Court provides tools to thwart a run-away city council

February 27, 2018

OPINION of STEW JENKINS

The day after the San Luis Obispo City Council gave Broad and Chorro Street residents the middle finger replacing their parking and auto access with a “bicycle boulevard,” the First District Court of Appeal gave voters new tools to check a run-away, unrepresentative city council.

Voters are already putting together a charter amendment to elect council members from districts.

Currently, there is no representative serving on the council from the half of town north of 101. No representative from Laguna Lake, South Higuera, or near the Marigold Shopping Center serves on the council.

Massive developments without upgrading infrastructure have been approved in those areas, generating expensive lawsuits against the city. But now the courts have given voters an additional remedy. The right to vote on unpopular bonehead moves that used to be shielded from voter review by obscure “planning concepts.”

On Wednesday, in Save Lafayette versus City of Lafayette, the First District Court of Appeal overruled the City of Lafayette’s refusal to honor a voter referendum petition challenging the city’s decision to re-zone 22 acres of land. The parcel had been designated for professional office, but the city council changed it to “low density single family residential.”

In the 1980s, city attorneys and city councils fought, and won deBottari versus City Council, giving them the right to refuse to place voter referendums challenging zoning decisions on the ballot. Cities had argued, as did Lafayette and its city attorney now, that zoning amendments could not be placed on the ballot because doing so would violate a city’s right and obligation to conform zoning to periodic changes in a city’s “general plan.”

Lafayette followed an all too common practice that cities have developed, amending their general plan and then waiting 30 days before actually adopting changes to zoning ordinances. By not actually amending the zoning, this trick lulls voters into seeing no damaging changes during the short period voters have to circulate a referendum petition.

Disagreeing with the City of Lafayette, and the 1985 case of deBottari versus City Council, the Court of Appeal followed a recent California Supreme Court decision requiring local governments to place initiative petitions before the voters.

The justices decided that California’s “Constitution ‘speaks of the initiative and referendum, not as a right granted the people, but as a power reserved to them’ … courts have consistently declared it their duty to ‘jealously guard’ and liberally construe the right so that it ‘be not improperly annulled.’”

The court remanded the case to the Superior Court to order the city council of Lafayette to either repeal the zoning amendment or place it on the ballot. Pulling back the curtain on cities changing their general plans, then lulling voters into inaction until zoning changes were made that that impacted their quality of life, the court said that Lafayette’s “process of enacting the general plan amendment and then waiting 30 days to enact the zoning ordinance should not prevent the citizens of Lafayette from exercising their rights and voting to reject the rezoning of” the 22 acre parcel.

In this important case entitled Save Lafayette versus City of Lafayette, the Appellate Court returned to voters a veto of city council zoning changes at the ballot box that previously had been insulated behind obscure and arcane general planning processes.

Because of the holding’s importance, the Court of Appeal also ordered the trial court to consider what the City of Lafayette should pay in private attorney general fees to the lawyers representing the referendum proponents.

Stew Jenkins  is a San Luis Obispo public interest lawyer who handles municipal law, open government cases, 1st Amendment cases, estate planning and family law. Jenkins has advised on and handled initiative/referendum, FPPC and other election matters. Jenkins supports rights to equal justice, to organize unions, to project labor agreements, to health care and to equal dignity.