*1 Aug. S002285. 1990.] [No. al.,
SARA E. DAVIS еt Plaintiffs and Appellants, al., et CITY OF BERKELEY Defendants and Respondents; al., GENE MANN et and Respondents. Interveners *3 Counsel *4 Plaintiffs and Appellants. J. Burnett Luten for
Tony Tanke and Susan Zumbrun, Fisher, Charles, A. Lillick, R. Frederic Ronald McHose & Curiae behalf of M. as Amici on Anthony Coupal T. Caso and Jonathan Plaintiffs and Appellants. Gelb, City Attorney, Marjorie Deputy City
Manuela Albuquerque, Attorney, for Defendants and Respondents. McWhirk, Montano, Attorney de Ana M. John K. Van Kamp, L.
Roberta General, General, Ordin, Attorney Chief Assistant Andrea Sheridan General, Jennings, Deputy Attorneys M. Anne Marian M. Johnston and Rosenthal, Firehock, A. Jonathan Lee C. Robert Goldfarb & Lipman, McGrew, Weissbrodt, Mirel, Werner, Lehrer-Graiwer, E. Swiss & Frances McGrew, Aaronson, Hahn, Attorney James K. Lane Mark N. Jane Echeverría, Assistant and Pedro B. Thomas C. Bonaventura (Los Angeles), Lesel, City Attorneys, S. City Attorneys, Downey Deputy Julia P. and Dov of Defendants and Respondents. as Amici Curiae behalf Respondents. S. for Interveners and Peter E. Sheehan and Katharine Miller Opinion
KENNARD, voter requires approval The CaliforniaConstitution J. construction, or acqui- its any before project development, low-rent this is The issue here whether by agency. sition a state or local public of a ballot measure voter by approval is satisfied requirement constitutional be units to that the maximum number specifies but no other information provides or constructed developed, acquired, about ithe proposed project. issue, XXXIV,
To decide article language we must construe 1, of (hereafter XXXIV), section the California Constitution reads: “No be low rent shall hereafter construct- developed, ed, until, or acquired any by any body majority manner state town, be, qualified city, county, electors of or as the case construct, same, which it is proposed develop, acquire voting upon issue, such such voting favor thereof an election to be held for that or at purpose, general or election.” special Article XXXIV does not its express require terms infor- mation about the proposed provided to electorate the ballot measure by necessary means of which the voter obtained. The background historical of article XXXIV and the ballot argu- ments that accompanied measure when it presented to this state’s voters in 1950 establish that article XXXIV was intended to prevent locality from developing low-rent housing without of its prior approval however, They demonstrate, voters. fail to a ballot measure which this approval is obtained must contain specific project description timetable. *5 the
During nearly XXXIV, 40 years since the enactment of article public agencies have followed a of practice seeking constitutionally voter required by approval means of ballot measures that state the maxi-
mum number constructed, of dwelling units to be or developed, acquired but do not describe the units’ location or design, source of the project’s funding, any or dates of of the steps required to As complete project. we will voter explain, approval of ballot commonly measure used form is sufficient to provide article XXXIV authorization for the subse- quent construction of low-rent housing up to maximum number of units stated in the measure. Background
I. and Facts Procedural In 1977 and City of Berkeley 2 submitted its electorate ballot asking measures for votеrs authorization to develop city within the 200 units, and of respectively, low- or moderate-income The public housing. voters both approved by measures substantial margins. measure,
The 1977 entitled “Specific Authorization for Public Housing,” stated in part: “Any relevant . . public entity . shall be empowered develop, construct or acquire public housing renting for the of such purpose Berkeley, income persons income or moderate low financed through or acquisition construction development, such
provided sources, state, In local, any thereof.... combination private federal hous- any acquisition construction or development, no event shall herein, wording The of the 1981 measure exceed units.” ing, as defined virtually identical. an additional 300 units was authorizing fund- a 14-unit In scattered-site developed and Com- Housing California through Department ed program city funds developer, using munity Development. private land, the Cali- through a 62-unit funded redevelopment completed instance, the state participating In each Housing Financing Agency. fornia valid providing ballot measures thе 1977 agency accepted for the article XXXIV authorization project. 29, 1984, and Urban Housing
On June the United States Department from accepting applications announced that it was Development (HUD) to be used in the devel- authorities for federal funds eligible public housing indicated that housing projects.1 The announcement opment low-income each local only “region-wide,” were available for 489 units so funds The than 75 units. authority be to seek funds no more permitted would funds in ques- also that for the federal applications announcement specified 1, 1984, is, days by August tion had to be submitted within a hous- from general policy, application announcement. Under federal indicating a certificate in California had ing authority accompanied already been ob- article XXXIV had the voter required covered tained the units application. the federal funds Berkeley Housing Authority decided to pursue *6 announcement, the sought and it promptly
mentioned in the June 29 governed by funding housing projects administrative Federal of low-income is detailed (See generally two-stage process. regulations. seq.) procedure et The a 24 C.F.R. 941.101 § “application,” regulations prelimi “a agency A the define as must first submit an (24 nary housing development priority.” . . . need and submission which addresses local 941.103.) regulations application is field office to explain, C.F.R. As “The used the the § public housing allocation areas determine the extent that funds will allocated to authority authorities], an [public housing competing for contract within and which of several area, developing a given opportunity proposal first to submit allocation should be the agency stage be in project.” (Ibid.) application An been then has successful the . . . regulations as “a sub “proposal,” vited HUD to submit a which the define detailed information, control, neces including ... and evidence of site mission of all identification sary (Ibid.) public housing project.” for the field office to cases, funding provide preliminary In for the some HUD will or “front-end” 941.402(c), agency’s application. (24 proposal, the C.F.R. and submission of based on an §§ case, for, received, funding basis 941.403(c).) city on the applied preliminary In this the and application. of its re- including aрplication Council’s to submit an Berkeley City approval 1984, the July city passed On council quest preliminary funding. submission an housing authority’s application the resolution approving $1,056,000 surveys, “for exceeding for a loan in an amount not preliminary in connection and other costs planning, acquisition predevelopment site units.” The with of not to exceed housing dwelling projects HUD, city the authority then its housing application appending filed with XXXIV. and with article council’s resolution a certificate compliance of 500 The certificate cited the 1977 and 1981 of a total authorizations only and and 62-unit (the noted that to that time 76 units 14-unit up been projects) had under those authorizations. developed thereafter, Shortly authority council and the executed a agreement, federal law U.S.C. cooperation required (see the city would 1437c(e)(2)), agreeing exempt develop- proposed § ment from local taxes and would certain services without supply if federal charge funding was November HUD provided. approved and funds application reserved for the construction of the in- project, $1 cluding some million in “front-end” funding.
After its application housing authority ex- approved, undertook tensive activities to identify sites; to possible building survey and inspect sites; waivers, to develop preliminary architectural to obtain zoning plans; use variances; permits and to comply with requirements activities, California Environmental Act. In Quality the course of these over $1 30 public hearings meetings were held. The million in preliminary funding obtained from HUD was used for this part the development process.
In July authority submitted to HUD its proposal specifying the proposed locations and design scattered-site project. (See thereafter, C.F.R. Shortly 941.404.) plaintiffs (five residents and § Berkeley taxpayers who opposed seventy-five-unit scattered-site pro- posal) requested authority city’s place project before voters for under article XXXIV. housing authority denied the request. then
Plaintiffs filed the present proceeding seeking stay further devel- *7 opment of the 75-unit an to project pending election whether the determine voters approved of the аs it had been in the defined submit- proposal ted to HUD. Plaintiffs acknowledged that the number of units of low-in- come to be did not total developed by exceed the number approved the 1977 and 1981 ballot measures. But they maintained that those ballot measures, they because not did describe this specific 75-unit did proposal, In XXXIV. response, article required the authorization provide had requirement voter approval article XXXIV’s
city took the that position measures. Two the 1977 and ballot fully passage been satisfied to beneficiaries claiming potential be city, residents indigent city’s position. to support in the action intervened project, proposed granted judg the trial court summary judgment, Both sides moved for interveners, affirmed Appeal and the Court of city ment in favor of We to plaintiffs’ review consider granted the judgment. did not ballot measures question the 1977 and 1981 contention that XXXIV.2 satisfy of article the requirements
II. Discussion initiative, the enacted provision When a constitutional construing re Lance W. (In consideration. is the paramount intent of voters 631, determine that 873, 744].) 694 P.2d To Cal.Rрtr. 37 Cal.3d [210 intent, words their language, giving first to the provision’s we look 45 Cal.3d Deukmejian (1988) ordinary meaning. (Lungren meaning is and its language If the clear 755 P.2d Cal.Rptr. manifest, is no need to ordinarily there to at hand relation the problem (Ibid.) interpretation. for the provision’s proper search further to ob requires local entities article XXXIV Although specifically it has housing project,” a “low rent undertaking tain voter before such a ballot proposi to what information prescribe no language purporting measure must specify It state that ballot tion must contain. does not units, the location or value of the size of the number of units contemplated, may developed, anticipated the site or sites on which the residents, other fact design, architectural number of the proposed It not limit the to a voter’s decision. does that be relevant might logically measure, ballot nor may by single number of be authorized projects projects. the authorized it limit the time for completion does however, infor- an intent to certain require argue, Plaintiffs the voters term which is what “project,” inferred from the mation can be According plaintiffs, XXXIV election. in an article are asked authority’s pro pending, approved HUD April 2In while this case was completed, housing units has now been Although proposed posal. construction city proceeded in violation of improperly if we were to conclude that matter is not moot: XXXIV, including, plaintiffs, example, variety might remedies be available city use low-income discontinue their requiring sell the units or to an order however, XXXIV, we housing. violate article light did not of our conclusion remedies, any, in such properly if be invoked explore question of need not what situation.
235 a mere affirmation of an a not single undertaking, a discrete “project” by unstated means. Plain- objective be achieved at an unstated time and XXXIV not a “unit permit banking” tiffs also maintain that article does authorization, authority in relies housing to voter which a approach units to authorize a housing on voter for a stated number of years a of until the variety period of funded over separately undertakings of total number units has been exhausted. ambiguity.3
The term in article XXXIV is not free of In as used “project” a variety meanings, ranging “plan” common word has a of from usage idea, “government-subsidized or “mental notion” a block conception, or at Diet. (12 English houses or available low rents.” Oxford apartments (2d necessarily ed. a with 1989) 597.) general, recogni- p. project begins tion of a need and with more detailed specific proceeds progressively plan- ning, finally to execution of the leading plans completion or plan in one or more A in project stages. project begins vague thus the most generality actuality. ends in the most Article XXXIV does not specify the at precise point along progression which the election must But, be held. because in the term both and federal “development” state generally law is understood to include Drake v. planning (see 872, Los Angeles (1952) 38 Cal.2d v. 525]; Blodget Housing [243 Authority (1952) P.2d 897]), article XXXIV’s Cal.App.2d [243 injunction be ... any manner” until the “developed election is provides strong held evidence voters intended the elec- tion to be at a relatively early held stage, before substantial has planning Thus, been cоmpleted. “plain language” provision constitutional is not with inconsistent the use of ballot nonspecific measures.
Because meaning of XXXIV relation to problem hand cannot determined conclusively solely to the reference plain terms, meaning of its we resort must to extrinsic construction aids. One of the aids used to probable determine the meaning uncertain in a language constitutional amendment is the historical context in provision was enacted. (California Housing Finance Agency Patitucci Cal.3d 583 P.2d Cal.Rptr. 3Article provision defining XXXIV does contain a further the term rent “low
project” provision. regard: as used in the constitutional The section reads in this “For the purposes housing project’ of this article the term ‘low rent shall mean com posed dwellings, apartments living of urban or rural persons or other accomodations income, low part public body financed whole or in the Federal Government or a state or body to which the public supplying Federal Government or state extends assistance all labor, liens, part by guaranteeing payment оr portion otherwise.” Like text, provision quoted specify constitutional does not this definition the term whether “project” apply only particular site-specific intended to also to a more general long-term “project” develop specified number of low-rent units in community.
236 XXXIV, at the the voters of California Novem adopted by
Article
Election,
7, 1950,
put
initiative measure
forward
General
was an
ber
Authority
v.
Housing
Superior
to this court’s June
decision
response
(See
(1971)
James v. Valtierra
457],
Court
As this court has “the concerns, community’s on a were moved two the direct drain primary environment, tax by the represented finances and the effect on its aesthetic day.” (California income Hous exempt owned low publicly Patitucci, 3d ing Agency 178.) 22 Cal. supra, purpose Finance an these weigh against to afford voters costs opportunity measure was need for affordable that has continued pressing obvious and day. that an article plaintiffs argue From this historical background, con XXXIV measure must describe the to be developed, ballot sites, structed, its site so that the voters including acquired, proposed community. to the its financial and aesthetic costs intelligently weigh election take the form of referendum argue Plaintiffs also should federal or entity’s on the specific application decision submit what the voters precisely state because such a referendum was funding, Eureka denied. were *10 we find arguments, the and force of these recognize logic we
Although First, the variety of reasons. public for a ultimately them unpersuasive an seeking oppor the residents of Eureka were housing on which “project” involved here. more than the ballot measures tunity specific to vote was no units housing the number of low-rent (500) The Eureka identified proposal but did site designate specific which funds were planning sought for units, units, the the time span the the size of the value of the property, built, Housing Authority be other detail. any (See which the units were to or Court, legislative v. 35 Cal.2d at Thus the local act Superior 553.) supra, p. by the Eureka referendum was no attempted challenge residents to by Berkeley voters in this approved more than the ballot measures case.
Further, the 1950 ballot nothing pamphlet supports the regarding timing contention either contents or the plaintiffs’ XXXIV the argument article election.4 In that pamphlet, of article XXXIV the were primarily discloses that support proponents that, law, concerned with fact then the under the existing municipality could make a fiscal substantial commitment to public housing the Analogizing without vote of the matter to the issuance of people. bonds, that, bonds, revenue the argued as with such voter proponents prior housing should in the public required.5 Nothing argument be pamphlet arguments long recognized Ballot have proper been as a extrinsic aid in con struing by adopted popular (White constitutional amendments vote. Davis 757, 775, Cal.Rptr. Cal.3d fn. 11 533 P.2d [120 argument 5The ballot in favor proposed initiative read in full: “A vote for ‘Yes’ against housing. constitutional is a vote public amendment neither for nor It is a vote for the right say ‘yes’ community to housing future or ‘no’ when the рublic project. considers a “Passage town, Housing Projects city, of the ‘Public will Law’ restore to the citizens of a be, county, right as the case public housing to decide whether is needed or wanted in particular locality. each is not present. Such the case at year “Time past after time public housing within California had communities have projects upon regard forced community them without either the wishes of the citizens or particularly long-term, needs. This is a critical matter in view of the fact that the multimil- assistance, public housing lion-dollar contracts call for tax waivers and other of local forms says subsidy which Federal Government will amount to Half the federal cost of long as it exists. government “For expense such to force additional hidden on the voters at a time when tax- living high ‘gift’ ation and the cost have reached an extreme is a of debatable value. It by accepted rejected be should ballot. “If, hand, on the other certain communities are such dire need of cost while, voters, long-term need, subsidization is deemed best worth local who know that right exрress have the should their wishes ballot. case, strenghten “In either vote proposed self-gov- ‘Yes’ for this amendment local will community right ernment and restore to the to determine its future course. own “Furthermore, financing projects adaptation principle an law, bonds, issuance of revenue Under California revenue bind a bonds. communi- many debt, ty years approval given cannot be issued without ballot. Public however, authorizing measure of a ballot that voter approval
suggests, would number of low-rent designated of a future Sacramento (Cf., e.g., satisfy provision. the constitutional inadequate Parties, 197, 6 Cal.2d etc. (1936) U. Dist. v. All 506] M. terms”].) general “in broad and of bond issue submission [approving that it Moreover, XXXIV’s indicates language of article the derivation like those used ballot measures nonspecific not intended to preclude XXXIV language, previously in this case. The disputed *11 (Stats. Authorities Law Housing of the provision was modeled on quoted, 1950, 4, XXXIV 1938, Sess., In article was et when seq.). Ex. ch. 9p. drafted, (hereafter Authorities Law Housing of the 8(b) former section . . be . could housing project” that “no low-rent 8(b)) provided seсtion authority governing until the by housing a local or constructed developed by resol “said city county project” or had body approved of the affected .6 XXXIV, 8(b), section modified terminology the basic using Article ution housing a “low rent by requiring substantive content 8(b)’s section electorate, by the governing as well as by the local project” approved that the drafters of But there is no indication body locality. of the something mean rent housing project” XXXIV the term “low intended in 8(b). than it had meant section different XXXIV, into article incorporated of section 8(b) When the language regularly California were throughout local entities bodies of governing propos- rent housing projects,” nonspecific as section “low 8(b) approving, in developed units to be housing maximum number of low-rent stating als the units or other infor- sites for locality, designating the relevant without Blodget Housing v. (See, e.g., construction. design their or regarding mation 45, Board of County Kern [describing Authority, Cal.App.2d supra, authority’s prelimi- of a local housing in approval August Supervisors’ connec- surveys planning “to the cost of nary loan cover application give them years to the voters to housing long of hidden debt should also be submitted and its housing the cost. right the need for is worth to decide whether self-govern- strong Housing Projects a vote for “A the ‘Public Law’ is ‘Yes’ vote for community’s pro- in the democratic in the future and expression ment. It is an of confidence democracy pro- made America strengthen grass roots which has government. To cess of Projects (Ballot Housing the Public Law.” peoples, free vote ‘Yes’ tector of the world’s Const, Amends, 7, voters, (Nov. arguments Gen. Elec. Pamp., Proposed with to Cal. 1950) pp. 12-13.) 1945, housing or 8(b) part: provided relevant As amended in section “[N]o constructed, authority by an developed, or owned project shall hereafter be slum-clearance located, and until project such except the school district after consultation with be, proposed to devel city county, in which it is body as the case governing of the same, (Stats. duly adopted.” approves resolution op, own the said construct or 1945, 766, 1, 1450-1451.) pp. ch. § Health and changes 34313 of the 8(b) with minor as section was codified section Safety Code. county in the housing units of low-rent of 750 the development tion with City adopted ordinance is an significance Of Kern”].) particular Authority Housing (See 1949. City Angeles August of Los Council In relevant 857-858 38 Cal.2d A. City of L. the develop approves Los City Angeles ordinance states: part, “[T]he construction, projects ment, a low-rent operation units, (10,000) in accor dwelling ten thousand consisting approximately . . . .” (L.A. Law Authorities Housing Section 8(b) dance with time, entered into the council At the same added.) italics Ord. No. authority. The housing and its local between agreement cooperation undertake, develop, authority “agrees housing recites that the agreement (here projects or low-rent a low-rent and administer 10,000 family consisting ‘Projects’) approximately inafter called and to authority] units on sites to be selected dwelling [local or contracts with years three to secure contract endeavor the next during for Federal a Federal loan and Public Administration for Housing of said in the and administration annual contributions to assist *12 this ordinance The actions Prоjects.” (Italics added.) approving council’s in Drake were confirmed (the validity and of which cooperation agreement 872, the “unit 876) 38 Cal.2d indicate that City Angeles, v. Los supra, when already 8(b) for section recognized approvals was banking” approach drafters of find indication that the article XXXIV was drafted. Thus we no way description article XXXIV intended to more in the require units. dwelling than a statement of the maximum number of low-rent by local public agencies We consider next the practices adopted XXXIV. We have recognized of article implement requirements is undermined when confidence the institutions of public government are declared uniformly many years entities over practices followed County San Bernardino Agency unconstitutional. v. (Redevelopment 255, 886, 21 We have also Cal.3d 266 578 (1978) Cal.Rptr. [145 by the a new constitutional recognized given provision construction administration its and enforcement governmental charged entities with City San Mari judicial (Heckendorn entitled to considerable deference. of 64]; 481, 324, no 42 Cal.3d 488 723 P.2d Amador (1986) Cal.Rptr. [229 Valley Joint Union Sch. Dist. v. State Bd. High Equalizаtion 239, 1281].) Accordingly, Cal.3d 583 P.2d Cal.Rptr. comply and followed with
practices adopted governments considered, given XXXIV be of article requirements appropriately deference, that constitutional determining provision’s considerable meaning. enacted, XXXIV year
In November after article was measures to the County of Yolo submitted a number of low-rent following was the county. voters of various cities within the Typical measure, which was submitted to the voters the Town of “Shall Esparto: . . . of a low rent ... housing project not more than income, Sixteen (16) dwelling units families of low to be situated within the . . . Town of ... be The Esparto approved?” identify measure did not a particular sites; site or nor did it tie the measure to a funding particular process or an set date for the expiration approval.
Also in November City of Los an article Angeles placed ballot, XXXIV measure on the asking the voters: “Shall initiation . . . of a low-rent public projects, consisting of approximately 10,000 units, dwelling Housing Authority sites selected City instance, too, Angeles Los ... In adopted?” the measure simply identified the number of housing units for which approval being was case, evidence, sought. have plaintiffs no nor have we presented any, found that either of these measures challenged on the basis of noncompliance with article XXXIV. election,
Since that initial 1951 cities and counties California throughout have repeatedly utilized this same form of ballot measure to nonspecific with comply article XXXIV. The record contains numerous examples small, similarly worded ballot measures that local entities—large and urban 1950’s, 1960’s, 1970’s, and rural—have placed before the voters in the 1980’s.7 following sampling throughout is a of communities the state that have submitted similarly propositions: worded ballot elec., (June G) Housing Authority County Antioch Measure [“Shall *13 of of Contra develop Costa be authorized to . . . . up dwelling . . to 100 units of low-rent hous- ing City . . . within the of Antioch?”]. elec., City Brawley (Apr. Prop. A) City Brawley 1984 develop the of . . . . . . [“Shall of public housing for low to moderate income ... families of not more than two hundred units?”]. City (Nov. elec.) Authority Fresno Housing City 1972 the of the of . . . Fresno [“Shall of develop City ... in the . . housing projects eight of Fresno . low rеnt of not to exceed hun- dwelling ?”]; (Mar. dred elec.) units . . . qualified City 1979 the electors of the of Fres- [“Do pursuant no to Article XXXIV . . . development. City the . . within the of Fresno 1,000 of not dwelling more than units ... for low to moderate income families?”]. City Inglewood (Apr. elec.) City Inglewood develop 1975 the of . . . . . . within [“Shall of City, Housing the dwelling Senior Citizen . . . throughout not to exceed 500 units in total City?”]. the elec., City (Nov. D) Modesto 1978 Housing Authority Measure . . . the [“Shall of County develop of housing City Stanislaus . . . low rent in the of Modesto of not more than dwellings ?”]; (June 400 . . . elec.) Housing Authority 1972 the . . . develop ... [“Shall City the of Elementary Modesto and Modesto School District. . . housing, low rent of not aggregate to exceed in (300) dwelling the three hundred units . . . ?”]. City elec., (Apr. 2) Pleasanton Housing 1972 Measure No. Authority the . . . [“Shall of City construct within the of Pleasanton rent low not to exceed 150 . . . ?”]. City (May elec.) Richmond Housing Authority the develop . . . . . . [“Shall with- of City
in the of ... Richmond a low rent of aggregate not to exceed in the (200) dwelling ?”]; (May two hundred elec.) units . . . Housing Authority the [“Shall concluding, administrative decision any judicial or
We are unaware of satisfy to the is inadequate a ballot proposition even thаt such intimating, Indeed, every is true: precisely opposite XXXIV. of article requirements validity has confirmed the matter body has addressed governmental XXXIV ballot measure. form of article Community with, of Housing California Department To begin assist by to Legislature created agency expressly state Development, & housing (Health and moderate-income communities low- developing XXXIV as Code, article consistently interpreted Saf. seq.), et has § Berkeley its voters ballot measure submitted authorizing form of Legal “Article 34: Issues in 1977 and 1981. In a entitled pamphlet Measures,” advises cities and counties Ballot the department specifically City Berkeley used here very utilize ballot language form of Cal. & Housing an XXXIV ballot measure. drafting (See Dept, Dev., (1980 rev.) 34: Issues and Ballot Measures Community Legal Art. pp. 18-19.) of this form of Attorney validity has confirmed the General likewise a success- Attorney
ballot measure. General was asked whether to 100 units of ful ballot measure to city-sponsored develop up authority public housing development would provide city. (59 an other In a formal agency Ops.Cal.Atty.Gen. than the opinion mea- Attorney 212-213 General concluded that the ballot (1976)), the number of units up designated sure would authorize the ballot measure its terms had not agency, long another so authority body. sig- limited the Of grant particular nificance, blanket authori- opinion stated: the electors of give “[I]f unit ty a 100 rent the constitution would housing project, low City develop . . . . . . within ... rent of not to ex- Richmond a low aggregate fifty . (150) dwelling ceed in the one hundred units . . ?”]. (Nov. elec., A) qualified . . .approve Sacramento Measure electors [“Do *14 City housing provide ex- development... projects the rent the ... to not to of low within elec., ?”]; (Nov. D) dwelling qualified of ceed 800 units . . . 1975 Measure the electors [“Do City housing projects the development... the the rent of Sacramento of low within 1,000 City dwelling . provide to not units . . more than ?”]. elec., City County (Nov. Housing H) Prop. and San Francisco 1968 the Authori- [“Shall of housing ty City County develop .. . . . . of Francisco ... a low rent within the and San aggregate (3,000) dwelling units projects of exceed in three thousand or not to the . ?”]. City (June elec.)] Authority County Housing the the of San Stockton 1956 of [“Shall of Joaquin City housing develop ... in the of ... rent of to exceed Stockton low Housing Authority ?”]; (June elec.) . aggregate dwelling in the units . . the [“Shall projects . to develop . . ... in ... a low or of not the of Stockton rent aggregate dwelling exceed in the units . . . ?”]. any body’ the ‘state in prevent development by as defined Article public (Id. Thus, XXXIV.” at Attorney clearly the p. 213.) General’s opinion ballot recognized propriety authority” the of a measure granting “blanket for a number of the designated approved by low-rent voters housing before the of adoption any plan or for their In a specific plans development. Attorney subsequent the General the opinion, general propriety reaffirmed 205, of this form of article XXXIV ballot (66 measure. Ops.Cal.Atty.Gen. 209-210 (1983).) actions,
By the its has demonstrated that the Legislature it shares Attor ney the General’s view use of regarding nonspecific ballot measures to satisfy 1976, article XXXIV’s voter approval requirement. Legisla the ture added sections 36000-36005 to the Safety Health and Code provide means determining for whether local in with actions are compliance XXXIV. Both section which authorizes the bringing of a “validation action,” section and which time prescribes the limit for prosecuting action, such an make clear Legislature’s the view that the approval voter of housing by may article XXXIV required and should be obtained the entity’s local of the preliminary approval of submission non before by which the “application” procedure for obtaining funding federal words, is initiated.8 In other Legislature anticipated entity that a local would as the proceed city did this case: seeking obtaining general voter approval of a designated number of low-rent housing units before forward going to the application stage. Legislature’s terms, interpretation of uncertain constitutional as reflected in enacted subsequently legislation, entitled to great deference courts. provides: may brought... validity Section 36003 “An action to determine the entity giving action public preliminary local approval proposal application or to a or final may housing which benefiting persons obtaining result assistance of low income without prior approval pursuаnt (Italics Article XXXIV the State Constitution.” add referendum ed.) judicial attacking validity Section 36005 states: “No questioning action or otherwise public entity giving action a local proposal to a application or which final may housing benefiting persons obtaining result in prior ap- assistance income low without proval pursuant to Article brought XXXIV the State shall be prior adop- Constitution to the legislative body entity tion of a or public approving resolution ordinance any proposal application, brought days nor such action be time after 60 adoption from the approving (Italics date of proposal.” ordinance resolution added.) (ante, p. 1), As noted “proposal” “application” above fn. the words are terms of art in public “Application” preliminary field. refers to . . . “a submission which development priority addresses local need and . . . which used [and is] [competing field office determine . . . of several [HUD] . authorities] given . . opportunity proposal project” (24 should be the first developing submit a *15 941.103), C.F.R. “proposal” while refers to . . . all detailed submission ... of infor- § “[a] mation, control, including necessary identification and evidence of site field for the office to approve housing project.” (Ibid.) a 100, 38 Cal.3d (1985) v. Martin Agency Park Redevelopment
(Huntington 133, 220].) Cal.Rptr. 108 [211 holding on point, direct
Finally, judicial there no although XXXIV article validity nonspecific of have upheld cases courts several here, any suggestion at issue without similar to those ballot propositions, e.g., constitutionally suspect. (See, of voter approval that this form Cal.Rptr. Housing Authority Cal.App.2d v. Peden (1963) [28 “ ‘Shall part: relevant validity reading, of ballot measure [upholding 11] . . . . . . within County Kings develop Authority Housing exceed of not to projects a County Kings housing project ... low-rent . . . of low seventy dwelling persons units (275) hundred and five two Housing ”]; income?’ Au elderly low including eligible persons income 348, 355 thority Cal.App.3d Senior Citizen Park Monterey validity “permitting of ballot measure [upholding Cal.Rptr. 497] ... for senior housing 150 low-rent Housing Authority to acquire also, City see Drake v. persons income”]; low handicapped citizens and Angeles, 874-877 council supra, Los 38 Cal.2d [upholding Code, & Saf. low-rent under Health similarly described § sum, consistently
In establishes that article XXXIV has been record entity 40-year history its a local interpreted throughout authorizing ballot to its electorate housing precise submit proposition not form utilized this case. Plaintiffs’ are of sufficient force to arguments XXXIV; cause this repudiate long-standing us of article interpretation have that this provided no their assertion plaintiffs persuasive support of voter authorization would the fundamental type purpose thwart constitutional provision. ability
Our not in manner diminish the voters’ decision does Rather, political control decisions. it issue places it, in the arena. As here XXXIV does squarely political we construe measure; unwilling form of ballot if local are prescribe single voters nonspecific authorization for a stated number of low-rent units, can insist a more they against vote such measure and general of article past, and limited submitted. specific proposal opponents XXXIV measures have at times a “no” vote such just grounds advocated Gen. (see, e.g., County Propositions, Ballot San Francisco Pamp., H, (Nov. 29), Elec. measures 1964), argument against Prop. p. and some have been defeated on this apparently basis. if
Similarly, it is to local voters that the low-cost important aby authorized ballot be built within a proposal specified period *16 all, may time or at vote in they any not refuse to favor of measure not Further, a time so containing long limitation. as the development process particular already begun, has there to be reason appears no not, why local voters through any could the initiative rescind procedure, they unused article XXXIV if authorization conclude that such low-rent units are no or longer Finally, needed warranted. voter of a approval body does not mandate its completion deprive governing local discretionary it authority: locality if concludes that the needs of have or that the is not in changed specific proposal otherwise the interest of community, body may local a local governing disapprove authority’s if subsequent request authorization to submit But proposal. case, are Berkeley’s voters as electorate in this willing, community’s their of a au- pursuit long-term number of thorizing specified units without details or limita- time tions, nothing history purpose article XXXIV indicates that such should not be given effect.
We conclude that Court of correctly and the trial court held Appeal that the ballot approved by city’s measures voters 1977 and 1981 XXXIV, complied with the of article requirements and that the was not compelled article XXXIV to secure further voter authorization before with the proceeding 75-unit low-income proposal challenged case.
The Court judgment Appeal affirmed.
Lucas, J., Broussard, J., J., J., Panelli, Arabian, J., C. Eagleson, concurred. view,
MOSK, my I dissent.In the conclusion the majority J. 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 to the total number of units area, that be built throughout is inconsistent with language, history, and the of that purpose provision. result the majority’s is to holding permit local entities to governing any build public housing size, future, type any and at place, only time provided the total units do not exceed the number authorized the electorate perhaps decades before construction proceeds. first, XXXIV,
Turning, to the purpose underlying article the majority recognize that the primary leading concerns the voters to adopt provi- sion were twofold: the on a community’s drain finances represented by the construction of public housing, and tax-exempt protection aesthetic *17 Agency Housing Finance community. (California the
environment of Cal.Rptr. 22 Cal.3d Patitucci holding. majority’s under the is satisfied of these purposes Neither an unlim- decision, stockpile to for community is permitted Under this elections, the in past units authorized any number of housing ited time some, none, all of units or these to build has the discretion body governing Indeed, Berke- City Berkeley (hereafter it do so. the whenever chooses to its block of authorized that construction of argument conceded at oral ley) next 50 or more any over the theoretically could take at time place units the govern- the within which years. any knowledge period Without to be units or the number of units body mental intends to construct the built, any do have authorizing the voters at the election construction incurred their public the value of the costs meaningful present sense of the decades after authorization. Since construction of the can occur at and the need not be afforded they election which are authorized voters they building or the disapprove project, the opportunity effectively the the ability impact are to assess the fiscal deprived Thus, at a locality it is units authorized on the at the time built. stockpiled be the is in financial built locality time when the sound condition later, when, matter to a many years at a time if the were governing body put vote, locality’s be because drain on authorization would denied the financial resources. XXXIV,
The second article of the aesthet- purpose underlying protection community, values of is the hold- majority’s ic the also unattainable under It is that if the has no locations ing. apparent knowledge possible details public housing any type for or as to the and number project, built, ability units to be it does not its for have to vindicate concerns such values. XXXIV mаjority declare afford a com- designed
munity the weigh “obvious and need opportunity pressing housing” against affordable the considerations outlined above. (Maj. opn., ante, however, at It does not p. 236.) recog- how the needs explain, by the many years ago nized voters perhaps needs represent constructed, community actually when the can period is extend into the indefinite future. XXXIV,
Turning language majority of article hold that word as used in that it can be “project,” provision, ambiguous because have interpreted narrowly broadly, voters must intended election of a authorizing public housing development construction “relatively early held at a before substantial has been stage,” planning ante, (Maj. opn., no completed. p. 235.) But “substantial planning” that matter need because “planning” occur the local governmental body might decide never to build the number of units authorized If election. we give ordinary meaning, words their provision majority’s of the word an interpretation “project” meaning open-ended *18 a authorization for specified may may number оf units that not be built at some time in the indefinite future strains all rational bounds. I with agree plaintiffs’ “[j]ust observation that as ac- deposits savings count do not to money, constitute unit bank is not a plan spend so a to plan develop housing.”
Whether the broadest or narrowest definition of the word is “project” chosen, every definition of term involves some undertaking isolable that has been more or concretely less realized. Even if presume we voters intended the word used in to be its least concrete “pro- sense as a than posed plan” rather as a built of “systematically houses or group apart- . . buildings ment . planned government with to serve support low-income families” (Webster’s New Internat. Diet. ed. (3d 1961) it is p. 1813), impos- sible to conclude that Berkeley submitted such a to “project” its voters for authorization. The 1977 and enabling sought measures author- general ity for construction of to 500 units of up housing, low-income Berkeley has since utilized to build several unrelated over a projects period than more a decade. Nothing at a approximating “proposed plan” “relatively early stage” for actual public approved instead, electorate; Berkeley requested prospective authority to generate and a variety execute of such within proposals relatively expansive bounds. An endorsement Berkeley’s authority ongoing to formulate and imple- however, public housing ment policy, synonymous is not with an endorse- ment of generated “proposed plan” subsequently to that pursuant poli- cymaking prerogative. The constitutional text plainly contemplates latter.
This conclusion is corroborated the use of the “any phrase develop- to ment” define “low rent housing project” purposes article XXXIV. A alia, act, standard reference defines inter “development,” as “the process, or result of developing,” being “the state of or “a developed,” gradual unfolding by which ... is something developed.” (Webster’s Internat. New Diet., definitions, supra, 618.) p. Relying these mistakenly defendants contend that the 500 units and approved 1981 were simply beginning of the “process ... developing” challenged thus that it was properly authorized under article XXXIV. The argument flawed three reasons.
First, the context of the “any development” article XXXIV phrase far suggests something more concrete than the nascent stages a low-rent defines provision planning process: generalized .” . . . dwellings rural urban or “any composed dem “any modifying development” language The italicized added.) (Italics rather to its but process refers to a planning phrase onstrates otherwise, must read the we result; language construe the attempt if we obligation of our violation provision out of “composed” word World (ITT text.” every word in the constitutional “give significance Communications, 37 Cal. 3d County Francisco Inc. v. San 693 P.2d Cal.Rptr.
Second, in article XXXIV refers if that “development” even we posit never- ... of such a process the earliest stages “process developing,” authorization Berkeley general When obtained object. theless assumes some *19 units, object to 500 low-income of its development to construct up here at obviously not have been process could issue, en- years which until 3 after of last passage was not conceived measure. abling definition that is evi-
Finally, “development” defendants overlook the of “a dently its use in article XXXIV: tract of applicable developed most to land; (Webster’s utilities . . . .” having necessary subdivision [especially] Diet., is a of p. 618.) degree New Internat. in this definition supra, Implicit of measures did not project specificity language Berkeley’s enabling begin to approximate. view, my ordinary of the in article XXXIV meaning language used voter rather than the
contemplates approval specific housing projects prospective authority locality broadly to formulate public policy.
The second on is ground majority’s holding rests historical. conclusion, however, Contrary their in favor argument to ballot difficult initiative It is to supports plaintiffs’ position. strong read the state- ments made therein vindicating right aimed the electorate’s decide locality” whether is needed or wanted in each “public housing particular conclude, and to majority, as do the that all the voters intended enshrin- ing in the Constitution was to to themselves the prоvision right reserve community to decide the maximum of public housing number units the future, build might want to at some time in the and all other decisions built, such even whether it will ever be be left to regarding housing, would Amends, their (Ballot local bodies. to Cal. governing Pamp., Proposed Const, voters, arguments (Nov. 1950) 12-13.) with Gen. Elec. pp. The bulk of the ballot to the financial effect of tax- argument devoted The concern is the exempt public housing expressed communities. danger incurring significant “hidden debt” in the form of subsi- public dies, such as free local services and from valorem exemptions property ad taxation, the prior without consent of local voters. For their evaluation of a financial indeed project’s impact, require regarding voters do information scale, location and possible type development, period within body which a intends to it. public construct Finally, argument’s the ballot reference to voter of revenue approval bonds is The states that argument financing instructive. “the of public is an housing projects of the issuance of revenue adaptation principle law, bоnds, bonds. Under California a community revenue which bind debt, many years cannot given by be issued without local ballot. Public its long years of hidden debt should also be submitted to the voters them give to decide whether the need for right public is worth the cost.” It (Ballot Pamp., op. cit. was settled at supra.) the time of article XXXIV’s enactment that “public bodies submit bond propositions broad and terms.” M. U. Dist. v. general (Sacramento Parties, All etc. (1936) Cal.2d Bond elections “are debt, ... required to obtain the assent voters to a to the amount, must, course, the object, and for proposed. amount ballot; stated on the general must be with purpose stated cer sufficient *20 them, tainty to the voters object intended; and not mislead as to the inform but the the details of work need not be proposed improvement given at length Angeles the (Clark v. ballot.” Los 160 Cal. 320 (1911) [116P. 966], added.) italics Insofar XXXIV as article is an “adaptation” bonds, voter required authorization issuance revenue it follows that ballot measures under the constitutional provision “sufficient cer require tainty” in of “the specification work.” proposed addition,
In their majority the conclusion two support arguments based on The past first relates the practice. practice allegedly followed XXXIV, not with the regard to of article former interpretation but section claim 8(b) California’s Authorities The Housing majority Law. language of article XXXIV was on former 8(b), based section that “unit section, that, therefore, banking” recognized was a under the practice the drafters of the constitutional must have intended to authorize provision ante, “unit as well. I banking” (Maj. opn., 238-239.) the pp. challenge correctness of both the is no premise and conclusion. There evidence that the voters who adopted constitutional were aware of the provision alleged of “unit if it in practice banking,” Certainly fact existed. no case such a either approved practice before after the election at which the initiative was The by majority two cases cited adopted. indicating their recitation facts that the was established under former practice section both XXXIV 8(b) were decided after when article was P.2d Cal.App.2d Authоrity Housing (1952) [243 v. (Blodget adopted. 38 Cal.2d L. A. City Authority Housing 897]; was a banking” “unit that Moreover, do not establish cases even those did decisions involved those city councils The practice. terms, have they might but in general described housing project proposals at the time before them projects regarding proposals had more specific A., fact, L. Authority v. Housing In were given. the approvals for a rely, an majority application upon 38 Cal.2d supra, filed with was for development loan preliminary city by the approved after the was days two government federal rath- articulated council, proposal considered an that the council indicating housing. of public long-range development plan er than broad in those two the councils not before if information was Even such em- cases, approving projects the resolutions the circumstance that banking” of “unit indicate that a practice does not general language ployed the construc- authorizing examination of the resolution existed. A careful reveals 10,000 case Angeles units in the Los low-income tion of resolution, itself to con- city bound contrary is true. 10,000 the federal try government and to to obtain from struct the Thus, consider unlike the measure we years. loan for that within purpose units, case, and there was a to build the required in the present banking.”1 time be viewed as “unit hardly limit set on its actions. This can years, that for 40 final basis for their conclusion is majority’s by authorizing article XXXIV public have agencies implemented involved ballot measure type nonspecific based on housing projects *21 with A should be construed accordance here. constitutional provision history language provi- unless the governmental practices settled contrary majority opinion and the clearly interpretation, sion require justify sufficient force to are not of plaintiffs’ arguments determines ante, 239-243.) (Maj. pp. of the practice. opn., repudiation rule, construction contemporaneous basis for the underlying courts, is that the in most cases be followed standing should long “Coop Angeles stated that the would enter into The Los Council’s resolution city’s authority agree Agreement” the latter would under which eration with consisting projects, approxi “develop” and” “administer” low-cost 10,000 units, authority during the next mately family dwelling “endeavor and that the would Housing for a years Public Administration three to secure a contract or contracts with the and adminis annual contributions to assist in Federal loan and for Federal Projects.” tration said has public relied on the interpretation, and significant harm would result if the enactment were construed in a contrary manner. Agen (Redevelopment cy v. County San Bernardino Cal.3d Cal.Rptr. Sutherland, 133]; 2A Statutory Construction (4th ed. 1984) 49.07, p. 394.) But such harm would not occur under the I approach § urge. view, In my that article ruling XXXIV requires more specific language than that used in the present case should be only, prospective so that public housing projects approved prior elections could proceed. This result would eliminate any harm that could result from the public reliance on the incorrect construction placed article XXXIV in prior years, while simul taneously avoiding continued violation of the requirements of the Con stitution ballot measures phrased terms so broad as to be virtually meaningless to the concerns of the authorizing housing projects.