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Lafayette v. City of Lafayette

California Court of Appeals, First District, Fourth Division

February 21, 2018

SAVE LAFAYETTE et al., Plaintiffs and Appellants,
CITY OF LAFAYETTE et al., Defendants and Respondents.

         Contra Costa County Superior Court No. MSN16-0390, Hon. George V. Spanos, Trial Judge

          Counsel for Appellants: Gary S. Garfinkle, Maria J. Garfinkle

          Counsel for Respondents: Best Best & Krieger, Scott W. Ditfurth, Alexandra A. Baca

          RUVOLO, P. J.



         Appellants Save Lafayette and Michael Griffiths appeal the trial court's denial of their petition for a peremptory writ of mandate requiring respondent City of Lafayette (the City) to submit appellants' referendum to a public vote. The City amended its general plan to allow for a residential development in an area formerly designated as administrative and office space. After the time to challenge the general plan amendment had passed, the City enacted a zoning ordinance to rezone the property to single-family residential. Appellants collected signatures and properly filed a referendum to place the zoning ordinance on the ballot. The City refused to place the referendum before the voters because it believed if the referendum were successful it would be invalid since it would resurrect the former zoning ordinance that was inconsistent with the amended general plan. The trial court agreed and denied appellants' petition.

         We reverse the trial court and conclude that the referendum was not invalid and the issue must be placed on the ballot for a vote by the citizens of Lafayette. We further remand for the trial court to consider appellants' request for attorney fees under Code of Civil Procedure section 1021.5.



         This dispute arises over a 22-acre area of land in Lafayette known as Parcel 27 located on Deer Hill Road. In 2014, a developer proposed a residential development for Parcel 27 known as “Homes at Deer Hill.” The new development included approximately 44 single family homes, with 7.9 acres reserved for public parkland, as well as a bike path and dog park. In June 2015, the City's planning commission recommended city council approval of a general plan amendment that rezoned Parcel 27.

         On August 10, 2015, the city council passed and adopted Resolution No. 2015-50 amending the general plan designation of Parcel 27 from “Administrative Professional Office” (APO) to “Low Density Single Family Residential, ” also known as “Single Family Residential District -20, ” or R-20. The replaced APO designation allowed for up to 35 dwelling units per acre. The new R-20 designation allows two dwelling units per acre. The city council resolution states: “[T]he General Plan Amendment is consistent with the other elements of the General Plan because the reduction in density better protects the character of the residential neighborhoods and more closely mirrors the pattern of development of residential neighborhoods north of Highway 24.” The resolution further finds that the amendment creates a significant public benefit by creating new parkland, a dog park, and a new sports field. It stated the resolution will become effective 30 days after its adoption.

         After the general plan amendment became effective and could no longer be challenged, on September 14, 2015, the council approved Ordinance No. 641 changing the zoning designation of Parcel 27 from APO to R-20.

         On October 14, 2015, appellants filed a referendum challenging the approval of the zoning ordinance. The referendum stated: “We, the undersigned, representing 10% or more of the registered, qualified voters of the City of Lafayette hereby present this petition protesting the adoption by the City Council of the City of Lafayette of Ordinance No. 641.” It requested that the ordinance be repealed or alternatively submitted to a vote. The referendum petition was timely submitted and contained the requisite number of signatures to be placed on the ballot. The city clerk notified appellants that the referendum met the statutory requirements of the Elections Code.

         On December 14, 2015, the city attorney prepared a staff report. The report noted that ordinarily once a referendum petition is certified, the ordinance is suspended and the city council must reconsider the ordinance. Ordinance No. 641 had amended the zoning to be consistent with the City's newly amended general plan. But, the report advised the city council that under Elections Code section 9241, it was not required to repeal Ordinance No. 641 or to submit the referendum to the voters if the referendum were invalid. Citing deBottari v. City Council (1985) 171 Cal.App.3d 1204 (deBottari), the report advised that “a referendum seeking to repeal a zoning amendment which would result in a zoning ordinance that is inconsistent with a general plan is a legally invalid referendum.”

         In response to this staff report, on that same date the city council voted to refuse to repeal the ordinance or to place the issue on the ballot. The city council stated that repeal of the ordinance would result in reversion to APO zoning and create an inconsistency between the zoning ordinance and the City's general plan.[1]

         On March 17, 2016, appellants filed a first amended petition for peremptory writ of mandate. The trial court denied the petition. The court stated that the City had a duty to place the certified referendum on the ballot but its refusal, even if improper, may be validated by a judicial declaration that the referendum was invalid. The City must therefore make a “compelling showing” that the referendum is “clearly invalid.”

         The City argued the referendum would return Parcel 27 to APO zoning and create an inconsistency with the general plan. Under the City's municipal code, APO zoning is designed for administrative and professional offices, not single family dwellings. (See Lafayette Mun. Code, § 6-1002.) Appellants argued the existing zoning was not necessarily inconsistent because APO zoning would allow for single family dwellings. Under Lafayette Municipal Code section 6-1004, subdivision (g), “any permitted uses on a site smaller than two hectares (4.94) acres in size” was permitted in an APO-zoned area with the issuance of a land use permit. The court concluded that sections 6-1004, subdivision (g) and 6-1005 evidence a “clear intent by the City to regulate sites smaller than two hectares in size by land use permit.” The court concluded that appellants' interpretation that APO zoning allows for single family dwellings “strain[s] established principles of statutory construction.” The court noted it must, “wherever possible, construe an initiative measure to ensure its validity.” But here, “the City met its burden and made a compelling showing that the referendum, if passed, will create an inconsistency between the... general plan land use designation, including its' objectives and policies, and APO zoning.”



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