By Daniel S. Cucchi

Hernandez v. Town of Apple Valley (2017) 7 Cal.App.5th 194

In 2011, the Town of Apple Valley (the “Town”) circulated a local initiative called the “Wal-Mart Initiative Measure,” or in some cases the “Wal-Mart Supercenter Ballot Initiative,” which was subsequently declared null and void. Two years later, the Town noticed a city council agenda item for a “Wal-Mart Initiative Measure” with a recommended action to “provide direction to staff.”  Petitioner did not attend the council meeting believing the matter was follow-up activities related to the 2011 measure.  He later learned that the Town council had adopted two resolutions for a new voter initiative for a proposed 30-acre commercial development that included a new Wal-Mart Supercenter, as well as a Memorandum of Understanding (“MOU”) to accept a gift from Wal-Mart to pay for the special election. After filing a request with the Town to cure the alleged agenda defect, which the Town rejected, Petitioner filed suit arguing the Town violated the Ralph M. Brown Act and that the initiative measure itself violated California Constitution, article II, section 12’s prohibition against specifically naming any individual or corporation to “perform any function or to have any power or duty….”  The trial court granted petitioner’s Motion for Summary Judgment on both claims, finding the MOU and the initiative were void and invalid.  The Town and Wal-Mart appealed.

The appellate court first considered the Brown Act claim, finding that while the resolutions calling for the special election were properly noticed, the Town’s adoption of the MOU was not, creating a fatal flaw in the approval of all of the resolutions. The Town argued that the agenda packet included all of the relevant information regarding the proposed initiative, but the court was not persuaded. While choosing not to rule on the question of whether information in an agenda packet can be used to bring an agency into compliance with the Brown Act, it noted that the record showed that the MOU resolution was added to the agenda item after release of the agenda.  This was fatal, the court reasoned, because it was reasonable to conclude the MOU was “a major factor in the decision to send the matter to the electorate.”  Thus, since the MOU resolution was improperly noticed, the resolutions to place the initiative measure on the ballot were null and void as a result.

Anticipating the likelihood that the initiative measure would likely return to the ballot, the court next turned to the question of whether the measure violated the California Constitution. Petitioner argued that although Wal-Mart was not specifically named in the initiative text, the ballot measure materials clearly established that approval would grant powers to the owner and developer, Wal-Mart.  The court disagreed.  It held that the initiative was properly drafted, even though it ultimately benefitted Wal-Mart, because the text of the initiative did not specifically name Wal-Mart.  It reasoned that the use of the words “developer” and “owner” in the initiative meant that if Wal-Mart were to sell the property, it would retain no superior rights in the property over the subsequent owner.  Thus, Wal-Mart’s current beneficial position was granted by ownership of the subject property and not by the initiative itself.          

Daniel S. Cucchi is an associate at Abbott & Kindermann, Inc.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or 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.