Untitled California Attorney General Opinion

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
XAVIER BECERRA
Attorney General
_________________________
:
OPINION : No. 17-702
:
of : April 27, 2018
:
XAVIER BECERRA :
Attorney General :
:
CATHERINE BIDART :
Deputy Attorney General :
:
________________________________________________________________________
THE HONORABLE ASSEMBLY MEMBER ANNA M. CABALLERO has
requested an opinion on the following question:
Does the power of referendum apply to a resolution by the City of Hollister
approving the execution of an agreement to sell real property for development, pursuant to
an approved long-range property management plan for disposing a dissolved
redevelopment agency’s property?
CONCLUSION
The City of Hollister’s resolution approving the execution of an agreement to sell
real property for development, pursuant to an approved plan for disposing a dissolved
redevelopment agency’s property, is not subject to referendum.
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ANALYSIS
Background
The question here arises from the Legislature’s 2011 dissolution of redevelopment
agencies and redirection of their assets to fund core local governmental services.1 For
decades, the Legislature authorized local governments to create such agencies to redevelop
areas of blight under the Community Redevelopment Law.2 When an area was
redeveloped and its property values increased, the resulting increase in property tax
revenue was attributed to the redevelopment, and the increased revenue (known as “tax
increment”) was used to fund the agency.3
In 2011, however, facing a fiscal crisis, the Legislature dissolved redevelopment
agencies and instituted a process for “successor agencies”4 to expeditiously wind down the
1
See 2011 Cal. Stat., 1st Ex. Sess. 2011-2012, ch. 5 (eff. Jun. 29, 2011); see also 2012
Cal. Stat., ch. 26 (eff. June 27, 2012). Our prior opinions arising from the dissolution of
redevelopment agencies include 99 Ops.Cal.Atty.Gen. 67 (2016) and 97
Ops.Cal.Atty.Gen. 75 (2014).
2
Health & Saf. Code, §§ 33000 et seq.; see 1963 Cal. Stat., ch. 1812, pp. 3677 et seq.
(reorganizing Community Redevelopment Law); 1951 Cal. Stat., ch. 710, § 1, pp. 1922 et
seq. (renaming and codifying Community Redevelopment Act as Community
Redevelopment Law in Health and Safety Code sections 33000 et seq.); 1945 Cal. Stat.,
ch. 1326, pp. 2478 et seq. (enacting Community Redevelopment Act); see also
Redevelopment Agency v. City of Berkeley (1978) 80 Cal. App. 3d 158, 169 (explaining
main purpose of “Community Redevelopment Law was ‘to expand the supply of low- and
moderate-income housing, to expand employment opportunities for jobless,
underemployed, and low-income persons, and to provide an environment for the social,
economic, and psychological growth and well being of all citizens’ . . . through the
elimination of blight,” quoting Health and Safety Code section 33071 and citing id.
sections 33030, 33035-33039).
3
Cal. Const., art. XVI, § 16; Health & Saf. Code, §§ 33670 et seq.; California
Redevelopment Assn. v. Matosantos (2011) 53 Cal. 4th 231, 246-247; Redevelopment
Agency v. County of San Bernardino (1978) 21 Cal. 3d 255, 259.
4
Health & Saf. Code, §§ 34171, subd. (j) (“‘Successor agency’ means the successor
entity to the former redevelopment agency as described in Section 34173”), 34173, subd.
(b) (“Except for those provisions of the Community Redevelopment Law that are repealed,
restricted, or revised pursuant to the act adding this part, all authority, rights, powers,
duties, and obligations previously vested with the former redevelopment agencies, under
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former redevelopment agencies’ affairs and to redirect tax revenues to local core
government services.5 These winding-down activities take place under the direction of an
oversight board, generally comprised of representatives for various entities that receive
local property tax revenue.6 The process requires a successor agency to submit a long-
range property management plan to its oversight board for approval, and then to the state’s
Department of Finance for its approval.7
the Community Redevelopment Law, are hereby vested in the successor agencies”).
5
See Health & Saf. Code, § 34177, subd. (h); California Redevelopment Assn. v.
Matosantos, supra, 53 Cal.4th at pp. 241, 251, 262; Macy v. City of Fontana (2016) 244
Cal. App. 4th 1421, 1431-1432; see also 12 Witkin, Summary of California Law (11th ed.
2017) Real Property, § 869 (“The county auditor-controllers for each county must
determine the amount of property taxes that would have been allocated to the
redevelopment agencies had they not been dissolved ([Health & Saf. Code, § 34182, subd.
(c)]) and must reallocate those funds, through the Redevelopment Property Tax Trust Fund,
to local agencies and school entities and to successor agencies for making payments on
debts ([Health & Saf. Code, § 34183])”).
For further background on the dissolution of redevelopment agencies, see Cuenca v.
Cohen (2017) 8 Cal.App.5th 200, 210-212; 8 Miller & Starr (4th ed. 2017 supp.) California
Real Estate, § 30:1. We note that, to a limited extent, redevelopment has been reauthorized.
For an overview of the relevant legislation, see 8 Miller & Starr, supra, § 30:2
(summarizing post-dissolution legislation that authorizes local governments to:
(1) remediate blighted property, without using tax-increment funding [Health & Saf. Code,
§§ 25403-25403.8], (2) enhance infrastructure using funding that includes tax increment
from consenting taxing agencies, but not schools [Gov. Code, §§ 53398.50-53398.88],
(3) promote economic development using public funds [Gov. Code, §§ 52200-52203], and
(4) form community revitalization authorities that create community revitalization plans
and address unemployment, crime, infrastructure, and affordable housing, using funding
that includes tax increment from consenting taxing agencies, but not schools [Gov. Code,
§§ 62000-62208]).
6
The oversight board is a seven-member board of appointees who “have fiduciary
responsibilities to holders of enforceable obligations and the taxing entities that benefit
from distributions of property tax and other revenues.” (Health and Saf. Code, § 34179,
subd. (i); id. subds. (a), (b) & (j) [prescribing composition of oversight board].) The
oversight board’s duties include, among other things, directing the successor agency to
dispose of the dissolved redevelopment agency’s assets and property, as specified. (Health
& Saf. Code, § 34181.)
7
Health & Saf. Code, § 34191.5, subd. (b).
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We are informed that the City of Hollister passed Resolution 2017-139 on June 5, 2017,
authorizing its city manager to enter into a Disposition and Development Agreement for
the sale and development of real property (known as the “400 Block property”), which
would implement the long-range plan8 approved by the oversight board and by the
Department of Finance.9 The parties to the agreement include the City, Del Curto
Brothers Group, and the Community Foundation for San Benito County.10 The resolution
8
The plan directs the use of “a disposition and development agreement or development
agreement as a tool to assure that disposition of the 400 Block property facilitates
development of the site as a keystone property in Downtown Hollister to support economic
development.” (Resolution No. 2014-02 OB [attaching City of Hollister Long Range
Property Management Plan, filed October 3, 2013, amended January 2, 2014, p. 32,
available at http://www.dof.ca.gov/Programs/Redevelopment/Long_Range_Property_
Management/LRPMPC_Plans/documents/Hollister_LRPMP.pdf [as of March 26, 2018].)
The plan directs the successor agency to negotiate with the City a first-option agreement
to buy the property within an 18-month period. (Ibid.) The goal of that agreement is to
allow non-profit activities to continue on the property until a commercial or mixed-use
development agreement is negotiated. (Ibid.) The plan further provides that, if the
negotiation with the City does not result in a property transfer to the City, the successor
agency itself must issue a request for qualifications to enter into a development agreement
for a mixed-use or all-commercial building of 30,000 to 40,000 square feet, designed to
conform to specified guidelines, with proceeds of the sale to be distributed and used as
provided by the redevelopment dissolution law. (Id., pp. 32-33.)
9
See City of Hollister Resolution 2017-139, June 5, 2017; Resolution No. 2014-02 OB,
supra, pp. 4-5 [oversight board’s approval of disposing properties as set forth in plan];
Department of Finance Letter to City of Hollister Successor Agency, Feb. 21, 2014,
http://www.dof.ca.gov/Programs/Redevelopment/Long_Range_Property_Management/L
RPMPC_Letters/documents/Hollister_LRPMP_Letter.pdf [as of April 6, 2018]
(Department of Finance’s approval of disposing properties as set forth in plan).
We received informal input, from a law firm retained by the referendum proponents,
asserting that the City acted improperly by not announcing it was acting as the successor
agency, a separate public entity (see Health & Saf. Code, § 34173, subd. (g)), when it
passed the resolution (the City Council members also serve as the successor agency). An
alleged impropriety, however, is not challengeable by referendum. (See Memorial
Hospitals Assn. v. Randol (1995) 38 Cal. App. 4th 1300, 1311 [“Simply put, unlawful action
is addressed in the courts, not in the voting booth”].) Because an alleged impropriety in
passing the resolution does not speak to the availability of referendum, we decline to
address it further.
10
City of Hollister Resolution 2017-139, supra, p. 4.
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recites several preceding resolutions, including ones that authorized a request for
proposals; accepted the Del Curto Brothers’ proposal in partnership with Community
Foundation for San Benito County to construct a mixed-use development; approved the
proposal as conforming to the long-range plan; and authorized an exclusive negotiating
agreement.11
We have been asked whether Hollister’s Resolution 2017-139 is subject to
referendum. To determine the answer to this question, we must look to the principles
governing the power of referendum, discussed below.
Referendum Power
The power of referendum refers to an electorate’s authority to reject a recent
enactment by a legislative body. Referendum allows voters to veto statutes and local
ordinances and resolutions before they become effective.12 If a referendum petition
challenging an ordinance or resolution is timely filed and certified to be sufficient, its
effective date is suspended and the enacting legislative body must reconsider the ordinance
or resolution.13 If the body does not repeal the act, it must be submitted to the voters.14
The act then does not go into effect unless a majority votes in its favor.15 If the voters
instead reject the act, or if the legislative body repeals the act without submitting it to the
voters, the same act cannot be reenacted for at least one year from the date of its rejection
or repeal.16
11
Id. at pp. 2-3.
12
City of Morgan Hill v. Bushey (2017) 12 Cal.App.5th 34, 39; Yesson v. San Francisco
Municipal Transportation Agency (2014) 224 Cal. App. 4th 108, 122 (“any legislative act
may be . . . subject to referendum, regardless of whether that act is denominated an
‘ordinance’ or ‘resolution,’” quoting DeVita v. County of Napa (1995) 9 Cal. 4th 763, 787,
fn. 9).
13
Elec. Code, §§ 9237, 9239; Midway Orchards v. County of Butte (1990) 220
Cal. App. 3d 765, 774, 776, 779 (noting that statute governing referendum procedure of
ordinance is silent on resolution, and determining such procedure shall also apply to
referendum of resolution).
14
Elec. Code, § 9241.
15
Elec. Code, § 9241.
16
Elec. Code, § 9241.
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Although the California Constitution vests legislative power in the Legislature, “the
people reserve to themselves the powers of initiative and referendum.”17 The Constitution
expressly recognizes that referendum power extends to voters at the level of a city and
county,18 which “is generally co-extensive with the legislative power of the local governing
body.”19 The legislative decisions of a city council or board of supervisors are thus
presumed to be subject to referendum unless there is a showing of contrary legislative
intent.20
Still, there are some limits on the referendum power.21 For instance, the
Constitution provides that the power does not apply to “urgency statutes, statutes calling
elections, and statutes providing for tax levies or appropriations for usual current expenses
of the State.”22 Further, the power does not apply to administrative acts, only to legislative
ones.23 Courts therefore look to whether an act is “legislative” or “administrative” to
determine whether referendum applies.24 The “legislative-administrative dichotomy
reflects a determination to balance the ideal of direct legislation by the people against the
17
Cal. Const., art. IV, § 1. The initiative power is identical in purpose and function to
referendum power, however, an “initiative is drafted by its proponents and is the very law
whose enactment is sought, whereas a referendum seeks to set aside a law that has been
drafted by others.” (Lin v. City of Pleasanton (2009) 176 Cal. App. 4th 408, 418-419.)
18
Cal. Const. art. II, § 11, subd. (a).
City of Morgan Hill v. Bushey, supra, 12 Cal.App.5th at p. 40, quoting DeVita v.
19
County of Napa, supra, 9 Cal.4th at pp. 775-776.
20
See DeVita v. County of Napa, supra, 9 Cal.4th at pp. 775-776; Geiger v. Board of
Supervisors (1957) 48 Cal. 2d 832, 839; Fishman v. City of Palo Alto (1978) 86 Cal. App. 3d
506, 509.
21
55 Ops.Cal.Atty.Gen. 383, 385-388 (1972) (explaining limits on scope of local
initiative and referendum powers).
22
Cal. Const., art. II, § 9, subd. (a); Voters for Responsible Retirement v. Board of
Supervisors (1994) 8 Cal. 4th 765, 778 (constitutional limits on state referendum power
also apply to local referendum power).
23
San Bruno Committee for Economic Justice v. City of San Bruno (2017) 15
Cal.App.5th 524, 530, review denied (Jan. 10, 2018); Redevelopment Agency v. City of
Berkeley, supra, 80 Cal.App.3d at p. 167 [“It is plain that only ordinances of a municipality
which involve an exercise of the legislative prerogative are subject to the initiative and
referendum”].
24
See Voters for Responsible Retirement v. Board of Supervisors, supra, 8 Cal.4th at
pp. 778-779.
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practical necessity of freeing municipal governments from time-consuming and costly
referenda on merely administrative matters.”25 “The plausible rationale for this rule
espoused in numerous cases is that to allow the referendum or initiative to be invoked to
annul or delay the executive or administrative conduct would destroy the efficient
administration of the business affairs of a city or municipality.”26
How then to identify whether a given act is legislative (and therefore subject to
referendum) or administrative (and therefore not subject to referendum)? Courts have
provided the following guidance:
Legislative acts generally are those which declare a public purpose and make
provisions for the ways and means of its accomplishment. Administrative
acts, on the other hand, are those which are necessary to carry out the
legislative policies and purposes already declared by the legislative body. . . .
[T]he classic and often quoted test [is]: “(T)he power to be exercised is
legislative in its nature if it prescribes a new policy or plan; whereas, it is
administrative in its nature if it merely pursues a plan already adopted by the
legislative body itself, or some power superior to it.” [Citation omitted.] The
test is not precise, and there is some inconsistency of approach between the
published decisions.27
Additionally, courts have identified two instances that indicate the Legislature has
withdrawn referendum power:28
[F]irst, when there is a ‘definite indication’ by the Legislature that it intends
to preempt the discretion of a local legislative body to legislate; second, when
25
Fishman v. City of Palo Alto, supra, 86 Cal.App.3d at p. 509.
26
San Bruno Committee for Economic Justice v. City of San Bruno, supra, 15
Cal.App.5th at p. 530, quoting Lincoln Property Co. No. 41, Inc. v. Law (1975) 45
Cal. App. 3d 230, 234.
27
Fishman v. City of Palo Alto, supra, 86 Cal.App.3d at p. 509; see San Bruno
Committee for Economic Justice v. City of San Bruno, supra, 15 Cal.App.5th at p. 530
(summarizing legislative-administrative test); Pettye v. City And County of San Francisco
(2004) 118 Cal. App. 4th 233, 240-243 (explaining in detail development of legislative-
administrative jurisprudence); see also City of San Diego v. Dunkl (2001) 86 Cal. App. 4th
384, 402 (stating difficulty in some cases of distinguishing between legislative and
administrative acts).
28
See DeVita v. County of Napa, supra, 9 Cal.4th at p. 776.
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the Legislature rather than preempt local legislative action has instead sought
to delegate legislative power so exclusively to a local governing body as to
indicate its intent to preclude the citizens’ otherwise coextensive right of
referendum.29
In the first instance, referendum power is deemed withdrawn when the Legislature removes
the decision-making authority of a local legislative body over a particular subject.30 In the
second instance, referendum power is deemed to have been withdrawn where the
Legislature has specifically and exclusively delegated decision-making over a matter of
statewide concern to a local legislative body.31 Both circumstances may be conceptualized
as a means of identifying an administrative matter.32
Finally, in determining whether referendum power exists as to a particular matter,
“it is settled that consideration must also be given to the consequences of applying the
rule.”33 For example, “[i]f essential governmental functions would be seriously impaired
by the referendum process, the courts, in construing the applicable constitutional and
statutory provisions, will assume that no such result was intended.”34
Legislative-Administrative Analysis
As we explain in more detail below, we conclude that Hollister’s Resolution 2017-
139 is administrative rather than legislative in character, and therefore not subject to
referendum.
The Legislature Designated Successor Agencies to Dispose of Dissolved
Redevelopment Agencies’ Assets
“Where the Legislature has enacted a statewide policy and has assigned to a
29
Empire Waste Management v. Town of Windsor (1998) 67 Cal. App. 4th 714, 718,
citing DeVita v. County of Napa, supra, 9 Cal. 4th 763, 776.
30
City of Morgan Hill v. Bushey, supra, 12 Cal.App.5th at p. 40 (“referendum power
[cannot] be used in areas in which the local legislative body’s discretion [is] largely
preempted by statutory mandate,” brackets in original, quoting DeVita v. County of Napa,
supra, 9 Cal.4th at pp. 775-776).
31
Voters for Responsible Retirement v. Board of Supervisors, supra, 8 Cal.4th at p. 779.
32
See Committee of Seven Thousand v. Superior Court (1988) 45 Cal. 3d 491, 511.
33
Geiger v. Board of Supervisors, supra, 48 Cal.2d at p. 839.
34
Ibid.
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particular local body the duty to implement that policy, the Legislature thereby places
implementation of the statewide policy beyond the reach of initiative and referendum.”35
We think this captures what the Legislature did in assigning a successor agency, following
approval by its oversight board and the Department of Finance, the duty to dispose of a
dissolved redevelopment agency’s property.
The redevelopment dissolution law requires a successor agency to prepare a long-
range property management plan that includes an inventory of the dissolved redevelopment
agency’s property including specific information, such as previous development proposals
for each property.36 After the successor agency’s long-range plan is approved by its
oversight board and the Department of Finance, the plan governs the disposition of the
dissolved agency’s property.37 The Legislature provided in clear terms that “the plan shall
govern, and supersede all other provisions relating to, the disposition and use of the real
property assets of the former redevelopment agency.”38
The redevelopment dissolution law leaves no room for voter input on a settled long-
range property plan. An approved plan may be amended, but only once, and only if the
Department of Finance approved it before January 1, 2016, and the amendment related to
retaining parking facilities and lots for governmental use.39
Furthermore, the City’s resolution occurred at the tail end of the statutorily
prescribed process for disposing of a dissolved redevelopment agency’s property. The
successor agency’s plan is the product of that process, and the City’s resolution follows a
string of decisions to implement that plan, further illustrating that the resolution is an
administrative act implementing an established legislative policy and therefore not subject
to referendum.40
A City Implementing a Long-Range Property Management Plan Acts as an
Administrative Agent of the State
Our conclusion that the resolution is not subject to referendum finds additional
35
Memorial Hospitals Assn. v. Randol, supra, 38 Cal.App.4th at p. 1313.
36
Health & Saf. Code, § 34191.5, subds. (b) & (c).
37
Health & Saf. Code, § 34191.3, subd. (a).
38
Health & Saf. Code, § 34191.3, subd. (a).
39
Health & Saf. Code, § 34191.3, subd. (b).
40
See San Bruno Committee for Economic Justice v. City of San Bruno, supra, 15
Cal.App.5th at p. 534.
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support by analogizing a city’s implementation of a successor agency’s long-range
property management plan to sell and develop property, to a redevelopment agency’s
implementation of a redevelopment plan.
The implementation of a redevelopment plan was never subject to referendum
because local agencies acting in redevelopment matters were acting as administrative arms
of the state.41 We believe it is appropriate also to characterize local agencies as
administrative arms of the state when they act to implement redevelopment wind-up
matters. As such, it would follow that Hollister’s resolution to sell and dispose of property
as provided in the successor agency’s approved long-range plan is not subject to
referendum either.
The Potential Consequences of a Referendum Here Indicate that It Cannot Apply
That the referendum power cannot apply here is perhaps best demonstrated by its
potential consequences. If Hollister’s resolution were subject to referendum, the
disposition and development of the property pursuant to the approved long-range plan
could potentially never happen. The electorate could indefinitely prevent the sale of the
property for development (as set forth in the approved long-range plan) by rejecting every
attempt by Hollister to implement the plan. That would completely thwart the
redevelopment dissolution law’s purposes to dispose of redevelopment agencies’ property
expeditiously in order to fund core government services. It would also conflict with the
statutory requirement that the dissolved agencies’ property be disposed of as provided in a
long-range property management plan approved by a successor agency’s oversight board
and the Department of Finance.
In short, referendum would frustrate the essential goals of the redevelopment
dissolution law.42
41
PR/JSM Rivara LLC v. Community Redevelopment Agency of City of Los Angeles
(2009) 180 Cal. App. 4th 1475, 1483; Gibbs v. City of Napa (1976) 59 Cal. App. 3d 148, 154
(“When a municipal council, as here, declares a need for the redevelopment agency to
function, the agency thereby becomes a state agency when acting in redevelopment
matters. The council functions as an administrative arm of the state because it pursues a
state concern and effectuates a state legislative policy. The functioning of such an agency
is beyond the reach of, or control by, a municipal initiative or referendum election”);
Andrews v. City of San Bernardino (1959) 175 Cal. App. 2d 459, 460-463 (city council acts
as administrative arm of state in adopting resolution for redevelopment project under
Community Redevelopment Law).
42
Proponents of the referendum have suggested to us that the resolution is legislative
because Hollister could have chosen a different way to implement the plan. We are not
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Conclusion
For the foregoing reasons, we conclude that the City’s resolution is not subject to
referendum.
*****
persuaded, because even administrative acts can involve the exercise of some limited
discretion, and the limited amount of discretion used to implement the plan is insufficient
to characterize the resolution as a legislative act.
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