Growth Prohibitions Revisited: California Supreme Court Requires 'Regional Welfare' Considerations in Local Zoning

Grasping the nettle that has recently troubled other courts, the California Supreme Court on December 17, 1976 ambitiously set out the factors that should govern judicial review of controlled-growth ordinances in a decision upholding a city's residential building moratorium. Associated Home Builders of the Greater Eastbay, Inc. v. City of Livermore¹ involved a challenge to an initiative ordinance enacted by the voters of Livermore which prohibits issuance of residential building permits until local educational, sewage disposal, and water supply facilities comply with certain standards. The ordinance, which will totally prohibit development in the short run, is a logical extension of other recently litigated municipal ordinances that have allowed "phased" or sequential growth. Controlled growth plans have come under substantial scrutiny and attack in recent years, but to date no court has been willing to elaborate the proper scope of judicial review of such ordinances when they are based on a community's desire to protect its rural setting from the environmental depredations of increasing urbanization. Livermore may, by providing for consideration of the equitable housing responsibilities of particular municipalities in the context of regional needs, pave the way for more rational environmental planning in the land use arena by regional and state authorities.

Background

Like many other previously rural cities in northern California, Livermore was and is facing an upsurge in population. The city residents' response to this difficulty was drastic. In 1972, they enacted, by popular initiative, an ordinance that prohibited issuance of residential building permits until "satisfactory solutions" to three perceived problems could be obtained. The standards set forth in the ordinance for the solutions included (1) "no double sessions" or "overcrowded classrooms," (2) sewage treatment facilities that would meet the standards set by the Regional Water Quality Board, and (3) "no [7 ELR 10065] rationing of water with respect to human consumption or irrigation." The ordinance's preamble somewhat disingenuously notes that one of its purposes is to control air pollution, although none of the above criteria seem to have any immediate relation to air pollution problems.

An association of contractors and land subdividers obtained an injunction in a California trial court against enforcement of the ordinance on the grounds that the initiative failed to conform to procedural requirements applicable to municipal zoning decisions and that it was unconstitutionally vague for failing to designate the authorities who would determine whether its standards had been fulfilled. In defending the injunction on the city's appeal, plaintiff relied on a half-century old but severely criticized decision striking down California voter zoning initiatives and, perhaps imprudently, advanced the theory (not relied on by the trial court) that Livermore's ordinance infringed on the constitutionally protected right to travel by effectively barring immigration into the city.

Initiative Zoning and Vagueness

The California Constitution guarantees the exercise of initiative and referendum powers to the electors, subject to procedures specified by the legislature.² It also grants to "general law" cities such as Livermore the power to zone so long as the zoning regulations do not conflict with general laws.³ California law requires certain notice and hearing procedures as a precondition of municipal zoning.⁴ In 1929, the California Supreme Court determined in Hurst v. City of Burlingame⁵ that, since city councils could not zone without following these procedures, the voters could not adopt zoning ordinances by initiative, which, by definition, lacked such procedural devices. Before the court in Livermore could address the substantive issues raised by Livermore's growth control ordinance, it had to dispose of the technical questions involved in overruling Hurst. And, although the court's disposition rested on California law, its reasoning is applicable to other states that grant the initiative power to their electors.

Noting that the procedural requirements which govern city council action do not generally apply to voter initiatives, the court declared that Hurst manufactured a conflict between state zoning statutes and the initiative law by equating the two functions. In fact, the court said, the people retain ultimate legislative authority by virtue of their constitutional grant of initiative power. Thus, zoning procedural requirements cannot abrogate constitutionally protected initiative rights.

Justice Clark, the only justice who dissented from the court's overruling Hurst, pointed out that the court's conclusion could allow circumvention of the court's previous holding that the California Environmental Quality Act's (CEQA)⁶ environmental impact report requirement applies to enactment of municipal zoning ordinances. In No Oil, Inc. v. City of Los Angeles,⁷ the court declared that the Los Angeles city council had to issue a written determination as to whether an impact report must be prepared for its designation by zoning of oil drilling districts near a state beach. To the extent that this administrative requirement applies only to city council action, it may in fact now be inapplicable to voter initiatives in California. Perhaps in its eagerness to overrule Hurst, the majority did not consider this possible implication of its decision. Notwithstanding this possible loss of procedural protection for environmental values in California zoning decisions, the substantive judicial review of future zoning ordinances, both authorized and demonstrated by the court in Livermore, provides ample safeguards for ensuring consideration of environmental factors in municipal zoning decisions.

Another issue that the court had to dispose of before getting on to the land-use merits of the case was the allegation that the ordinance was unconstitutionally vague. The court answered this assertion by looking at the duties of the agencies mentioned in the ordinance and the general scheme of Livermore's government. Concluding that these agencies — the School District Board and the Regional Water Quality Board — in fact carried out specific duties relating to overcrowded classrooms and water supply, the court held that these "objective facts" were incorporated by reference in the initiative and thus survived the vagueness challenge.

Growth Controls versus the Right to Travel

Plaintiff argued before the supreme court that the trial court's decision ought to be affirmed on the ground that Livermore's ordinance unconstitutionally forbade immigration into the city without a compelling state interest justifying the exclusion. The court, however, declined to rule definitively on this issue in view of the limited record before it. Both parties had brought the case up on pleadings and had yet to introduce any evidence. This decision may have been a tactical mistake by plaintiff, because the court was evidently cautious about employing a strict standard of judicial review without facts on which to rule.In one sense, the court benefitted from the narrow nature of plaintiff's claim, which did not encompass allegations of exclusion on the basis of race or wealth. It could thus distinguish recent cases and commentary dealing with exclusionary zoning in which cities had allowed expensive single-family residential construction but had prohibited low-income housing, especially the landmark New Jersey decision in Southern Burlington County NAACP v. Township of Mt. Laurel.⁸

Noting that Livermore's ordinance neither imposed a permanent prohibition on new construction nor distinguished between residential construction of nonresidents and residents, the court stated the [7 ELR 10066] traditional standard of judicial review for zoning ordinances that has survived from the United States Supreme Court's Village of Euclid v. Ambler Realty Co.⁹ decision:

[T]he land use restriction withstands constitutional attack if it is fairly debatable that the restriction in fact bears a reasonable relationship to the general welfare.¹⁰

Under this test, Livermore's ordinance imposed only an indirect burden on the right to travel and thus could stand. To hold otherwise, the court ruled, would be to turn the traditional presumption in favor of legislative enactments on its head, cause the wholesale rejection of zoning ordinances, and jeopardize municipal and regional planning. The court drew support for this conclusion from the Ninth Circuit's decision in Construction Industry Association of Sonoma County v. City of Petaluma,¹¹ which overturned the trial court's holding that a municipal ordinance limiting construction to 500 units per year violated the right to travel.

Judicial Review Under the "Regional Welfare" Test

The court did not stop with the bare repetition of the traditional judicial review test noted above. Plaintiff had also challenged Livermore's ordinance as violating due process by exceeding the scope of the city's police power. In answer, the court articulated the question that has only recently been posed by courts, legislators, and commentators: in evaluating an ordinance's relationship to the "general welfare," the relevant query is whose welfare the ordinance serves. The court then described this inquiry more specifically:

[T]he proper constitutional test is one which inquires whether the ordinance reasonably relates to the welfare of those whom it significantly affects. If its impact is limited to the city boundaries, the inquiry may be limited accordingly; if, as alleged here, the ordinance may strongly influence the supply and distribution of housing for an entire metropolitan region, judicial inquiry must consider the welfare of that region.¹²

This test recognizes an institutional face that has long been submerged in discussions about the proper role of localities in land use planning: local authorities administer land-use powers that are delegated by the state government and must therefore take into account the superlocal implications of their decisions. Mt. Laurel was the first judicial decision to recognize this rule, but it did so in the context of discriminatory housing. Livermore has now extended the principle to local land-use decisions that are less flagrantly discriminatory and more solidly based on legitimate environmental goals. Thus, just as municipalities under Mt. Laurel cannot divorce themselves from regional housing needs, under Livermore they cannot ignore the downstream environmental effects of their preservationist zoning policies. This fact may create enough planning difficulties at the local level that state governments will be forced to reassume the land-use decision authority they have for so long relegated to local government.

As with the developer's challenge under the right to travel allegation, the court declined to apply its regional welfare test to Livermore's ordinance since the necessary evidence in the record was lacking. Rather, it set out an innovative three-part test by which the trial court on remand can, as a matter of fact, determine whether the ordinance reasonably relates to the regional welfare. The trial court must first forecast the probable effect and duration of the restriction, including the public service shortfall, the amount of construction that authorities have undertaken to alleviate the shortfall, and the expected completion date for this construction. Although not mentioned by the court, the current drought in Northern California may preclude for a long time the possibility of no rationing.¹³ Thus, Livermore's ordinance may in fact become a total prohibition on housing.

The trial court's second task is to identify the competing interests affected by the restriction. The court took explicit notice of a conflict between "the environmental protectionists and the egalitarian humanists." It is not immediately apparent that the plaintiff in Livermore represents "egalitarian humanist" values and can therefore qualify to raise such claims.¹⁴ In any event, how exactly the trial court will balance, or even take evidence on, these competing values remains to be seen, but it is certain that the lower court cannot avoid close scrutiny of the substance of the ordinance under this standard.

Finally, the trial court must determine whether the ordinance, in light of its impact, represents a reasonable accommodation of these competing interests. Significantly, although the Livermore opinion intimated that the trial court can in some instances defer to the municipality's determination of this accommodation, the court decreed that the relationship between the ordinance and the regional welfare must be "real and substantial" rather than merely a fancy. Thus, while itself using a very lenient standard of review regarding the ordinance's facial constitutionality, the court has burdened trial courts with a much more searching standard in their factual review of growth control ordinance's constitutionality. This means that, although growth control decisions are granteda presumption of validity, the extent of that presumption is limited. Rather than forcing the local government to justify its housing decisions at the outset, as the Mt. Laurel court held, the Livermore decision requires that, when a challenger presents a prima facie case that an ordinance does not further the regional welfare, the municipality must back up its zoning decision with evidence. Clearly the boundaries of this modified presumption will be delineated on a case-by-case basis. It is equally clear that, contrary to Justice Clark's argument, the trial court's review under this [7 ELR 10067] standard can encompass the determination of whether a municipality has met its environmental assessment duties under CEQA.

Aside from answering Justice Clark's objection regarding municipalities' CEQA duties, this latter test defuses the criticism of Justice Mosk, also dissenting, who argued that a more rational system would be to compel new residents to contribute their proportionate share of the cost of new educational, sewage, and water services. However appealing this notion may be from an economist's marginal cost approach, it hardly seems likely to produce more equitable housing supply in the suburbs. Since the cost of new facilities must necessarily exceed the cost of maintaining existing facilities, forcing new residents to shoulder these disproportionate costs would restrict entry in the suburbs to those more affluent than the current residents. The court's test, on the other hand, requires the reviewing court to consider the total range of the city's response to increased housing demand, from an equal opportunity as well as an environmental perspective.

Conclusion

The Livermore decision is a curious mix of traditional and innovative, strict standards of judicial review of local zoning determinations aimed at controlling growth.On the one hand, the court deferred to the legislative judgment of the citizenry under the initiative power, much like the United States Supreme Court did recently in City of Eastlake v. Forest City Enterprises,¹⁵ in which the Court upheld rezoning by referendum in the face of federal constitutional challenges. On the other, the court plainly does not expect trial courts to defer readily to speculative or attenuated legislative rationales for enacting growth control ordinances.

This requirement of close scrutiny of such ordinances promises to be the most important product of the Livermore decision.The criteria articulated by the court are applicable across the country and can serve as a benchmark for other courts faced with similar controversies. Perhaps more significantly, judicially forcing due consideration of regional perspectives into local land-use planning will create a context in which state-level reexamination of local zoning powers can more easily occur and bring about much-needed reform in this area of environmental law.

1. 18 Cal. 3d 582, 557 P.2d 473, 135 Cal. Rptr. 41, 7 ELR 20155 (1976).

2. Cal. Const. art. IV, § 25.

3. Cal. Const. art XI, § 11.

4. Cal. Gov't Code §§ 65853-65857.

5. 207 Cal. 134, 277 P. 308 (1929).

6. Cal. Pub. Res. Code § 21050 et seq., ELR 43010.

n7 Cal. 3d 68, 529 P.2d 66, 118 Cal. Rptr. 34, 5 ELR 20166 (1974).

8. 67 N.J. 151, 336 A.2d 713 (1975), appeal dismissed, 423 U.S. 803 (1975). Mt. Laurel's rule that local communities must contribute their "fair share" of regional housing needs was recently elaborated in Oakwood at Madison, Inc. v. Township of Madison, No. A-80/81, Sept. Term 1975 (N.J. Sup. Ct. Jan. 26, 1977).

9. 272 U.S. 365 (1926).

10. Associated Home Builders of the Great Eastbay, Inc. v. City of Livermore, 7 ELR 20155, 20162 (Cal. Sup. Ct. 1976) (emphasis supplied).

11. 522 F.2d 897, 5 ELR 20519 (9th Cir. 1975), rev'g 375 F. Supp. 574, 4 ELR 20454 (N.D. Cal. 1974).

12. Associated Home Builders of the Greater Eastbay, Inc. v. City of Livermore, 7 ELR 20155, 20162 (Cal. Sup. Ct. 1976).

13. See Johnston, Brown Urged to Impose Statewide Water Rationing, L.A. Times, Feb. 12, 1977, at II-1, col. 1.

14. Similarly, plaintiff in Construction Industry Ass'n of Sonoma County v. City of Petaluma, 522 F.2d 897, 5 ELR 20519 (9th Cir. 1975), lacked standing to raise the right to travel claims of nonresidents allegedly excluded by Petaluma's growth control ordinance.

15. 426 U.S. 668 (June 21, 1976).