Reagan v. City of Sausalito

The city contended that the legislative policy was laid down at some time prior to the adoption of resolution 1571 and that the latter is merely a reaffirmation of the city’s previously established policy to acquire Shelter Cove, and that therefore in this resolution the council was only exercising an administrative act in purchasing the property to carry out the policy. Unfortunately, as will hereinafter appear, the record discloses no resolution purporting to establish such policy, other than two which were repealed. The trial court so found.

The resolutions on which the city relies are 1540, adopted June 24, I960; 1542, adopted July 5, 1960; 1554, adopted September 6, 1960; and 1558, adopted October 18, 1960.

Resolution 1540 noted the policy of the city for the past 20 years of improvement, protection and maintenance of the city’s scenic beauty. It then resolved that the city purchase Shelter Cove upon certain terms and conditions. Resolution 1542 approved a form of contract to be executed by the city with the owner for the purchase of the property. July 22, I960, a referendum petition protesting the adoption of resolutions 1540 and 1542 was filed with the council. The council tabled it on the ground that the resolutions were not subject to referendum. Petitioner herein then filed a mandate proceeding in the superior court to obtain the repeal of the two resolutions. While that action was pending and on December 6, 1960, the day when resolution 1571 (the one in dispute) was adopted, resolution 1570 was adopted. It repealed both resolutions 1540 and 1542. The reason given for the repeal was that prior to their adoption the city had failed to submit the matter of the acquisition by the city of said Shelter Cove to the planning commission, as required by law.

Thus, the record discloses no action or declaration of policy in existence at the time of the adoption of resolution 1571, which could be held to be a legislative act relating to the policy of purchasing Shelter Cove. The declaration of policy in resolution 1571, upon which the determination to purchase Shelter Cove is based, is a legislative act and therefore the resolution is subject to referendum.

(b) Power to Purchase Land for Parks.

The city contends additionally that resolution 1571 is not subject to referendum because the power to determine the necessity and advisability of acquiring lands for public parks has been delegated to the city council and not to the people.

It is the city’s theory that the providing of parks and playgrounds in a municipality are matters of statewide interest and not matters of municipal concern, and that the Legislature has so decreed, in effect, by the enactment of the following statutes: Section 5303, Public Resources Code, provides that “The legislative body of any city” may by ordinance or other legislative act “determine what lands are necessary and proper to be acquired for public parks . . .” Section 40401, Government Code, provides that “the legislative body” may “ [i]n its discretion” acquire land for “squares, parks, playgrounds, and places within the city and improve, equip, and maintain them.”

The mere granting by the Legislature to the legislative body of a city of the discretionary power to determine what lands should be acquired for park purposes does not, and could not, prevent the application of the right of referendum, which is provided by the Constitution, as to legislative acts of a city’s legislative body. It is only in matters of statewide concern that the Legislature can be held to delegate

In Mefford v. City of Tulare (1951) 102 Cal.App.2d 919 [ 223 P.2d 847 ], it was contended that the people of that city had no power to enact an initiative ordinance requiring sub-dividers to furnish a profile map of their subdivisions showing certain required matters, as the ordinance was claimed to be contrary to the Subdivision Map Act (Bus. & Prof. Code §§ 11500-11628.) The court stated that it had examined the various provisions of that act and could find no limitation therein of the power of the electorate to enact the ordinance. Section 11525 of that act provided, “Control of the design and improvement of subdivisions is vested in the governing bodies of cities . . .’’If the city’s contention that the vesting of power to perform a certain legislative act in the governing body of a municipality barred the use of referendum to such act, then (as initiative and referendum are equal in the respects here considered) the court in Mefford would have been compelled to hold that the ordinance there considered could not be enacted by initiative. Yet, the court held that it could be so enacted.

Nor could the grant contained in sections 5303 and 40401, supra, be construed as a determination that the acquisition of parks by a city is a matter of statewide concern. Neither in those statutes nor otherwise, has the Legislature purported to preempt the field by any state regulations concerning municipal parks. Moreover, it has been determined that the establishment of public parks in a city is a municipal affair. In Mallon v. City of Long Beach (1955) 44 Cal.2d 199 [ 282 P.2d 481 ], the City of Long Beach intended to appropriate and expend for general municipal purposes the income derived from the sale of oil and gas produced from the tide and submerged lands granted Long Beach by the State of California. The court held that the state granted the lands in trust for the development of the state’s harbors, and that the use of the moneys derived from such lands for municipal purposes was improper as the moneys were state funds. It then pointed out what it considered as matters of municipal concern for which state moneys could not be expended, included in which were “public parks.”

In construing the Municipal Bond Act of 1901, in Oily of Oakland v. Thompson (1907) 151 Cal. 572 , 575 [ 91 P. 387 ],

Hopping v. Council of City of Richmond, supra, 170 Cal. 605 , held that a resolution of the city determining that the public interest of the city required that it should have a city hall, that it should be located on land offered for that purpose, and that the offer should be accepted, was a declaration of a public purpose and a provision for ways and means of its accomplishment and constituted legislative acts subject to referendum. Hill v. Board of Supervisors (1917) 176 Cal. 84 [ 167 P. 514 ], held that a resolution of a county board of supervisors declaring the necessity for and authorizing the . construction of a hall of records, and accepting plans and specifications for the erection of the same, was legislative in character and subject to referendum. Burdick v. City of San Diego (1938) 29 Cal.App.2d 565 [ 84 P.2d 1064 ], held that a resolution selecting, designating and accepting a site for a police station was a legislative act subject to referendum but that a later resolution calling for bids for the- construction thereof was not and was not subject to referendum. Beard v. City & County of San Francisco (1947) 79 Cal.App.2d 753 , 755 [ 180 P.2d 774 ], held that the establishment and operation of a city hospital is a municipal affair. Larsen v. City & County of San Francisco (1957) 152 Cal.App.2d 355 , 366 [ 313 P.2d 959 ], held offstreet parking facilities to be “purely .a municipal affair.” The city’s suggestion in our ease ■that people from outside a city use its parks would apply to a city’s offstreet parking facilities as well. The fact of such use does not make the acquisition and operation of those facilities a matter of statewide concern. Simpson v. Hite (1950) 36 Cal.2d 125 [ 222 P.2d 225 ], dealt with resolutions of the board of supervisors designating and acquiring a site for buildings to house municipal and superior courts. The court held that the state Legislature requiring the counties to provide buildings to house courts had declared the applicable legislative policy and therefore the act of providing a site and the construction of court buildings thereon was merely an administrative act carrying out that policy and hence the resolutions were not subject to referendum. The court distinguished Sopping, Sill and Burdick, supra, on the ground that “in none of those cases was the court purporting to deal with a situation such as the one at bar, where the legislative

By analogy, the acquisition of land for park purposes is as much a municipal affair as were the purposes set forth in the hereinbefore discussed cases. Actually the factual pattern is the same in all instances. They are all municipal affairs and of citywide interest, as the payment therefor comes out of the city’s annual revenue.

Cases cited by the city holding traffic matters in a municipality to be of statewide concern are not persuasive to show that the acquisition of parks by the city is a matter of statewide concern. Nor is the Oregon case of Monahan v. Funk (1931) 137 Ore. 580 [ 3 P.2d 778 ], holding that an ordinance to purchase land for a garbage crematory passed pursuant to an amendment to the city charter is not subject to referendum, in point. In Oregon to be subject to referendum an ordinance must be one which ‘‘relate[s] to subjects of a permanent or general character” (p. 779) and which “prescribes a rule of civil conduct” and is “universal in its application to the general public.” (P. 780.) California has no such requirement.

It should be noted that statutory provisions dealing with the constitutional power of referendum should be liberally construed in favor of the power. (Alexander, supra, p. 821; Dye v. Council of City of Compton (1947) 80 Cal.App.2d 486 , 491 [ 182 P.2d 623 ].)

2. Was the Referendum Premature?

The city rather inconsistently contends that the referendum proceedings were premature for the reason that resolution 1571 did not provide ways and means for the implementation of the policy declaration. This contention is entirely inconsistent with the city’s prior contention that the referendum was, in effect, too late, because, as only legislative acts are subject to referendum, the city contended that there had been such a prior legislative act. Actually, resolution

3. Resolution 1571 Not Void.

The city contends that resolution 1571 is void because adopted within one year of the repeal of resolutions 1540 and 1542, against which a petition.for referendum had been presented.

Section 4052, Elections Code, provides, where a referendum petition is filed against an ordinance, “If the legislative body repeals the ordinance or submits the ordinance to the voters” and the ordinance does not carry, “the ordinance shall not again he enacted by the legislative body for a period of one year ...” (Emphasis added.)

Resolution 1570 rescinding resolutions 1540 and 1542, gave as reason therefor that the matter had not first been submitted to the planning commission. Section 65551, Government Code, provides that a city which has adopted a master plan (Sausalito has) shall not acquire land for a park or other public ground until its location, purpose and extent have been submitted to and reported upon by the planning commission. This was not done. The city contends that therefore the resolutions were void, and hence there was a valid reason unconnected with the referendum filed against them, to repeal them. The city then says that resolution 1571 is essentially the same as resolution 1540 and having been enacted within one year of the repeal of the latter is void, and referendum will not lie against resolution 1571 because void measures are not subject to referendum. (5 McQuillin, Municipal Corporations (3d ed.) § 16.54, p. 252; see also Myers v. Stringham (1925) 195 Cal. 672 [ 235 P. 448 ] ; Hurst v. City of Burlingame (1929) 207 Cal. 134 [ 277 P. 308 ].)

We deem it unnecessary to determine whether the one year inhibition in section 4052 applies where the council states a valid reason for rescinding the attacked resolution rather than merely the reason that a referendum petition has been filed against it, for the reason that section 4052 does

Resolution 1540 after referring to a long existing policy of protecting the city’s scenic beauty and improving its “unexcelled marine view” states that Sausalito Foundation, a nonprofit private corporation, has prepared to undertake the acquisition of Shelter Cove, and after it acquires title thereto the city will purchase the property in the manner and for the amounts set forth. The city further agrees to lease to the foundation for a term of 50 years, subject to termination after 29-1/2 years, a certain portion of the property for waterfront recreational uses. No rental shall be required, except that two-thirds of any net income derived from • the ■leased premises shall be paid to the city. Resolution 1542 approves the form of contract between the city and Sausalito Foundation. Resolution 1571 eliminates all mention of Sausalito Foundation and of any lease to it and is limited to a declaration of a policy of the city to “acquire out of said City’s annual revenues” Shelter Cove.

The first two resolutions tie the matter of purchasing Shelter Cove td the leasing of a portion of it on a rent-free basis. Neither resolution 1540 nor 1542 makes any reference to the proposed purchase of Shelter Cove being ‘ ‘ for acquatie [sic] park, playground, open space and public ground purposes,” as does resolution 1571. Resolution 1540 gives as the purpose of the purchase, if it can be held to state a purpose, the protection of the city’s scenic beauty and the maintenance of the marine view, plus the use of a portion of the property by the foundation for recreational purposes on a rent-free basis. Resolution 1571 is limited to establishing the policy of acquiring Shelter Cove for park, etc. purposes. Thus, a comparison of resolutions 1540 and 1542 with resoltition 1571 shows them to be substantially dissimilar. As said in Gilbert v. Ashley, supra, 93 Cal.App.2d 414 ,- 415-416: “ ‘The council may, however, deal further with the subject matter of the suspended ordinance, by enacting an ordináñeb essentially different from' the ordinance protested against, avoiding, perhaps, the objections made to the first ordinance. If this be done, not in bad faith, and not with intent to evade the effect of the referendum petition, the second ordinance should not be held invalid for this cause.

We find nothing in the language of resolution 1571 establishing bad faith, and as said in Gilbert, supra, page 416, “every presumption is in favor of its validity.”

The order is affirmed.

Sullivan, J., and Molinari, J., concurred.