorsement of Berkeley’s ongoing authority to formulate and implement public housing policy, however, is not synonymous with an endorsement of any “proposed plan” subsequently generated pursuant to that policymaking prerogative. The constitutional text plainly contemplates the latter.

This conclusion is corroborated by the use of the phrase “any development” to define “low rent housing project” for purposes of article XXXIV. A standard reference defines “development,” inter alia, as “the act, process, or result of developing,” “the state of being developed,” or “a gradual unfolding by which something ... is developed.” (Webster’s New Internat. Diet., supra, p. 618.) Relying on these definitions, defendants mistakenly contend that the 500 units approved in 1977 and 1981 were simply the beginning of the “process ... of developing” the challenged project and thus that it was properly authorized under article XXXIV. The argument is flawed for three reasons.

First, the context of the phrase “any development” in article XXXIV suggests something far more concrete than the nascent stages of a *247generalized planning process: the provision defines a low-rent housing project as “any development composed of urban or rural dwellings . . . .” (Italics added.) The italicized language modifying “any development” demonstrates that the phrase refers not to a planning process but rather to its result; if we attempt to construe the language otherwise, we must read the word “composed” out of the provision in violation of our obligation to “give significance to every word in the constitutional text.” (ITT World Communications, Inc. v. City and County of San Francisco (1985) 37 Cal.3d 859, 867 [210 Cal.Rptr. 226, 693 P.2d 811].)

Second, even if we posit that “development” in article XXXIV refers to the earliest stages of the “process ... of developing,” such a process nevertheless assumes some object. When Berkeley obtained general authorization to construct up to 500 low-income units, the object of its development process obviously could not have been the specific housing project here at issue, which was not conceived until 3 years after passage of the last enabling measure.

Finally, defendants overlook the definition of “development” that is evidently most applicable to its use in article XXXIV: “a developed tract of land; [especially] a subdivision having necessary utilities . . . .” (Webster’s New Internat. Diet., supra, p. 618.) Implicit in this definition is a degree of project specificity that the language of Berkeley’s enabling measures did not begin to approximate.

In my view, the ordinary meaning of the language used in article XXXIV contemplates voter approval of specific housing projects rather than the prospective authority of a locality to broadly formulate public housing policy.

The second ground on which the majority’s holding rests is historical. Contrary to their conclusion, however, the ballot argument in favor of the initiative supports plaintiffs’ position. It is difficult to read the strong statements made therein aimed at vindicating the electorate’s right to decide whether “public housing is needed or wanted in each particular locality” and to conclude, as do the majority, that all the voters intended by enshrining that provision in the Constitution was to reserve to themselves the right to decide the maximum number of public housing units the community might want to build at some time in the future, and that all other decisions regarding such housing, even whether it will ever be built, would be left to their local governing bodies. (Ballot Pamp., Proposed Amends, to Cal. Const, with arguments to voters, Gen. Elec. (Nov. 7, 1950) pp. 12-13.)

The bulk of the ballot argument is devoted to the financial effect of tax-exempt public housing on local communities. The concern expressed is the *248danger of incurring significant “hidden debt” in the form of public subsidies, such as free local services and exemptions from ad valorem property taxation, without the prior consent of local voters. For their evaluation of a project’s financial impact, voters do indeed require information regarding the scale, possible location and type of development, and the period within which a public body intends to construct it.

Finally, the ballot argument’s reference to voter approval of revenue bonds is instructive. The argument states that “the financing of public housing projects is an adaptation of the principle of the issuance of revenue bonds. Under California law, revenue bonds, which bind a community to many years of debt, cannot be issued without local approval given by ballot. Public housing and its long years of hidden debt should also be submitted to the voters to give them the right to decide whether the need for public housing is worth the cost.” (Ballot Pamp., op. cit. supra.) It was settled at the time of article XXXIV’s enactment that “public bodies may submit bond propositions in broad and general terms.” (Sacramento M. U. Dist. v. All Parties, etc. (1936) 6 Cal.2d 197, 202 [57 P.2d 506].) Bond elections “are required ... to obtain the assent of the voters to a public debt, to the amount, and for the object, proposed. The amount must, of course, be stated on the ballot; the general purpose must be stated with sufficient certainty to inform the voters and not mislead them, as to the object intended; but the details of the proposed work or improvement need not be given at length in the ballot.” (Clark v. Los Angeles (1911) 160 Cal. 317, 320 [116P. 966], italics added.) Insofar as article XXXIV is an “adaptation” of the voter authorization required for issuance of revenue bonds, it follows that ballot measures under the constitutional provision require a “sufficient certainty” in specification of “the proposed work.”

In addition, the majority support their conclusion by two arguments based on past practice. The first relates to the practice allegedly followed not with regard to the interpretation of article XXXIV, but former section 8(b) of California’s Housing Authorities Law. The majority claim that the language of article XXXIV was based on former section 8(b), that “unit banking” was a recognized practice under the section, and that, therefore, the drafters of the constitutional provision must have intended to authorize “unit banking” as well. (Maj. opn., ante, at pp. 238-239.) I challenge the correctness of both the premise and the conclusion. There is no evidence that the voters who adopted the constitutional provision were aware of the alleged practice of “unit banking,” if it in fact existed. Certainly no case approved such a practice either before or after the election at which the initiative was adopted. The two cases cited by the majority as indicating by their recitation of the facts that the practice was established under former section 8(b) were both decided after 1950, when article XXXIV was *249adopted. (Blodget v. Housing Authority (1952) 111 Cal.App.2d 45 [243 P.2d 897]; Housing Authority v. City of L. A. (1952) 38 Cal.2d 853 [243 P.2d 515].)

Moreover, even those cases do not establish that “unit banking” was a practice. The city councils involved in those decisions did approve low-rent housing project proposals described in general terms, but they might have had more specific proposals regarding the projects before them at the time the approvals were given. In fact, in Housing Authority v. City of L. A., supra, 38 Cal.2d 853, upon which the majority rely, an application for a preliminary loan for development of the housing project was filed with the federal government two days after the project was approved by the city council, indicating that the council considered an articulated proposal rather than a broad plan for long-range development of public housing.

Even if such specific information was not before the councils in those two cases, the circumstance that the resolutions approving the projects employed general language does not indicate that a practice of “unit banking” existed. A careful examination of the resolution authorizing the construction of 10,000 low-income housing units in the Los Angeles case reveals that the contrary is true. In that resolution, the city bound itself to construct the 10,000 units and to try to obtain from the federal government a loan for that purpose within 3 years. Thus, unlike the measure we consider in the present case, the city was required to build the units, and there was a time limit set on its actions. This can hardly be viewed as “unit banking.”1

The majority’s final basis for their conclusion is that for 40 years, local public agencies have implemented article XXXIV by authorizing public housing projects based on the type of nonspecific ballot measure involved here. A constitutional provision should be construed in accordance with settled governmental practices unless the language and history of the provision clearly require a contrary interpretation, and the majority opinion determines that plaintiffs’ arguments are not of sufficient force to justify repudiation of the practice. (Maj. opn., ante, at pp. 239-243.)

The underlying basis for the rule, that contemporaneous construction of long standing should in most cases be followed by the courts, is that the *250public has relied on the interpretation, and significant harm would result if the enactment were construed in a contrary manner. (Redevelopment Agency v. County of San Bernardino (1978) 21 Cal.3d 255, 266 [145 Cal.Rptr. 886, 578 P.2d 133]; 2A Sutherland, Statutory Construction (4th ed. 1984) § 49.07, p. 394.) But such harm would not occur under the approach I urge. In my view, a ruling that article XXXIV requires more specific language than that used in the present case should be prospective only, so that public housing projects approved in prior elections could proceed. This result would eliminate any harm that could result from the public reliance on the incorrect construction placed on article XXXIV in prior years, while simultaneously avoiding the continued violation of the requirements of the Constitution by ballot measures phrased in terms so broad as to be virtually meaningless to the concerns of the public in authorizing housing projects.

The Los Angeles City Council’s resolution stated that the city would enter into a “Cooperation Agreement” with the city’s housing authority under which the latter would agree to “develop” and” “administer” a low-cost housing project or projects, consisting of approximately 10,000 family dwelling units, and that the authority would “endeavor during the next three years to secure a contract or contracts with the Public Housing Administration for a Federal loan and for Federal annual contributions to assist in the development and administration of said Projects.”