Full Disclosure- Reference Documents Must be Attached to Referendum Petition to be Legally Sufficient Under State Elections Code

By Nathan Jones and Leslie Z. Walker

In May of 2006, the San Francisco Board of Supervisors approved an ordinance “Adopting the redevelopment plan for the Bayview Hunters Point Redevelopment Project” (“Ordinance”). The ordinance increased the size of redevelopment activity in Bayview-Hunter’s Point from 147 acres to 1,500 acres. Many in the community viewed the redevelopment project as an attempt to gentrify the area aimed at dispossessing working-class residents in the area.  The case of Defend Bayview Hunters Point Committee v. City and County of San Francisco (2008) 167 Cal.App.4th 846, illustrates a pitfall for organizers who fail to attach reference materials of substance to a petition challenging a local redevelopment ordinance.

In response to the ordinance passage, a community group, Defend Bayview Hunter’s Point Committee (“DBHPC”), began circulating a petition to collect enough signatures to place the ordinance in front of San Francisco voters via referendum. Pursuant to California Community Redevelopment Law, an ordinance adopting or amending a redevelopment plan is subject to referendum if a petition containing signatures of at least 10 percent of the entire vote cast within the City is submitted to the responsible clerk within 90 days of the plan’s adoption.  (Health & Saf. Code § 33378, subd. (b).)

After receiving sufficient signatures, DBHPC presented the referendum petition to the Board of Supervisors clerk’s office. The clerk refused to process the petition. The clerk claimed that the ordinance did not comply with section 9238 of the California Elections Code, which requires that all petitions must attach or include the text of the redevelopment plan that was subject to the referendum petition. The clerk asserted that the failure to include the plan with the petition prevented prospective signers from understanding the substance of either the ordinance or the referendum overturning it. DBHPC filed a petition for writ of mandate to suspend the operation of the redevelopment plan ordinance. This appeal to the Court of Appeal, First Appellate District, followed the trial court’s refusal to compel a writ of mandate.

The appellate court analyzed cases discussing the text attachment provision contained in Elections Code, section 9238, the stated reason for the clerk’s denial. After discussing what is generally required to be included in a signature petition, the court found that DBHPC’s failure to include the 57 page redevelopment plan in the petition documentation, even though directly referenced in the City’s own ordinance, was fatal:

The fundamental purpose of the statutory “text” requirement—that voters considering a referendum petition be fully informed about the substance of the challenged measure-compels the conclusion that the petition in this case did not comply with Elections Code section 9238 because the focus and substance of the challenged measure was found in the text of the Plan which, although incorporated by reference in the ordinance, was not attached to or included in the ordinance.

The court then dismissed DBHPC’s claims that it had substantially complied with the law. Since the redevelopment plan was the direct subject matter of the referendum to overturn it, omission of the text of the plan entirely frustrated the purpose of the text requirements contained in the Elections Code.

This is a case of caution for any group attempting to overturn local government decisions. While formulating a petition drive, make sure that the petition documents incorporate the text of the affected law or ordinance, including material or relevant text that is the subject of the petition drive.

Leslie Walker is an associate at Abbott & Kindermann, LLP and Nathan Jones is a law clerk with the firm. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

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