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Associated Home Builders of the Greater Eastbay v. Livermore, City of

Citation: 7 ELR 20155
No. No. S.F. 23222, 557 P.2d 473/18 Cal. 3d 582, (Cal., 12/17/1976)

The California Supreme Court upholds the city's building moratorium ordinance against challenges that it was illegally enacted by initiative, is unconstitutionally vague, and infringes on the right to travel, but remands for a determination at trial of whether the ordinance's exclusionary nature adversely affects the surrounding region. Livermore's ordinance, enacted by initiative in 1972, forbids issuance of new residential building permits until educational, sewage, and water supply standards are met. Overruling Hurst v. City of Burlingame, 207 Cal. 134 (1929), which struck down a city's zoning by initiative, the court favorably reviews cases criticizing Hurst and declares that the initiative process does not violate constitutional or statutory due process notice and hearing provisions that are required for zoning measures enacted by city councils. The initiative right has independent constitutional guarantees that supersede zoning law requirements. The court also finds that Livermore's ordinance indicates with sufficient specificity what standards administrative agencies must use in determining whether the educational, sewerage, and water supply requirements of the ordinance have been met. The ordinance survives constitutional scrutiny by incorporating these specific standards from other resolutions and enactments. Finally, plaintiff has failed to demonstrate that the ordinance illegally burdens a constitutionally protected right to travel. The ordinance does not ban population growth and arguably bears a reasonable relation to the general welfare. The ordinance survives constitutional attack under this standard because a standard of strict scrutiny is not applicable to an ordinance that does not on its face exclude persons by reason of wealth or race. Nor does the ordinance exceed Livermore's police powers. Such ordinances are presumed constitutional, and that presumption is not defeated here. In view of the ordinance's effects outside Livermore, the case is remanded to determine whether the ordinance adversely and significantly affects the metropolitan region. In its inquiry, the trial court should forecast the effect and duration of the restriction, identify the competing interests affected, and determine whether the ordinance reasonably accommodates those interests.

Judge Clark, in dissent, argues that where state law prescribes the steps in enacting local ordinances, local initiatives cannot overcome state requirements. He further argues that the conflict between the zoning and initiative statutes must be resolved in favor of the validity of the general zoning laws and their imposition of administrative duties prior to enactment of zoning ordinances.

Judge Mosk, also dissenting, argues that growth limitations may properly be enacted by communities in special environments, such as resorts, but not by ordinary suburban communities. He agrees with the majority's overruling Hurst, but argues that a city exceeds its police powers by excluding new residents. Noting that the city offers no timetable for upgrading its services to admit new residents, Judge Mosk states that adequate housing is a serious constitutional concern that compels a court to strike down a community's total exclusion of people, even while recognizing the validity of genuine conservationist efforts.

Counsel for Plaintiff
Robert C. Burnstein
414 13th St.
Oakland CA 94612
(415) 836-4400

Counsel for Defendant
Maurice Engel
24301 Southland Drive
Hayward CA 94545
(415) 783-3020

Joined by Wright, C.J., McComb, Sullivan & Richardson, JJ.; Clark, J., dissents; Mosk, J., dissents.