BROOKSIDE INVESTMENTS, LTD., Plaintiff and Appellant, v. CITY OF EL MONTE, Defendant and Respondent.
No. B267081
Second Dist., Div. Seven
Nov. 15, 2016
540
Bien & Summers, Elliot L. Bien; Law Offices of Edward Z. Kotkin and Edward Z. Kotkin for Plaintiff and Appellant.
Olivarez Madruga, City Attorney, Rick R. Olivarez, Joaquin Vazquez; Demetriou, Del Guercio, Springer & Francis, Jeffrey Z.B. Springer and Tammy M.J. Hong for Defendant and Respondent.
OPINION
PERLUSS, P. J.—In 1990 the City of El Monte enacted by initiative an ordinance that prohibited the El Monte City Council (City Council) from
Brookside Investments, Ltd. (Brookside), which owns and operates Brookside Mobile Country Club, a large mobilehome park, sued the City of El Monte, alleging the City Council‘s actions in proposing and advocating repeal of the 1990 ordinance violated an express prohibition of such activity in that ordinance. The superior court granted El Monte‘s motion for summary judgment. On appeal from the judgment Brookside repeats its argument concerning the scope of the prohibitory language in the 1990 ordinance and also argues the City Council‘s actions violated the California Constitution‘s implicit withholding of authority for a local government to propose initiative measures that amend or repeal earlier voter-approved ordinances. We reject both contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1. El Monte‘s Mobilehome Park Rent Ordinances
Beginning in January 1988 El Monte, a general law city, attempted to curb excessive rent increases by mobilehome park owners by mandating arbitration of rent disputes in parks of 60 or more spaces through its Mobilehome Park Rent Review Commission (ordinance No. 2216). The commission‘s procedures for resolving disputes between park owners and residents were intended to provide for rent increases “consistent with basic constitutional princip[les] of fairness and equity for property owners and the need to maintain affordable housing opportunities in mobilehome parks in the City of El Monte in [the face] of rapidly escalating rents, the continuing scarcity of affordable housing, especially for low- and very-low income senior citizens, and the social and economic disruption which excessive increases in space rentals will cause in this community . . . .”
At a municipal election on April 10, 1990 El Monte voters approved an initiative ordinance that repealed ordinance No. 2216 and established the Mobilehome Tenant Rent Assistance Program (MTRAP). MTRAP mandated a 10 percent rental discount for qualified low-income seniors but limited its “rental assistance subsidy” to no more than 10 percent of the occupied spaces in a mobilehome park. It also guaranteed mobilehome park owners “the sole right to establish the price for which [the owner‘s] mobilehome park or premises therein is sold, leased, rented, transferred, or exchanged” and repealed “[a]ny law of the City of El Monte that would abridge such right.”
On July 31, 2012 the City Council approved resolution No. 9321 calling a special municipal election to be held on November 6, 2012 (the date of the regularly scheduled general election) for El Monte voters to consider proposed ordinance No. 2804, the El Monte Fairness for Mobilehome Owners Ordinance, which would repeal MTRAP “in order to allow the City Council to investigate the reasonableness of rent charged to mobilehome owners and if appropriate, consider the regulation of proposed mobilehome park rent increases in the future.”1 The City Council also authorized its members to submit written ballot arguments in favor of or against the proposal (denominated Measure F on the ballot). The voters approved Measure F, and ordinance No. 2804 became effective December 18, 2012.
Prior to July 31, 2012 the City Council had authorized an inquiry into the effectiveness of MTRAP, including distribution of a questionnaire to mobilehome park owners seeking information regarding the extent to which the tenant rent assistance program was actually being used. Between July 31, 2012 and the election on November 6, 2012, the City approved expenditures for the conduct of the election in the form of legal notices in newspapers, translation services and the election itself.
Following adoption of ordinance No. 2804 the City Council retained a land economics and real estate consulting firm to determine baseline rental conditions at mobilehome parks in El Monte. To address “a current threat to the public health, safety and welfare of the City,” the City Council also adopted ordinance No. 2811, an interim urgency ordinance that imposed a temporary moratorium on pending or new rent increases for mobilehome park spaces with a monthly rent of $1,000 or more and limited rent increases to no more than 7 percent on mobilehome park spaces with a monthly rental between $600 and $1,000. The initial 45-day moratorium was extended twice and remained in effect through September 30, 2013.
2. Brookside‘s Lawsuit and the Orders Granting Summary Adjudication and Summary Judgment
Brookside filed its original complaint for declaratory and injunctive relief on March 22, 2013 (after the repeal of the 1990 ordinance but before enactment of ord. No. 2829) and, pursuant to a stipulation of the parties, a first amended complaint and petition for writ of mandate on February 13, 2014. In the first cause of action in the operative pleading Brookside alleged ordinance No. 2804, which repealed the 1990 ordinance and MTRAP, was adopted in violation of
In their stipulation allowing the filing of Brookside‘s amended complaint and petition for writ of mandate, the parties agreed El Monte‘s previously filed motion for summary judgment or, in the alternative, summary adjudication would be deemed a motion for summary adjudication limited to the issue of the validity of ordinance No. 2804. After full briefing with the submission of extensive declarations and documentary evidence, the trial court on December 14, 2014 granted El Monte‘s motion. The court ruled
Brookside promptly filed a notice of appeal, asserting the order granting summary adjudication effectively disposed of the entire action. We dismissed the appeal as having been taken from a nonappealable interlocutory order. El Monte then filed a motion for summary judgment or, in the alternative, summary adjudication directed to Brookside‘s remaining claims regarding ordinance No. 2829, the 2013 rent stabilization ordinance. In its moving papers El Monte argued Brookside could not demonstrate the El Monte rent control program constituted an arbitrary taking or that ordinance No. 2829 violated either substantive or procedural due process. In its opposition Brookside conceded a finding that repeal of MTRAP was unlawful was an essential element of its challenge to ordinance No. 2829 and urged the trial court to reconsider sua sponte its December 13, 2014 ruling upholding the City Council‘s actions in connection with ordinance No. 2804.
The court declined to reconsider its previous rulings and granted El Monte‘s motion for summary judgment on July 20, 2015. Judgment was entered on August 6, 2015 denying the petition for writ of mandate and ordering that Brookside take nothing by way of its first amended complaint.
Brookside contends the trial court erred in granting summary judgment in favor of El Monte, not because a triable issue exists as to any material fact,3 but because the judgment is based on an improper construction of
DISCUSSION
1. The Local Initiative Power
California voters adopted the initiative process by amendment of the
In addition to authorizing statewide initiatives to enact statutes and amend the state Constitution,5 the 1911 amendments to
This constitutional provision for local initiative ordinances was repealed in 1966 and replaced by
The local electorate‘s right to initiative “is generally co-extensive with the legislative power of the local governing body.” (DeVita v. County of Napa (1995) 9 Cal.4th 763, 775.) However, although a legislative body through its acts may not restrict the authority of future legislatures (Rossi v. Brown, supra, 9 Cal.4th at p. 715; see Bridges v. City of Wildomar (2015) 238 Cal.App.4th 859, 867 [” ’ “a municipal corporation cannot abridge its own legislative powers by the passage of irrevocable ordinances” ’ “]; County Mobilehome Positive Action Com., Inc. v. County of San Diego (1998) 62 Cal.App.4th 727, 734), “through the exercise of the initiative power the people may bind future legislative bodies other than the people themselves” (Rossi, at pp. 715–716).
As plainly stated in the 1911 constitutional amendments, as well as in all subsequent iterations of this provision, in reserving the right of initiative to electors of counties and cities, the Constitution expressly authorized the Legislature to establish procedures to implement the exercise of that right. (See Associated Home Builders, supra, 18 Cal.3d at p. 591.) The Legislature acted quickly to provide those procedures pursuant to this constitutional directive: At an extra legislative session held two months after adoption of the constitutional amendments providing for the initiative and referendum process, the Legislature approved, effective January 2, 1912, “[a]n act to provide for direct legislation by cities and towns, including initiative and referendum” (Stats. 1912, 1st Ex. Sess. 1911, ch. 33, p. 131, italics omitted). This legislation provided, in part, “If a majority of the qualified electors voting on said proposed ordinance shall vote in favor thereof, such ordinance
The statutory limitation on the power of the local governing body to amend or repeal a voter-sponsored initiative ordinance has been included in substantially the same form in every amendment and restatement of the legislation governing the procedures for local initiative since 1912; today it is set forth in
Although the Legislature prohibited the local governing body from directly amending or repealing a voter-proposed, voter-approved ordinance unless such action was authorized by the ordinance itself, the January 2, 1912 legislation expressly permitted the local legislative body to submit a proposal for amendment or repeal of a local initiative ordinance for voter approval: “The legislative body of the city or town may submit to the people, without a petition therefor, a proposition for the repeal of any adopted ordinance, or for amendments thereto, or for the enactment of any new ordinance, to be voted upon at any succeeding regular or special municipal city or town election, and if such proposition so submitted receive a majority of the votes cast thereon at such election, such ordinance shall be repealed, amended or enacted accordingly.” (Stats. 1912, 1st Ex. Sess., 1911, ch. 33, § 1, p. 133.)9 This provision, for which there was no corresponding language in
2. The Validity of Section 9222: People v. Kelly and the Unfounded Suggestion That Amendment or Repeal of a Local Initiative Ordinance Cannot Be Proposed by a City Council Unless Authorized by the Initiative Itself
Brookside does not dispute that, by expressly authorizing a city‘s legislative body to propose to the voters the amendment or repeal of “any ordinance,”
the board of supervisors to “submit to the people, without a petition therefor, a proposition for the repeal of any adopted ordinance or for amendments thereto. . . .” (Stats. 1911, ch. 342, § 1, pp. 577, 579.)
In Kelly, an appeal from a criminal conviction for possessing and cultivating marijuana, the Supreme Court considered the validity of legislation supplementing certain provisions of the Compassionate Use Act of 1996 (
As background for its holding the Supreme Court discussed the development of California‘s initiative process and, specifically,
As the Kelly court recounted, because there was no express provision allowing it to do so, the Legislature through the mid-1940‘s “apparently believed that it lacked clear authority even to submit to the voters any proposed measure to amend [an] initiative statute.” (Kelly, supra, 47 Cal.4th at p. 1037; see id. at p. 1038 [“the Legislature evidently believed that the strict language of the constitutional provision (former art. IV, § 1) might be construed to forbid the Legislature even from proposing such an amendment to the voters“].) To resolve any doubt on that issue, the Legislature adopted and then proposed to the voters Senate Constitutional Amendment No. 22 (Stats. 1945, ch. 147, pp. 3163–3164), approved as Proposition 12 at the 1946
Brookside attempts to use the Supreme Court‘s historical review in Kelly to challenge the validity of
—Because the original version of California Constitution,
—The original version of California Constitution,
—Therefore, a constitutional amendment, not simply legislative action such as
The fallacy in Brookside‘s argument is that the voters in 1911, although apparently withholding from the Legislature the authority to propose amendment or repeal of statewide initiative measures, expressly empowered the Legislature to establish procedures for the exercise by local voters of their right to enact ordinances by initiative. As discussed, when the 1911 constitutional amendments were adopted granting that authority to the Legislature, there was already in place former Political Code section 4058, which permitted a county board of supervisors to submit to the voters a proposition
In sum, far from withholding the power of local legislative bodies to independently propose ballot measures affecting voter-approved initiative ordinances, the 1911 constitutional amendments gave the Legislature the authority to establish procedures allowing such action. Moreover, to paraphrase the Supreme Court‘s language in Kelly, supra, 47 Cal.4th at page 1039, because any such city council-generated initiative proposal requires the electorate‘s approval,
3. Section 10 of MTRAP Did Not Prohibit the City Council from Proposing the Voters Adopt Ordinance No. 2804
a. The possible conflict between section 9222 and section 10 of MTRAP
” ‘If otherwise valid local legislation conflicts with state law, it is preempted by such law and is void.’ ” (Sherwin-Williams Co. v. City of Los
The issue in Associated Home Builders, supra, 18 Cal.3d 582, was the validity of an initiative ordinance enacted by the voters of the City of Livermore that prohibited issuance of further residential building permits until certain local facilities met specified standards. (Id. at p. 588.) The trial court had enjoined the ordinance, in part, based on the Supreme Court‘s decision in Hurst v. City of Burlingame (1929) 207 Cal. 134, which had held state law requiring notice and a hearing prior to enactment of municipal zoning and land use ordinances applied to initiatives and had invalidated the initiative ordinance before it for noncompliance with that law. The court in Associated Home Builders overruled Hurst, stating that the decision had “erroneously contriv[ed] a conflict between state zoning statutes and the initiative law.” (Associated Home Builders, at p. 594.) No such conflict existed, the court held, because the Legislature plainly drafted the state zoning law with a view to ordinances adopted by vote of the city council, and the provisions at issue merely set forth additional procedural requirements to those already specified in the
Then, after noting that imposing the state law‘s notice and hearing requirements would essentially preclude a general law city from enacting a land use ordinance by initiative, the Associated Home Builders court explained, “although the procedures for exercise of the right of initiative are spelled out in the initiative law, the right itself is guaranteed by the Constitution.” (Associated Home Builders, supra, 18 Cal.3d at pp. 594–595.) Accordingly, although the Legislature can specify the manner in which
Contrary to Brookside‘s argument, neither the holding nor the analysis in Associated Home Builders requires that a conflict between
b. By its terms section 10 of MTRAP did not prohibit a city council-sponsored initiative measure concerning rent control
” ‘[I]n interpreting a voter initiative . . . , we apply the same principles that govern statutory construction. [Citation.] Thus, “we turn first to the language of the [initiative], giving the words their ordinary meaning.” [Citation.] The [initiative‘s] language must also be construed in the context of the statute as a whole and the [initiative‘s] overall . . . scheme.’ [Citation.] ‘Absent ambiguity, we presume that the voters intend the meaning apparent on the face of an initiative measure [citation] and the court may not add to the statute or rewrite it to conform to an assumed intent that is not apparent in its language.’ [Citation.] Where there is ambiguity in the language of the measure, ‘[b]allot summaries and arguments may be considered when determining the voters’ intent and understanding of a ballot measure.’ ” (Professional Engineers in California Government v. Kempton, supra, 40 Cal.4th at p. 1037.)
As part of its findings and declaration of purpose, MTRAP stated, “The citizens of El Monte are already bearing the unnecessary financial burden of
The city attorney‘s ballot summary stated the initiative ordinance “would invalidate all existing rent level or rent review regulations affecting mobilehome parks and would prohibit the passage of any other ordinance relating to mobilehome park rents.” The ballot itself simply asked, “Shall an ordinance be adopted repealing the present Mobilehome Rent Review Program and establishing instead a Mobilehome Rent Assistance Program” with a place for the voter to mark yes or no. There were no arguments in favor of or against the proposed initiative ordinance in the ballot materials.
Brookside contends the usual and ordinary meaning of the words used in section 10 of MTRAP “defined the unwanted city council action as broadly as possible” and prohibited the City Council from taking “any hostile action” against the initiative. However, the actual language approved by the voters was far narrower: Section 10 barred only “the passage of any ordinance” concerning mobilehome park rents and the expenditure of city funds in connection with “any such ordinance.” That language, particularly when viewed in the context of an initiative that repealed an existing rent regulation scheme enacted by vote of the City Council, reasonably connotes adoption of a new law concerning mobilehome rents by the City Council itself. (See County of Del Norte v. City of Crescent City (1999) 71 Cal.App.4th 965, 979 [“ “ “[a]n ordinance in its primary and usual sense means a local law. It prescribes a rule of conduct prospective in operation, applicable generally to persons and things subject to the jurisdiction of the city” ’ ”]; see also
To be sure, the findings and declaration of purpose of MTRAP expressed a clear intent to prevent the reintroduction of mobilehome rent control through “any other subsequently enacted law of the City of El Monte.” Construing that language as broadly as Brookside suggests, however, would preclude even a voter-sponsored initiative that sought to replace MTRAP with a new rent control law. Yet Brookside acknowledges in its first amended complaint that the voters of El Monte, acting through the initiative process as defined in the
4. The City Council Did Not Spend Public Funds in Violation of Section 10 of MTRAP
Section 10 of MTRAP prohibited not only City Council passage of any ordinance relating to mobilehome park rents but also “expenditure of any tax revenues in connection with any such ordinance.” As Brookside demonstrated in its opposition to El Monte‘s motion for summary adjudication, the City
The trial court found, and Brookside does not dispute, those expenditures were all of the type El Monte would incur in connection with any election—items such as “vote by mail processing,” “election supplies,” “printing” and “mailing and postage.”15 Because the City Council‘s actions in proposing and placing Measure F on the 2012 ballot did not violate section 10 of MTRAP, its use of tax revenues in connection with that election were not prohibited expenditures under section 10.
In sum, the actions of the City Council in proposing and placing Measure F on the November 2012 election ballot were lawful. The trial court properly granted summary judgment in favor of the City of El Monte.
DISPOSITION
The judgment is affirmed. The City of El Monte is to recover its costs on appeal.
Zelon, J., and Segal, J., concurred.
Appellant‘s petition for review by the Supreme Court was denied March 1, 2017, S239140.