Court upholds 1999 Election That Overturned ‘Prezoning' for Project
An appellate court has upheld a voters' decision on a City of Pleasanton referendum that effectively blocked an 89-unit subdivision.
In upholding the election, the unanimous three-judge panel of the First District, Division One, rejected the developer's argument that the election resulted in zoning that was inconsistent with the city's general plan and, therefore, should be overturned. Instead, the court ruled that the election only maintained the status quo and was a valid exercise of the referendum authority.
In January 1999, the Pleasanton City Council approved an ordinance "prezoning" the 46-acre site in question to "PUD: Low Density Residential." The site is just outside the city limits but within the Pleasanton sphere of influence. The city approved the DeSilva Group's plan for an 89-unit subdivision, as well as a $1 million "amenity fee" to be paid by the developer.
Project opponents then collected enough signatures to force a referendum on the prezoning. In a June 1999 special election, Measure P failed by a 60-to-40 ratio (see CP&DR, July 1999). The vote overturned the City Council's prezoning decision, leaving the 46 acres with "unincorporated territory" zoning.
The developer filed a lawsuit eight days after the election, arguing that the defeat of Measure P created an inconsistency with the city's general plan, which designated the site for low-density residential development. Alameda County Superior Court Judge Henry Needham ruled against the developer, and the appellate court upheld the decision.
A city can enact zoning ordinances for property outside the city limits, but inside its sphere of influence, Justice William Stein wrote. The electorate has the same legislative authority, including "the decision to prezone — or the decision not to prezone." However, all zoning decisions, — whether made by the legislative body or by the electorate — must be consistent with the relevant general plan, he wrote.
The PUD: Low Density Residential zoning was consistent with the Pleasanton general plan. "It does not follow, however, that failing to prezone the property PUD: Low Density Residential creates an inconsistency with the general plan," Stein wrote.
Courts have held that when a property has been zoned for use that matches the general plan designation, the electorate cannot use a referendum to rezone the property to a use inconsistent with the general plan, Stein noted. He cited City of Irvine v. Irvine Citizens Against Overdevelopment, (1994) 25 Cal.App.4th 868 (see CP&DR Legal Digest, July 1994), and deBottari v. City Council, (1985) 171 Ca.App.3d, 1204. The Pleasanton developer argued that "restoring" the property's zoning as "unincorporated territory" conflicted with the general plan because it prevented housing development — much as the court-invalidated referendum in City of Irvine would have restored a property's zoning as "development reserve" and blocked a development project.
The First District, however, said the cases are different. "In the present case," Stein wrote, "the city's general plan, while recognizing that at some point the property should be developed for low density residential usage, does not call for its immediate annexation and development. Unlike the properties at issue in City of Irvine and deBottari, the property never has been zoned in a manner that permits the usage contemplated by the general plan, and unlike the initiatives in those cases, the defeat of Measure P did not rezone the property to preclude low density residential housing."
"As Measure P did nothing more than cause the property to continue as unincorporated territory, and as the city's general plan does not require annexation and prezoning of unincorporated territory, there is no inconsistency between Measure P and the city's general plan," Stein wrote.
The court also rejected the argument that the referendum arbitrarily precluded a certain type of housing. The court said Measure P simply maintained the status quo.
Finally, the court was not persuaded by the argument that the prezoning was not subject to referendum because it was an adjudicatory — not a legislative — decision that only carried out the general plan. "[O]ur Supreme Court has held, without equivocation, that zoning ordinances are legislative acts," Stein wrote.
James A. Merritt v. City of Pleasanton, No. A089834, 01 C.D.O.S. 4683. Filed May 11, 2001. Ordered published June 7, 2001.
For Merritt: David Lanferman, Sheppard, Mullin, Richter & Hampton, (415) 434-9100.
For the city: Michael Roush, city attorney, (925) 931-5015.