A Referendum Petition does not have to Contain Documents that are only Referred to in a Challenged Ordinance

By Glen Hansen

In Lin v. City of Pleasanton, 2009 Cal. App. LEXIS 1170, the California Court of Appeal for the First Appellate District held that, barring extreme circumstances,Elections Code section 9238, subdivision (b)(2), does not require a referendum petition to include documents that were neither attached to the challenged ordinance, nor incorporated by reference.

In Lin, the City of Pleasanton enacted an ordinance approving a proposed 51-unit residential development on land owned by plaintiffs Jennifer and Frederic Lin. The ordinance that approved the development plan contained two exhibits, each of which was specifically incorporated by reference into the ordinance itself. The development plan that was approved by the ordinance was referred to in that ordinance and in its exhibits, but it was not attached or incorporated by reference. Real party in interest Kay Ayala, a former city councilperson and member of an unincorporated association operating under the name “Save Pleasanton's Hills,” gathered the number of voter signatures necessary to hold a referendum on the ordinance. The referendum petition contained (1) the text of the ordinance; (2) the two exhibits that were attached to and incorporated by reference into that ordinance; and (3) an exhibit to one of the two exhibits incorporated by reference into the ordinance. However, the referendum petition did not contain a copy of the development plan that was approved by the ordinance, and referred to in the ordinance.

The Lins filed a petition for writ of mandate directing the city clerk to declare the referendum petition invalid.  Among other things, the Lins alleged that the referendum petition violated Elections Code section 9238, subdivision (b)(2), because it did not contain a copy of the development plan that was adopted by ordinance, and therefore did not contain the full “text of the ordinance” as that section requires. Ayala filed a demurrer to the petition arguing that it failed to state a cause of action. The trial court granted the petition for the writ of mandate. The trial court found that section 9238 had been violated because the referendum petition should have contained at least a portion of the development plan approved by the ordinance. The Court of Appeal disagreed with that conclusion, reversed the grant of mandate relief and remanded with directions to deny the writ.

The Court of Appeal held that, because the referendum petition advised voters of the “precise language of the ordinance being challenged and its attached exhibits,” the referendum petition complied with section 9238. The Court explained:

The development plan was not included in the text of that ordinance, was not attached as an exhibit, and was not incorporated by reference.  It may well be the case that an informed voter would prefer to review portions of the development plan before determining whether to sign a referendum petition that could ultimately result in that plan being set aside.  Section 9238, subdivision (b)(2), requires the “text” of the ordinance being challenged, not the inclusion of additional information a conscientious voter might want to know before signing the petition.

The Court concluded that its decision strikes a reasonable balance between a citizens’s right to circulate a referendum petition and the voters’ interest in being adequately apprised of the issue presented.

Glen C. Hansen is a senior associate at Abbott & Kindermann, LLP.  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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