*1 Dec. No. 23085. In Bank. [S.F. 1974.] ASSOCIATION OF SANTA CLARA-SANTA CRUZ
BUILDERS Petitioner, COUNTIES, COUNTY, COURT OF SANTA CLARA
THE SUPERIOR Respondent; al., JOSE et Real Parties in
CITY OF SAN Interest.
Counsel Neider, C. Burnstein and Robert & Robert S. Matthews Sturges,
Mager, Petitioner. J. Marzulla for Roger for
No Respondent. appearance Latta, Collins, Stewart, & Stone, Sanford Peter G. Hays, City Attorney, Counsel, F. and Charles V. William M. Walter County Hays, Siegel, Perrotta, Counsel, Parties in Interest. for Real County Deputy O’Brien, General, H. Assistant Robert J. Evelle Attorney Younger, Shute, Jr., General, E. Clement Nicholas C. Yost and Deputy Attorney in Interest. General, of Real Parties as Amici Curiae on behalf Attorneys Opinion schools,
TOBRINER, J. in local from serious overcrowding decade, the result past development during explosive with with the of the school district and concerned keep pace inability residents, influx of new the voters of the charter anticipated San Jose enacted an initiative ordinance to restrict the of land for residential use for a further two-year period pending study impact of residential The ordinance of land development. prohibits rezoning for residential within areas of the unless the impacted school districts “in which the land is situated” that the certify subject has alternative to party seeking agreed rezoning satisfactory lеnders, school construction. archi- Representing developers, tects, and other interested residential construction in Santa persons Counties, Clara and Santa Cruz association an action in plaintiff brought court to enforcement of the ordinance. The superior enjoin superior defendants, court entered mandate judgment plaintiff sought *4 from this court. directly
We issued an alternative writ to consider contention plaintiffs that the residents of a charter could not enact a constitutionally initiative, an issue of statewide then importance before this court in San Contractors Assn. v. pending Diego Bldg. City Council, ante, 529 P.2d For the reasons page 570]. set out in our case, in the San we find no constitutional opinion Diego to the enactment of measures initiative. We impediment therefore now turn to the other contentions presented by plaintiff.
Plaintiff association asserts that the ordinance (1) unconstitutionally limits the of the council to rezone (2) property; unlawfully district; to the school estаblishes unreason- (3) delegates zoning authority able classifications in clause; violation of the and (4) equal protection interferes with the constitutional to travel. An examination of the right ordinance, however, will demonstrate the lack specific provisions of merit in these contentions.
We the substantive of the ordina begin by summarizing provisions nce.1 Section 1 that for two from its effective date “the provides years 1 as Omitting preamble, reads follows: effective, “1. For a of two from the date this years City ordinance becomes zone, use, Council of San Jose shall not if or re-zone land for residential pre-zone, any such land is located in a school district where the total area of school building enrollment, construction of estimated the estimated enrollment of per pupil counting zone, re-zone land for shall not or Council San Jose any pre-zone, district in an use” if such land located overcrowded itself, under following will be less than computed proposed schedule: ordinance, be one which is valid of this the estimate of enrollment must “For purposes Code, amended. use under of the California Education as Section 19420 “This section shall to ordinances which are urgency emergency apply adopted *5 ordinances. Jose, in with all the the of San two-year City cooperation “2. aforesaid During period, the and with City, entities in for services within any community way responsible citizen a of all study maximum connected with further residential shall undertake thоrough participation, problems to, in the but not limited City, including, development the following: “a) all take with How further residential can be allowed to place only developments with such insurance that all facilities will be concurrently necessary community provided development. if it “b) Whether should allowed violates any further residential development standards, water and air or pollution, environmental those to particularly pertaining the overtaxes water ground supply. can and how “c) What are the and benefits further residential development, costs of a net to ensure that does take shall constitute benefit the that City any place development the City. “d) can be to include an How further residential required equitable of all levels. for income proportion housing Jose, all “e) the level is for the of San considering What optimum population City environmental, economic, and other human factors. the less “f) economy What taken to ease the shift of Sаn Jose to one actions can be on residential growth. dependent if there with 1 of shall is filed “3. The of Section this ordinance not apply provisions Council, in which of bodies of all school districts the or on behalf the by governing City situated, use has land is written that the residential seeking the entered into certification subject party to to a alternative satisfactory temporary binding agreements provide school construction. permanent If, the a ordinance hearing zoning “4. to the of Council on City proposed prior closing use, of kind any or residential to a residential or re-zoning granting any permit property use, Council, or of the governing body there is filed with the on behalf City
as defined in the ordinance. Section the to utilize the requires freeze undertake a of the connect two-year thorough study problems ed with further residential Section offers an developments. exception freeze, the if residential the school district permitting certifies “that the use has entered into party seeking binding a alternative to agreements satisfactory temporary school construction.” Section the substantive of the duration, not limited two ordinance states that if the school years district files a written protest against adoption any proposed zoning ordinance on the that its would tend to cause ground adoption impaction schools, district the council not the ordinance unless it first adopt an affirmative vote of five of the seven members of rejects рrotest by the council.3 section 5 of the ordinance Finally, prohibits repeal except residents, vote of the and section 6 is a standard clause. severability
Plaintiff first attacks the initiative ordi constitutionality nance because limits of the council to rezone property could, interim freeze. Since council during ordinance, bar future council from (cf. considering applications v. Board Trustees 144 Cal. P. (1904) 951]), Thompson cannot initiative so limit the council’s plaintiffs argue people by courts, however, have of residents of upheld right power.4 located, of the school district in which the any subject against written protest on adoption or that said governing permit, ground proposed has said found that ordinance or would tend to cause body permit any impaction district, individual or schools in said then in that shall event Council not said ordinance unless said Council first overrules such affirmative adopt protest by of five vote or of its more voters. “This section shall to ordinanсes which are apply adopted urgency emergency *6 ordinances. “5. No of this ordinance be or amended the voters of the part repealed except by of San Jose at regular election. municipal invalid, If “6. of this ordinance is declared the are to any portion remaining portions be considered severable and valid.” 10, 27, 1973, 2The initiative was enacted 1973. effective April April challenged the the before 3Plaintiff of section 4 of the constitutionality court, did this but not raise that issue in its before court. mandamus superior petition 4Plaintiff also that the initiative the stated argues violates v. Hite Simpson in principle, 125, (1950) 225], 36 Cal.2d 134 P.2d that “The or is initiative referendum not [222 where ‘the inevitable effect would be to or the applicable greatly impair destroy wholly other efficacy essential.’ some- the of which is governmental power, practical application ” indicates, (Italics added.) theAs italicized word this serves to principle which, an invalidate the initiativе in one or limiting impairs destroys governmental power, to exercise a different and more essential For ability government power. example, which, itself, an the in v. Hite the court struck down initiative Simpson by limiting power courthouse, of board of the of a to select location threatened to the impair supervisors
231 initiatives, from council cities, to bar charter in city zoning enacting v. the initiative. established (Bayless or zoning altering repealing Fletcher v. Porter 647]; 26 463 Limber (1972) Cal.Rptr. Cal.App.3d [102 in We sеe no difference 313 452].) 203 (1962) Cal.Rptr. [21 Cal.App.2d which bars a council from between an initiative city repealing principle restrictions, and one which freezes enacted existing newly zoning either, effective, restrictions; must limit the of a hostile to be power ordinance. to evade or the initiative council repeal contention, does not create a the initiative to
Contrary
plaintiffs
to consider
has
under which
authority
vacuum”
body
“power
of their
an exercise
it
peoрle
represents
applications;
587,
212 Cal.
(1931)
to
reserved
Dominguez
(Ley
legislate
250, 258
v. Hamm (1972)
P. 713];
[101
Cal.App.3d
Gayle
[299
the initiative or
to
and the
retain
628]),
right
repeal
people
Cal.Rptr.
42 Cal.2d
Farrell
Blotter v.
(1954)
to its reach (see
to grant exceptions
Comment,
Initiative and
The
481];
P.2d
Scope
[270
1717, 1727).
54 Cal.L.Rev.
(1966)
Referendum California
dele
that the ordinance
contends
Plaintiff
unlawfully
secondly
.5
ordinance,
school district
to the
over
authority
gates
to rezone
however,
district
not confer
the school
does
any power
upon
the council—which remains
it
body
provides
property;
not
which can
approve
change zoning—will
grant
application
district’s
without
school districts
impacted
arrived at an
have
certification that the district
agreement
developer
facilities.
the needed school
courts;
(1971)
its
v. Greiner
to maintain
Campen
county’s power
which,
of a
council
the power
held invalid an initiative
by limiting
525]
Plaintiffs,
taxes,
financial obligations.
threatened
to meet its
ability
the city’s
lеvy
however,
will inevitably
impaired
which
to no essential governmental power
point
freeze.
the enactment of an interim zoning
destroyed by
on
ordinance unlawfully legislates
also contends that
the initiative
5Plaintiff
construction,
which,
(See
the state.
a field
alleges,
preempted
of school
subject
founds this
574].)
P.2d
Plaintiff
(1956)
argument
property challenged nonresiden- рermitted tial uses in residential zones with the written consent of three-fourths owners; of the the court held that since the neighboring council property retained the ultimate to or the use power grant deny permit, ordinance did not to the unlawfully delegate zoning authority neighbor- 277, owners at (93 Cities ing property 295). Cal.App. p. commonly certification that subdivision require are ade- proposed improvements as a condition subdivision; to quate has never been approving that such constitutes а of the suggested practice delegation subdivisions to the If the approve certifying agency. principal difficulty with a inheres not in its effect proposed rezoning upon neighboring or the of its property possible but inadequacy proposed improvements, in its exacerbation of schools, in district we see no reason overcrowding not condition why city may approval zoning application upon certification the school district that facilities can adequate provided.6
Plaintiff contends that the ordinance establishes an thirdly unconstitutional classification between lack by discriminating property residential and similar which has secured ing property already or subdivision zoning.7 Subject any applicable permit require ments, an owner whose is zoned for residential use property construct a residence in with that the owner whose conformity zoning; is not zoned can that he can property residentially only hope persuade the council to him a there is grant change zoning. Certainly nothing irrational in the construction, voters’ determination to permit 6Plaintiffs that the school district owner to suggest dedicate might require land, construct or fees as a condition to improvements, pay certification. The imposition conditions, however, invalid, of such would not render necessarily if the conditions related to the need for particularly increased facilities created Feldman, (See zoning change. Educational Subdivision generаlly Constitutionality Exactions (1972) 651.).In 76 Dick.L.Rev. Jordan v. Purposes Menomonee Village of 442, (1966) Falls 28 Wis.2d 448-450], N.W.2d the Wisconsin Court Supreme an ordinance upheld fee in lieu of dedication of land requiring for school of a purposes, payment dedication, if the need for increased facilities was attributable to the activities; etc., we in turn relied developer’s v. on Jordan in Associated Home Builders Inc. (1971) Walnut Creek Cal.3d 606], 484 P.2d a statute dedication of land for uphold requiring parks. districts, 7Plaintiffs other assume that school before equal protection arguments facilities, into and will exact entering certifying agreements provide temporary from the to the increased need for school facilities developer payments disproportionate created The record before us contains no facts to such development. support charges. *8 of of residential aof problems thorough study completion pending owners whose has been those already only by development, found for such construction.8 suitable interferes
Plaintiff contends that the initiative ordinance finally of one’s with to travel and to live in the a constitutional community right not, however, this unsettled of We need the boundaries explore choosing. of that the difficult task constitutional nor confront right right, balancing the of a to enact restrictions to the against right promote 1, 416 U.S. Belle Terre v. Boraas (1974) of civic life (see Village quality of 797, 803, The freeze S.Ct. 1541]). L.Ed.2d duration, to two here at issue is limited established initiative yeаrs of with the and of that problem the-city plagued applies portion that schools. Even within overcrowded city, portion the school district if the will to assist qgree permits rezoning developer has his the need for additional facilities which development meeting not to exclude the initiative need serve created. Consequently Jose; San divert newcomers from instead some develop may, simply facilities, over with while ment to districts providing adequate districts with the means accommodate of new crowded needs The trial found not in fact residents. court here that the initiative has Jose; reduced of in San new significantly housing plaintiff supply does not We conclude that has failed challenge finding. plaintiff that the demonstrate noticeable or imposes any significant asserted constitutional travel.9 upon infringement right the voters We conclude that the ordinance enacted initiative or federal charter Jose violates no of state San issued is writ mandate heretоfore Constitutions. alternative for writ of mandate is denied. therefore and discharged, petition J., Files, Sullivan, J., J.,* C. and concurred. Wright, character, and hence 8The discrimination enacted ordinance is economic (see Town Los Hills valid if related to a Altos rationally legislative legitimate purpose (1973) 508-509 v. Adobe Creek Inc. Properties, 271] cited). there cases Plan, 9We see no between the San General which inconsistency contemplates Jose eventual residential of land now and the initiative’s zoned for agriculture, freeze on new residential two-year zoning. * of the Judicial Council. Chairman Assigned by *9 234 I dissent, reasons stated in for the
BURKE, J.* my dissenting opinion ante, Council, 205 Assn. v. [118 Contractors page in San Diego Bldg. moratorium In the instant case P.2d two-year 529 570]. Cal.Rptr. restriction a substantial constitutes upon further residential zoning upon in the area. values effect a drastic could have use and upon property land owners that affected would Thus, due require principles process into effect. the moratorium before goes notice be hearing given valid “interim that ordinance 16764 is a in interest Real urge parties cases, which, on an be enacted under may zoning” provision Yet, notice or of without basis necessity hearing. emergency can ever be characterized ordinance that an initiative-created assuming measure, that if authorities as an recognize applicable “emergency” without “freeze”) interim (i.e., accomplished zoning zoning must be of the freeze benefit of notice and reasonably hearing, period law for a the state duration. For brief zoning provides example, extended after which hearings public four-month Code, A which an 65858.) have taken § (Gov. requires place. of due restriction could constitute a denial unreasonably long prehearing of law. process are, which real
The interim
cases
rely
large
upon
parties
whether notice and
fail to address
they
question
inapposite
part,
to validate an interim freeze of
must be
in order
hearing
given
is,
course,
It
the rule in this state that interim
duration.
substantial
exercise of
circumstances is a
the police
proper
appropriate
Thus,
Public
in Miller v. Board
vested in all
bodies.
municipal
Works,
this court
477
P.
Thereafter, 1961, in amended 65806 section (perhaps Legislature in to the 1960 that an decision) emergency response Mang provide interim could extend no than one unless zoning provision longer year, Metro notice and were afforded. v. Realty hearing Subsequently, Dorаdo, El 508 the court 480], County Cal.App.2d Cal.Rptr. ordinance which interim temporarily upheld emergency zoning certain construction of a comprehensive prohibited pending adoption court, in fact brief life” had a plan. noting “very stated that “When the and a ordinance 517), (p. permanent plan will thereunder are before notice and hearing county adoption, essential as an due (Italics required part process. ofprocedural [Citation.]” added; The court concluded that the of the short-lived 518.) p. adoption ordinance was the lack of notice or urgency proper despite hearing. case, 1965, Metro once and in again
Following Legislature the interim laws. amended ordinance the state zoning provisions Section 65806 was and section 65858 in its place repealed adopted force and effect that an interim ordinance “shall be of further from the date of thereof...” unless the body days adoption legislative a four-fifths vote and notice and extends the hearing given after two extensions are for one not more than such year; deleted and a was 90-day period Subsequently, permitted. two subse- inserted, was made for four month’s and period extensions, months and one notice and hearing, following eight quent Thus, months a considers year presently respectively. Legislature four reasonable of an interim permit operation emergency ordinance.
Real that since charter cities are from the parties urge exempt law, of the state and the four-month provisions particularly Code, limitation of section 65858 Gov. such cities (see 65803-65804), §§ for a of time before notice properly may provide longer period requiring Porter, to affected owners. (Fletcher hearing Yet, as I have out 452].) pointed my *11 case, ante, dissent the San charter cities and Diego page although law, counties are not bound of the state by specific provisions are to meet those minimum standards they required necessary owners with due of it law. is difficult to process Although limitations which constitutional specify precise principles impose of a to enact interim upon “emergency” ordinances without notice and the four-month limitation set hearing, forth in section 65858 reasonable in of the ease of appears light apparent to authorize an extended “freeze” In holding public hearings period. any event, the freeze authorized two-year préhearing period by subject excessive; ordinance seems real make no effort to clearly parties explain owners should wait be two before why property required years they are afforded an effective heard.1 As be stated one opportunity commentator, “The duration of a charter interim ordinance is controlled the individual charter or code. If there municipal limitation, time or the ordinance will not terminate within a reasonable terms, time its own could be made that the ordinance is argument Due would then the nеed to with the permanent. process suggest comply more to enact ordinances.” requirements necessary formal added; 122, 4.30; Cal. Practice see also (Italics (Cont.Ed.Bar) § Zoning p. Dorado, 508, 516; Metro v. El Realty County supra, Comment, 837, 846-847, 850; Annot., L.Rev. A.L.R.3d Syracuse 1196, 1214-1217, and cases cited.) that, afforded, 1I donot mean to if the notice and were a suggest requisite hearing freeze nevertheless would excessive. In be view of the evident difficulties two-year inherent in “we take notice of the fact drafting comprehensive zoning plans, judicial that it will much take time to work out the details of such a and that plan obviously if, incubation,
would be destructive of the of its plan during parties seeking evade the thereof should be to enter a-course of construction operation permitted upon which so far as to defeat in whole or in the ultimate execution of the might progress part Works, 477, 496.) (Miller Board 195 Cal. It Public has been plan.” supra, suggested that one to three in order to studies years may requisite rеquired complete 5.15, (Anderson, to draft an American Law of § necessary acceptable plan. Zoning, p. 275.) at is invalid for lack that the ordinance issue I conclude trial A of mandate should issue for and writ directing notice hearing. order court to requested by petitioner. injunction preliminary McComb, J., Clark, J., concurred. and denied 1975. was
Petitioner’s February rehearing application Mosk, J., deemed himself Files, J.,* sat who disqualified. place Clark, J., McComb, J., that the should were petition opinion be granted.
* the Chairman the Judicial Council. Assigned by