Monday, October 28, 2019

Denham v. City of Richmond (Cal. Ct. App. - Oct. 25, 2019)

This makes sense to me.  Times two.

The general plan of a City allows future residential development of various hillside locations.  But the residents of that City decide that this would be unattractive.  So they propose and adopt an initiative that (generally speaking) stops residential development in this area, and leaves it agricultural and (in essence) attractive.

So far so good.  The people have that right.  (Assuming it's not a taking, etc.)

Here's the problem:

The initiative's a messy one.  It's not perfectly written.  As one might expect with citizen-initiated proposals, which don't go through the same type of substantive legal review as measures adopted by the City pursuant to its usual (byzantine) planning process.

So while the initiative is clear in a the overwhelming majority of its respects, it accidentally failed to amend various other provisions of the City's general plan in which the hillsides at issue were listed as amendable to residential development.  It just forgot about (or overlooked) these.

Which in turn means that, after the adoption of the initiative, the City's laws were internally inconsistent.  One big chunk of them (added by the initiative) said you can't build houses on the hillside.  But a residual chunk of them -- which predate the initiative, but were unamended by it -- say that you can build houses on the hillside.

So what to do?

The trial court says that the internal inconsistency means that the initiative is void, so it falls.  But the Court of Appeal disagrees.  There's not much precedent precisely on point, since these sorts of things (thankfully) don't happen all the time.  But in a creative and, I think, common sense opinion, Justice Tucher writes an opinion that remands and that directs the City to resolve the inconsistency.  One way or the other.

But how can you do that?  After all, the initiative was adopted by the people.  The municipality can't amend it.  So how can the City even attempt to do what the Court of Appeal has ordered it to do -- or at least do so short of simply capitulating to the initiative and repealing the inconsistent preexisting provisions of the general plan?

Good point.  But the Court of Appeal has an answer.  It says that, if it chooses, the City might elect to submit another proposed initiative to its residents that resolves the existing inconsistency.  And if the residents vote in favor, boom, problem resolved.

Which is true.  Mind you, that sort of gives the opponents of the initiative "two bites at the apple" in opposing the restriction on hillside development; first, when the initiative was initially proposed (and ultimately adopted), and second, when this new City-sponsored initiative comes out.  So that's a little unfair.  But, truthfully, that's the fault of the people who wrote the initiative.  Write a better one next time that doesn't forget to amend other inconsistent parts of the City's plan and you won't have such a problem.  One, essentially, of your own creation.

What the Court of Appeal leaves unstated, of course, is what happens if the City proposes such a "rectifying" initiative and it fails to pass.  But the answer is nonetheless fairly clear.  At that point, the City will pretty much be compelled to repeal the inconsistent provisions of the City's pre-initiative(s) plan.  Essentially letting the initiative prevail over the inconsistency.

Which makes sense.  The people voted.  Sure, the authors of the thing screwed up a bit.  But the intent of the thing was clear.  Unless the people decide something different (by adopting a new initiative), their obvious desire to prevent hillside development should prevail.  And the City should get rid of the inconsistent provisions of its existing Code.

A sensible and equitable result.  Regardless, IMHO, of whether you're for or against the residential development of hillsides.  There's a mode of rational legal analysis that's independent of results.  And it's properly and acutely displayed here.  I suspect the Court of Appeal would have done the exact same thing if the initiative would have inconsistently opened up (rather than closed) the hillside to residential development.

And entirely properly so.