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Solimar Research

Land Use Measures Kept Off Ballots In San Mateo, Riverside

Dec 18, 2007
Proponents of placing land use ballot measures before voters in San Mateo and Riverside have lost separate appellate court rulings.

In the San Mateo case, the First District Court of Appeal upheld the decision of election officials to reject certain petition signatures, a decision that blocked a referendum on a mixed-use development from reaching the ballot.

In the Riverside case, the Fourth District Court of Appeal ruled that a City of Riverside lawsuit challenging the validity of a proposed ballot measure was not a Strategic Lawsuit Against Public Participation (SLAPP).

In late 2005, the City of San Mateo approved specific plan amendments for the Bay Meadows race track site. As amended, the plan calls for replacing the horse track and parking lot with approximately 1,200 housing units, 1.25 million square feet of commercial space and 150,000 square feet of retail uses (see CP&DR Local Watch, March 2006). Project opponents led by the group Friends of Bay Meadows circulated petitions on a referendum to force a vote on the specific plan amendments. In December 2005, Friends submitted 5,708 signatures on referendum petitions. City Clerk Norma Gomez and San Mateo County Chief Election Officer Warren Slocum, however, rejected 1,131 of the signatures, leaving project opponents 84 short of the required 4,661 signatures to qualify for the ballot.

Friends then went to court to challenge the rejection of about 100 signatures. Bay Meadows Land followed up with its own suit alleging the referendum petitions were invalid for technical reasons. A San Mateo County Superior Court judge ruled against Bay Meadows Land in its suit, but ruled for the city, Gomez and Slocum in the Friends' lawsuits.

Everyone appealed what they didn't like about the lower court ruling, and the First District consolidated the proceedings.

Friends argued that Gomez and Slocum erroneous invalidated five categories of signatures. Rather than plowing through all of the questioned signatures, however, the First District addressed only one type: 36 signatures for which someone other than the voter printed the voter's name and address below the signature. Such "assisted" signatures are permitted when the voter cannot personally print his or her name and address. Instead, someone else may print that information and a witness may sign to affirm that the voter did in fact sign the petition.

Elections officials rejected these 36 signatures because there was no witness signature next to each voter signature. Friends argued that the signature of the petition circulator on the petition was adequate, but the court agreed with elections officials that individual witness signatures were required.

"Having that information is patently relevant to the ability of election officers to verify the signature or mark of a voter who could not, for whatever reason, write out the information personally," Justice James Richman wrote for the unanimous three-judge panel. "No such witness signatures are present here — a defect, we hold, that is not cured by the circulator's verification of each section of the petition."

"If the Legislature intended to permit a circulator to endorse all ‘assisted' signatures, it could readily have done so," Richman continued. "But it did not … . The Legislature drew a clear distinction among ‘circulators,' ‘voters,' and ‘persons.'"

With those 36 signatures thrown out, there was no way Friends could reach the needed 4,661 valid signatures even if it won every other contested signature. Hence, the court said all other challenges, as well as the appeals of Gomez, Slocum and Bay Meadows Land, were moot and did not decide them.

Bay Meadows Land Company has since downsized the project to about 1,060 residential units and 850,000 square feet total of commercial and retail space. Final entitlements are still in process.

In Riverside, the city sued over a proposed initiative to limit the use of eminent domain. Referendum proponents contended the suit was a SLAPP. However, the Fourth District Court of Appeal ruled the city was challenging the initiative, not the citizens who presented the initiative.

The decision has been decried by a number of groups, including American Civil Liberties Union, which has asked the state Supreme Court to reverse the Fourth District. The Planning and Conservation League has asked the state high court at least to de-publish the Fourth District ruling so it may not be cited as precedent. Meanwhile, the League of California Cities and the California State Association of Counties are hoping the Fourth District ruling stands.

Only a few months after the U.S. Supreme Court's controversial ruling in Kelo v. City of New London, (2005) 545 U.S. 469, upholding the use of eminent domain for economic development purposes, Riverside resident Tom Stansbury and a group called Riversiders for Property Rights submitted to the city a proposed initiative for preparation of a ballot title and summary. The initiative sought to prohibit use of eminent domain for economic development purposes, and to prevent the transfer of property taken by eminent domain to a private party for 15 years.

In November 2005, the city sued Stansbury and the Riversiders. The city argued that the initiative was invalid because eminent domain is a matter of statewide concern not subject to local initiative, and because the measure was inconsistent and self-contradictory. Stansbury and the group responded that the city's lawsuit was a SLAPP that attacked their First Amendment right to petition. In March of 2006, Riverside County Judge E. Michael Kaiser granted the initiative proponents' anti-SLAPP motion and later awarded Stansbury and the Riversiders $14,000 in attorney's fees and costs.

The city appealed, and a unanimous three-judge panel of the Fourth District, Division Two, overturned Judge Kaiser.

The Fourth District noted that the appeal was moot because initiative proponents had failed to get enough signatures to qualify the initiative for the ballot. Nevertheless, the court decided the appeal "because it is a matter of broad public interest which is likely to recur."

The anti-SLAPP statute (Code of Civil Procedure § 425.16) "provides a mechanism for quickly identifying and eliminating civil actions filed for the purpose of chilling the exercise of free speech," according to the appellate court. Many early SLAPPs were filed by development proponents against people and groups who testified against a project.

Pivotal to the Fourth District's decision was the state Supreme Court ruling in City of Cotati v. Cashman, (2002) 29 Cal. 4th 69 (see CP&DR Legal Digest, October 2002). In that dispute, a group of mobile home park owners had sued the city in federal court over the constitutionality of a rent stabilization ordinance. The city then filed a lawsuit in state court seeking a judicial declaration on the ordinance's validity. The park owners argued that the city's state court suit was a SLAPP, but the state Supreme Court disagreed. What was at issue was not the park owners' ability to seek legal redress, but the validity of the rent control ordinance, the court concluded.

"The same rationale applies here," Justice Douglas Miller wrote for the Fourth District. "[T]he city was simply asking for guidance as to the constitutionality of the proposed initiative. Indeed, the city did nothing to limit respondents' activities in connection with the initiative, nor did the city, by its action, otherwise impact respondents' First Amendment rights."

The initiative proponents argued that only by challenging an initiative after voters pass it may the government contest a ballot measure's validity without interfering with the right to petition. But the Fourth District called this position "untenable" and cited City of San Diego v. Dunkl, (2001) 86 Cal.App.4th, 384, 389 (see CP&DR Legal Digest, April 2001): "It is well accepted that pre-election review of ballot measures is appropriate where the validity of a proposal is in serious question, and where the matter can be resolved as a matter of law before unnecessary expenditures of time and effort have been placed into a futile election campaign."

The Fourth District reversed Judge Kaiser's SLAPP ruling and his award of attorney's fees and costs.

First Case:
Friends of Bay Meadows v. City of San Mateo, No. A115503, 07 C.D.O.S. 14249, 2007 DJDAR 18340. Filed December 12, 2007.
The Lawyers:
For Friends: Stuart Flashman, (510) 652-5373.
For the city: Shawn Mason, city attorney, (650) 377-3305.
For the county chief election officer: Brenda Carlson, county counsel's office, (650) 363-4250.

Second Case:
City of Riverside v. Stansbury, No. E040125, 07 C.D.O.S. 12246, 2007 DJDAR 15728. Filed October 12, 2007.
The Lawyers:
For the city: Kevin Randolph, Best, Best & Krieger, (951) 686-1450.
For Stansbury: Richard Reed, (951) 779-04950.