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HomeMy WebLinkAbout1985-12-10 Election (5396)Journal PER Wedneaday, March 4, 1987 Appeals court to reconsider slope ruling By DAVE MADDEN The state Court of Appeals has had second thoughts about its rul- ing on a South San Francisco voter referendum that challenges San Bruno Mountain development. The appeals court gave notice last week that it will reconsider the Jan. 28 decision, which-upheld a lower court's ruling that .the re4erendum was illegal. Altorneys on both sides of the issue said the action was highly unusual. However, they also a~reed that it does not necessa~. ily mean a change of mind amortg the court's three justices, who split 2-1 in their first ruling. "From what I know, it's very rare," said San Mateo attorney Ann Broadwell, who represents Citizens for Our Mountain, which organized the referendum. "We can only wait and see if it means a different decision will result.' But I'm optimistic," she added. Attorney Howal'd EIIman, who represents VisitaCion Associates, owner of much of the mountain, was confident the rUling would stand. "The odds on getting a reversal of the decision are very, very long," said EIIman, suggesting the court may have decided that some aspect of its first opinion deserved further consideration. The referendum, which.would have required voter approval of plans for expanding, graditt~, for a south' slope project, wa~l~aded f_o~r a special election unfil~lound to' ~:'~itl~a1:'i~ a ~eptember lggS' ruling b3r-Sa-n Marco 'Courrr~ Superior Court...Judge Thomas.. Jenkins. ~ Jenkins concluded t~t adtli- tional grading into 25 ac~ of land previously protected as habitat of the endangered Mission Blue but- terfly was an "administrative" rather than *'legislative" matter and thus not subject to voter review. App. ellate Justices James Scott and Robert Merrill concurred, .while Justice Clinton White dis: sented. W.. W. Dean & Associates' south slope project, known as Terrabay, has been stalled by litigation since 1983. The San Mateo builder has plans for 721homes, a 400-room hotel, offices, commercial uses and various amenities,including an outdoor pool, a daycare center and a new fire station. Citizens for Our Mountain organized the referendum after Dean won city approval to stab- lize three potential landslide areas by building concrete retaining walls up to 200 feet high and a series of graded benches extend- ing up the mountain as much as 500 feet. The group contends that the grading significantly alters the pre- vious development plan and will scar the hillsides without neces- sarily correcting potential land- slide problems. Sherman Eubanks, president of Visitacion Associates, expressed dismay at the appeals court's action, but said it won't stop Terrabay. "The mountain isn't going away and neither is this project. Ulti- mately, the project will proceed despite efforts to block its devel- opment,'' said Eubanks. I'Udge throws out south slope election A Superior Court Judge Friday threw out the special San Bruno Mountain development issue elec- tion scheduled for Dec. '10 in South San Francisco, ihdicating the City Council had no jurisdiction to call it. Judge Thomas' M. Jenkins, after listening to arguments for only about 30 minutes in his Redwood City courtroom, ruled immediately "prohibiting the holding of the special election." Opponents of W.W. Dean & As- sociates' Terrabay development on the south Slope argued that a "benching" amendment submitted by Dean earlier this year to curb the possibility of landslides was a change of such "huge magnitude" that it constituted a legislative act and thus was~subject tb a SOuth San Francfs~ ~referef~dU m election. Jenkins, ftt~,ever,.said the re- cent Habita~ Conservation plan amendment that calls for the benching and additional encroach- ments into the rare and endan- gered butterfly habitat protected by the plan "was anticipated by the origina|agreement," and therefore administrative in nature and not s.ubject to election. Ann Broadwell, attDrney repre- senting Citizens for Our Mountain, the group that circulated petitions callki$ tor,th~ elect[on, said an ap- peal of Jenkins' decision would be made. Jenkins acknowledged that all he was concerned about was wheth er the HCP amendment was an ad- ministrative or legislative act. If it was administrative,, or merely car- rying out some of the terms of the original agreement, the City Coun- cil's Sept. 11 action setting the election was inappropriate. In his ruling, which'he said he was making immediately because of the election date and the possi- bility of appeal, Jenkins sided with John Hoffman, attorney represent- ing Visitacion Associates, landown- ers of the south slope, and Dean. The amendment to the HCP, Hoffman argued, was not an amendment to the general-Plan, the specific .plan,or evet~ a'~ t~zor~ lng plan for the Terrabay multi-use development..,!n fact, he said, the amend~nent was implementing ac- tion already approved. Jenkins' ruling supported the contention of South San Francisco City Attorney Robert K. Rogers Jr., who advised the City Council it need not set the election. However, th& council, after learning them were 2,932 valid sig. natures on the petitions, voted3-2 to have a special election Dec. 10. On Oct. 6, r1981, South City had an- other south slope special election, and at that one, voters asked the council to proceed with the pro- ject. Dean proposes 700 housing units in five neighborhoods, a 40-room hotel, office buildings, restaurants, a recreation center, a 'ire station, a day-care center, tennis courts, an outdoor pool and a commercial center for the south slope. The amendment to the original HCP was necessary because the mountainside benching requires an additional encroachment into the 2,300-acre conservation area for the Mission Blue butterfly, a rare and endangered species, and the Callippe Silverspot, a rare but- terfly but not off cially endangered. Developers will contribute $60,000 aanually, to conservation [rograms for both butterflies, and U~.~ Nii~"Circuit court of Ap. peals in May said the butterflies will be better off with -.he develop- ment coupled by the habitat con- servation area than if there were no development at all. The south slope HCP was the first national test of the 1982 fed- eral Endangered Species Act that allows for development to co-exist with endangered species habitats if provisions ar~ '.n~l~.., to insure the OFFICE OF THE COUNTY CL~RK-RECORDER BOARD OF SUPERVISORS and Administrative Clerk of the Superior Court ANNA G. ESHOO  ~ : TOM NOLAN ; 'M/ILLIAM J. SCHUMACHER MARVIN CHURCH , ~,. ?r~{[CQUELINE SPEIER COUNTY CLERK-RECORDER !!~ i ~ ~' t JOHN M. WARD CLERK DIVISION COUNTY OF SAN MA E0, .., HALL OF JUSTICE AND RECORDS REDWOOD CITY · CALIF~IA~3-~9~": :' (415) 363-4711 October 3 I, 1985 Peter H. Goldsmith, Esq. Heller, Ehrman, White & McAuliffe 44 Montgomery Street San Francisco, CA 94104 Dear Mr. Goldsmith: Re: W. W. Dean & Associates and Visitacion Associates v. City of South San Francisco, et al. Civil Action No. 300837 We have received your letter of October 29, t985 requesting a copy of the Referendum Petition with all of the signatures supporting that petition. The petition, of course, would be in the possession of the South San Francisco City Clerk. We would like to call your attention to Election Code 3756 and Government Code 6253.5. Government Code 6253.5 reads in part as follows: "- - - refer- endum - - - petitions - - - shall not be deemed to be public records and shall not be open to inspection except by the public officer - - -" If we can be of further assistance, please let us know. MC:rv cc.l~'on. Barbara Battaya, City Clerk City of South San Francisco Sincerely, Original Signecl by Marvin Churcla Marvin Church County Clerk-Recorder TO: SUBJECT: FROM: ~TY OF SOUTH SAN FRANCIS~ INTER-OFFICE MEMORANDUM Date October 30, 1985 City Clerk, Barbara Battaya County Clerk, Marvin Church South Slope Referendum Election City Manager, C. Walter Birkelo COPIES TO: Sequoia Pacific Systems Corp. City Attorney Mayor Haffey This memorandum is to forward instruction from the South San Francisco City Council relative to the proposed special election on December 10, 1985. Pursuant to Judge Jenkins order, the City Council agrees to take no further steps to hold the special election and you are specifically directed by the City Council to incure no added expenditures of City funds for that purpose. Sincerely, C. Walter Birkelo City Manager CWB: eg Attachment AS/SS 205 (8/84) 5M C£~'l i'~AL RE. rgOR[]~ ~ITY OF SOUTH SAN FRANCL~'-O INTER.OFFICE MEMORANDUM Date October 30, 1985 Honorable City Council, TO: City Manager and City Clerk W.W. Dean and Associates, et al v. City of S%T]~jEO-l,:South San Francisco, et al, Case No. 300837 FI~OM: City Attorney This memorandum will inform you that I have accepted service of the below listed documents on behalf of the City, the City Council and the City Clerk: 1. Peremptory Writ of Mandate 2. Notice of Entry of Order Order Determining that Writ of Mandate Shall Issue and that Judgment and Writ of Mandate Are Not Stayed by Appeal Please note that the Court has ordered the City, the City Council and the City Clerk to take no action to hold the Special Referendum election pre- viously scheduled for December 10, 1985 and to make no expenditures of funds on said election. In accordance with a request by Petitioners' attorneys, the Court also ordered that, pending an appeal on this matter, the status quo should be preserved as related to said election and that no appeal of the matter shall operate as a stay of the judgment, or of the issuance or enforcement of the writ of mandate, absent action by the Court of Appeal. Please note, also, that I am informed that the Court of Appeal has refused to issue a Supersedeas Writ staying the foregoing action by Judge Jenkins. Hence, the Writ of Mandate as issued by the Judge is effective and must be obeyed. I~ll file a return on the writ which states that the City, the City Council a~d/the City Clerk have ceased preparation for the election and will take no ~c~on to hold it and will not encumber any further public monies for that pur- po~eunless and until a higher court orders otherwise. i~/~ttK. gers, Jr.' . RKR:mm CF_.NTRAL RF_CORD,~ FILE NO.: ..~...3-¢~-- AS/SS 205 ! 4 ? $ 9 i0 11 12 13 14 16 17 20 21 22 23 24 25 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN MATEO W. W. DEAN & ASSOCIATES, a California corporation; VISITACION ASSOCIATES, a joint venture, Petitioners, CITY OF SOUTH SAN FRANCISCO, a municipal corporation; CITY COUNCIL OF THE CITY OF SOUTH SAN FRANCISCO; BARBARA A. BATTAYA, in her capacity as City Clerk of the City of South San Francisco, Respondents. SOUTH SAN FRANCISCO CITIZENS FOR OUR MOUNTAIN, Intervenor. NO. 300837 PEREMPTORY WRIT OF~/MA~DATE.~ 1 2 3 4 6 8 9 !0 11 12 13 14 15 16 1'7 18 19 20 21 22 23 24 25 26 27 28 TO: CITY OF SOUTH SAN FRANCISCO, CITY COUNCIL OF THE CITY OF SOUTH SAN FRANCISCO, AND BARBARA A. BATTAYA AS CITY CLERK OF THE CITY OF SOUTH SAN FRANCISCO, RESPONDENTS: After hearing and determination by this Court that you have failed to perform your legal duties with respect to a special referendum election on December 10, 1985, and are to take no action to hold said referendum election and to make no expenditures of public funds on said election, and judgment having been entered in this proceeding ordering that a peremptory writ of mandate issue under the seal of this Court, THEREFORE, you are commanded to take no action to hold said referendum election and to make no expenditures of public funds on said election. You are further commanded to serve and file a written return to this writ on or before November l, 1985. WITNESS: The Honorable Thomas M. Jenkins, Judge of the Superior Court. Dated' October ~,-1985 Marvin Church Clerk of the Superior Court By 2 CENTRAL RECORE~S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 WILLIAM W. STERLING PETER H. GOLDSMITH HELLER, EHRMAN, WHITE & McAULIFFE 44 Montgomery Street, Suite 3000 San Francisco, CA 94104 Telephone: (415) 772-6000 Attorneys for Petitioner W. W. Dean & Associates HOWARD N. ELLMAN JOHN D. HOFFMAN ELLMAN, BURKE & CASSIDY A Professional Corporation One Ecker Building, Suite 200 San Francisco, CA 94105 Telephone: (415) 777-2727 Attorneys for Petitioner Visitacion Associates IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN MATEO W. W. DEAN & ASSOCIATES, a California corporation; VISITACION ASSOCIATES, a joint venture, Petitioners, Ve CITY OF SOUTH SAN FRANCISCO, a municipal corporation; CITY COUNCIL OF THE CITY OF SOUTH SAN FRANCISCO; BARBARA A. BATTAYA, in her capacity as City Clerk Of The City Of South San Francisco, Respondents. SOUTH SAN FRANCISCO CITIZENS FOR OUR MOUNTAIN, Intervenor. No. 300837 NOTICE OF ENTRY OF ORDER 1 2 3 4 5 7 8 9 10 ].2 ].3 ]4 15 ].6 18 19 20 2]. 22 23 24 25 26 TO RESPONDENTS AND INTERVENOR ~ND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT on October 28, 1985, the Court made and entered herein its Order Determining That Writ Of Mandate Shall Issue And That Judgment And Writ Of Mandate Are Not Stayed By Appeal, a copy of which is attached hereto as Exhibit A. Dated: October 29, 1985 HELLER, EHRMAN, WHITE & McAULIFFE ELLMAN, BURKE & CASSIDY /J~;~t~I). Hof fman/ ~ ~Attorneys for W. W. Dean & Associates and Visitacion Associates, Petitioners CEnTrAL RECORDS 1 3 $ 8 9 10 ll 13 14 15 16 17 18 19 ~0 23 OC! 28 FILED ALTA DUNLcp IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN MATEO W. W. DEAN & ASSOCIATES, a California corporation; VISITACION ASSOCIATES, a joint venture, Petitioners, CITY OF SOUTH SAN FRANCISCO, a municipal corporation; CITY COUNCIL OF THE CITY OF SOUTH SAN FRANCISCO; BARBARA A. BATTAYA, ) in her capacity as City Clerk Of ) The City Of South San Francisco, ) Respondents. SOUTH SAN FRANCISCO CITIZENS FOR OUR MOUNTAIN, Intervenor. No. 300837 ORDER DETERMINING THAT WRIT OF MANDATE SHALL ISSUE AND THAT JUDGMENT AND WRIT OF MANDATE ARE NOT STAYED BY APPEAL ! 2 6 ? 8 9 10 11 12 13 14 15 16 1'7 18 19 20 21 22 23 24 25 26 2'/ :28 The Court having determined, after hearing, that Judgment for petitioners shall be entered herein and that a peremptory writ of mandate shall issue under the seal of this Court, commanding respondents City of South San Francisco, City Council of the City of South San Francisco, and Barbara A. Battaya, as the City Clerk of the City of South San Francisco, to take no action to hold said special election, and to make no expenditures of public funds on said election; Intervenor South San Francisco Citizens for our Mountain having advised the Court through its counsel that it intends to Ifile a notice of appeal promptly upon entry of judgment; Intervenor and i Petitioners ~ourt letters of their respective counsel having requested the by dated October 21, 1985 to determine whether the Court's judgment and writ of mandate will be stayed by said appeal and whether the Court should issue its writ of mandate notwithstanding said intended notice of appeal; the Court having reviewed the authorities cited in said letters of counsel, being fully informed in the matter, and good cause appearing, NOW, THEREFORE, THE COURT HEREBY ORDERS THAT: 1. The Court's writ of mandate herein is a prohibitory injunction against respondents, for the purpose of preserving the status quo between the parties to this proceeding by directing respondents not to hold the special municipal referendum election scheduled for December 10, 1985 and not to expend public funds on said election. The status quo should be preserved pending any appeal herein by the issuance of said writ against respondents, pursuant to the Court's judgment herein. 2. No appeal by any party to this proceeding shall operate as a stay of the judgment, or of the issuance or enforcement of the writ of mandate, absent action by the Court of Appeal. DATED: O{~T ~ 8 1985 2 THOMAS M. JENKINS 1 2 DECLARATION OF SERVICE BY MAIL 3 4 5 6 7 8 9 10 ].2 ].3 14 15 ].6 ].7 I, the undersigned, declare: I am employed in the City and County of San Francisco. I am over the age of eighteen years and not a party to this action. My business address is One Ecker Building, Suite 200, San Francisco, California 94105. On the date below written I placed a true copy of the following document: NOTICE OF ENTRY OF ORDER in envelopes addressed as follows: Ann Broadwell, Esq. Adams, Broadwell & Russell 400 South E1 Camino Real Suite 580 San Mateo, CA 94402 Robert J. Lanzone, Esq. Aaron, Dickerson, et al. 1564 Laurel Street San Carlos, CA 94070 18 19 20 which envelope I sealed with first-class postage fully prepaid thereon and deposited in the United States mail at San Francisco, California on the date below written. 21 22 23 24 25 26 I declare under penalty of perjury that the foregoing is true and correct and that this declaration is executed at San Francisco, California on the date below written. Dated: October ~, 1985 Suzanne Orcutt CEI~TI~AL RE~OI~D~ OFF'ICE OF' TItlE CiTY CLERK (415) 87'7-8518 October 30, 1985 Mr. Robin Johnson Sequoia Pacific Systems 400 2nd Street, 2nd Floor San Francisco, CA 94107 Dear Robin: Attached hereto are copies of the following documents in reference to the Special Referendum Election previously scheduled for December 10, 1985' 1. Peremptory Writ of Mandate 2. Notice of Entry of Order 3. Order Determining that Writ of Mandate Shall Issue and that Judgement and Writ of Mandate are Not Stayed by Appeal Very truly yours, Barbara A. Battaya City Clerk BAB:ef Attachments 400 GRAND AVENUE -- P. O. BOX 711 -- 94080 CENTRA~ RECORDS FILE NO.: ..:~/--..."~-' / ~' 1 2 3 4 5 6 7 8 9 10 ].2 ].3 14 15 ].6 ].7 ].8 19 2O 21 22 23 24 25 26 WILLIAM W. STERLING PETER H. GOLDSMITH HELLER, EHRMAN, WHITE & McAULIFFE 44 Montgomery Street, Suite 3000 San Francisco, CA 94104 Telephone: (415) 772-6000 Attorneys for Petitioner W. W. Dean & Associates HOWARD N. ELLMAN JOHN D. HOFFMAN ELLMAN, BURKE & CASSIDY A Professional Corporation One Ecker Building, Suite 200 San Francisco, CA 94105 Telephone: (415) 777-2727 Attorneys for Petitioner Visitacion Associates IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN MATEO W. W. DEAN & ASSOCIATES, a California corporation; VISITACION ASSOCIATES, a joint venture, Petitioners, Ve CITY OF SOUTH SAN FRANCISCO, a municipal corporation; CITY COUNCIL OF THE CITY OF SOUTH SAN FRANCISCO; BARBARA A. BATTAYA, ) in her capacity as City Clerk Of ) The City Of South San Francisco, ) Respondents. SOUTH SAN FRANCISCO CITIZENS FOR OUR MOUNTAIN, Intervenor. No. 300837 NOTICE OF ENTRY OF ORDER 1 2 3 4 5 6 7 8 9 10 11 12 13 1,4 15 16 17 18 19 20 21 .22 23 24 25 26 TO RESPONDENTS AND INTERVENOR ~ND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT on October 28, 1985, the Court made and entered herein its Order Determining That Writ Of Mandate Shall Issue And That Judgment And Writ Of Mandate Are Not Stayed By Appeal, a copy of which is attached hereto as Exhibit A. Dated: October 29, 1985 HELLER, EHRMAN, WHITE & McAULIFFE ELLMAN, BURKE & CASSIDY /J~>~n~_D. Hoffman/~' ~ttorneys for W. W. Dean & Associates and Vi$itacion Associates, Petitioners CENTRAL RECORDS 1 2 3 4 5 6 7 8 9 10 12 ].3 15 16 17 18 ].9 20 2]. -22 23 24 25 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN MATEO W. W. DEAN & ASSOCIATES, a California corporation; VISITACION ASSOCIATES, a joint venture, Petitioners, CITY OF SOUTH SAN FRANCISCO, a municipal corporation; CITY COUNCIL OF THE CITY OF SOUTH SAN FRANCISCO; BARPARA A. BATTAYA, in her capacity as City Clerk Of The City Of South San Francisco, Respondents. SOUTH SAN FRANCISCO CITIZENS FOR OUR MOUNTAIN, Intervenor. No. 300837 ORDER DETERMINING THAT WRIT OF MANDATE SHALL ISSUE AND THAT JUDGMENT AND WRIT OF MANDATE ARE NOT STAYED BY APPEAL CENTRAL RECORDS i 6 ? 9 ~0 11 14 16 17 18 19 2O 21 22 2~ 24 2~ 26 27 28 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN MATEO W. W. DEAN & ASSOCIATES, a California corporation; VISITACION ASSOCIATES, a joint venture, Petitioners, Ve CITY OF SOUTH SAN FRANCISCO, a municipa! corporation; CITY COUNCIL OF THE CITY OF SOUTH SAN FRANCISCO; BARBARA A. BATTAYA, in her capacity as City Clerk of the City of South San Francisco, Respondents. SOUTH SAN FRANCISCO CITIZENS FOR OUR MOUNTAIN, Intervenor. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) NO. 300837 PEREMPTORY WRIT OFf,MANDATE.. CENTRAL RECOR~D~ 1 2 3 6 8 9 10 Il 12 13 14 15 16 1'7 18 19 2O 21 22 23 24 25 26 2'7 28 TO: CITY OF SOUTH SAN FRANCISCO, CITY COUNCIL OF THE CITY OF SOUTH SAN FRANCISCO, AND BARBARA A. BATTAYA AS CITY CLERK OF THE CITY OF SOUTH SAN FRANCISCO, RESPONDENTS: After hearing and determination by this Court that you have failed to perform your legal duties with respect to a special referendum election on December lO, 1985, and are to take no action to hold said referendum election and to make no expenditures of public funds on said election, and judgment having been entered in this proceeding ordering that a peremptory writ of mandate issue under the seal of this Court, THEREFORE, you are commanded to take no action to hold said referendum election and to make no expenditures of public funds on said election. You are further commanded to serve and file a written return to this writ on or before November 1, 1985. WITNESS: The Honorable Thomas M. Jenkins, Judge of the Superior Court. Dated: October ~, 1985 Marvin Church Clerk of the Superior Court By ~Yeputy Clerk 2 CENTRAL RECORDS 2 8 9 10 1! 12 13 14 15 16 1'7 18 19 20 21 22 23 '24 25 The Court havlng determined, after hearing, that Judgment for ~etltloners shall be entered herein and that a peremptory writ of mandate shall issue under the seal of this Court, commanding respondents City of South San Francisco, City Council of the City of South San Francisco, and Barbara A. Battaya, as the City Clerk of the City of South San Francisco, to take no action to hold said special election, and to make no expenditures of public funds on said election; lntervenor South San Francisco Citizens for our Mountain having advised the Court through its counsel that it intends to file a notice of appeal promptly upon entry of judgment; Intervenor and Petitioners having requestedthe ~ourt by letters of their respective counsel dated October 21, 1985 to determine whether the Court's judgment and writ of mandate will be stayed by said appeal and whether the Court should issue its writ of mandate notwithstanding said intended notice of appeal; the Court having reviewed the authorities cited in said letters of counsel, being fully informed in the matter, and good cause appearing, NOW, THEREFORE, THE COURT HEREBY ORDERS THAT: 1. The Court's writ of mandate herein is a prohibitory injunction against respondents, for the purpose of preserving the status quo between the parties to this proceeding by directing respondents not to hold the specia! municipal referendum election scheduled for December 10, 1985 and not to expend public funds on said election. The status quo should be preserved pending any appeal herein by the issuance of said writ against respondents, pursuant to the Court's judgment herein. 2. No appeal by any party to this proceeding shall operate as a stay of the judgment, or of the issuance or enforcement of the writ of 26. III mandate,DATED: absent{)oTaction~) 8 1985bY the Court of Appeal. 28 2 THOMAS M. JENKINS jUD6~ U~ IH~ ~UPk~IU~ CUU~I CENTRAL RECOI::~D~ 1 2 3 8 10 11 12 13 14 15 17 18 19 2O 21 23 24 DECLARATION OF SERVICE BY MAIL I, the undersigned, declare: I am employed in the City and County of San Francisco. I am over the age of eighteen years and not a party to this action. My business address is One Ecker Building, Suite 200, San Francisco, California 94105. On the date below written I placed a true copy of the following document: NOTICE OF ENTRY OF ORDER in envelopes addressed as follows: Ann Broadwell, Esq. Adams, Broadwell & Russell 400 South E1 Camino Real Suite 580 San Mateo, CA 94402 Robert J. Lanzone, Esq. Aaron, Dickerson, et al. 1564 Laurel Street San Carlos, CA 94070 which envelope I sealed with first-class postage fully prepaid thereon and deposited in the United States mail at San Francisco, California on the date below written. I declare under penalty of perjury that the foregoing is true and correct and that this declaration is executed at San Francisco, California on the date below written. Dated: October ~, 1985 Suzanne Orcutt CENTRAL RECORDS OFF~C~ OF CITY CLERK (415) 877-8518 October 30, 1985 Mr. Marvin Church County Cl erk/Recorder County of San Mateo c/o Ms. Shirley Coughlin Election Deoartment 40 Tower Road San Mateo, CA 94402 Dear Mr. Church: Attached hereto are copies of the following documents in reference to the Special Referendum Election previously scheduled for December 10, 1985: 1. Perempto~ Writ of Mandate 2. Notice of Entry of Order 3. Order Determining that Writ of Mandate Shall Issue and that Judgement and Writ of Mandate are Not Stayed by Apoeal Very truly yours, Barbara A. Battaya City Clerk BAB:ef Attachments 400 GRAND AVENUE -- P. O. BOX 711 -- 94080 CENTRAL RECORDS SUBJECT FRO~ CI?v OF SOUTH SAN FRAI qSCO INTER-OFFICE MEMORANDUM City C1 erk W.W. DEAN -vs- CITY OF SSF City Attorney DATE October 25, 1985 REPLY ~ INFOrmATION ONLY REQUESTED NO REPLY REQUESTED This memorandum forwards the following documents in the above-referenced case: 2. 3. 4. SIGNED -'Il' %SIGNED ~- AS/SS 206 Memorandum of Points and Authorities in Support of Petition for Writ of Mandate. Petition for Writ of Mandate Pe~xemptory Writ of Mandate E~ ~arte Application for Leave to File lqemorandum of Points and Authorities in ex~s~~,/~;t 25 pages. l RKR/mm OBER~ K. ROGERS, JR. . Enc. DATE (WHITE) Receiving Copy (YELLOW) Return To Sender CENTRAL. (PINK) CC or Date File (GOLDENROD) Senders File Copy 1 2 3 4 5 6 7 8 9 10 11 12 13 15 16 17 18 19 20 21 22 23 24 25 26 WILLIAM W. STERLING PETER H. GOLDSMITH HELLER, EHRMAN, WHITE & McAULIFFE 44 Montgomery Street, Suite 3000 San Francisco, California 94104 Telephone: (415) 772-6000 Attorneys for Petitioner W. W. DEAN & ASSOCIATES HOWARD N. ELLMAN JOHN D. HOFFMAN ELLMAN, BURKE & CASSIDY A Professional Corporation One Ecker Building, Suite 200 San Francisco, California 94105 Telephone: (415) 777-2727 Attorneys for Petitioner VISITACION ASSOCIATES SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN MATEO W. W. DEAN & ASSOCIATES, a California corporation, VISITACION ASSOCIATES, a joint venture; Petitioners, CITY OF SOUTH SAN FRANCISCO, a municipal corporation; CITY COUNCIL OF THE CITY OF SOUTH SAN FRANCISCO; BARBARA A. BATTAYA, in her capacity as City Clerk Of The City Of South San Francisco, Respondents. CIVIL NO. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITION FOR WRIT OF MANDATE CENTRAL RECOi:~D~ ~'~L~ NO.~ ,._07 '~ . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 TABLE OF CONTENTS I. INTRODUCTION ....................................... II. STATEMEN~ OF FACTS ................................. The Parties ................................... City's Prior Actions Concerning the San Bruno Mountain Habitat Conservation Plan ............ City's Prior Actions Concerning The South Slope Property ................................ The South Slope Geotechnical Amendment To The Habitat Conservation Plan ................. III. ARGUMENT ........................................... The Court Is Empowered to Enjoin The Special Election .............................. City's Approval of Resolution 156-85 Was An Administrative Act Not Subject To Referendum .................................... California Authorities Limit the Referendum to Review of Legislative Acts ..................................... The Approval of Resolution 156-85 Was An Administrative Act .................... The Amendment to the HCP Is Not A Substantial Alteration of Any Legislative Act .......................... The South Slope Geotechnical Amendment Is Not A Proper Subject For Referendum Because It Relates To An Area of National Concern In Which Congress Has Delegated Decisionmaking Powers To City For Local Implementation of Federal Conservation Policies ................. IV. CONCLUSION ......................................... Page 1 3 3 3 9 10 16 17 18 18 20 23 27 34 -i- CENTRAL: 1 2 3 4 5 6 7 8 9 ]0 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 TABLE OF AUTHORITIES Cases American Federation of Labor v. Eu, 36 Cal. 3d 687, 696 (1984) DeBottari v. City Council, 85 Daily Journal D.A.R. 3141 (1985) Fishman v. City of Palo Alto, 86 Cal. App. 3d 506 (1978) Friends of Endangered Species Inc. v. Jantzen, 760 F.2d 976 (9th Cir. 1985) Friends of Mount Diablo v. County of Contra Costa, 72 Cal. App. 3d 1006 (1977) Granite Rock Co. v. California Coastal Commission, 768 F.2d 1077 (1985) Housing Authority v. Superior Court, · .35 Cal. 2d 550 (1950) Lincoln Property Co. No. 41 Inc. v. Law, 45 Cal. App. 3d 230 (1975) Martin v. Smith, 184 Cal. App. 20 571 (1960) O'Loane v. O'Rourke, 231 Cal. App. 2d 774 (1965) Reagan v. City of Sausalito, 210 Cal. App. 2d 618 (1962) Reidman v. Brinson, 217 Cal. 383 (1933) San Diego Building Contractors Association v. City Council, 13 Cal. 3d 205 (1974) -ii- Page 17 17 17, 18, 20, 23 7, 8, 21 27, 29, 32, 33 29 29 18, 19, 20, 24 19, 20 19, 22 20 29 19 CENTRAL RECOR, DS ! 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 TABLE OF AUTHORITIES (Continued) Cases Simpson v. Hire, 36 Cal. 2d 125 (1950) Tennessee Valley Authority v. Hill, 437 U. S. 153 (1978) Valentine v. Town of Ross, 39 Cal. App. 3d 954 (1974) Wheelwright v. County of Marin, 2 Cal. 3d 448 (1970) Yost v. Thomas, 36 Cal. 3d 561 (1984) Other Authorities Endangered Species Act, 16 U.S.C. § 1531 et seq. H. R. Rep. 97-835 97th Cong. 2d Sess. 31-32, U. S. Code Cong. & Admin. News 1982, pp. 2807, 2871-72 -iii- Page 17, 18, 28 31 18, 19, 23 20 20, 22, 27 6, 8, 30, 31 8, 31, 32 CENTRAL RF--.COR'D'~ 3 4 § 6 7 8 9 10 11~ 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 INTRODUCTION Petitioners W. W. Dean and Associates ("Dean") and Visitacion Associates ("VA") seek a writ of mandate against respondents City of South San Francisco, its Mayor and the other members of its City Council, and its City Clerk (collectively called "City" herein) to compel respondents to take no further action to hold a municipal referendum election on City Council's Resolution No. 156-85. The Council adopted Resolution 156-85 on July 10, 1985. By means of the Resolution, City approved an agreement entitled "Amendment to San Bruno Mountain .~rea Habitat Conservation Plan to Permit Site-specific Geotechnical Repairs," authorized its Mayor to execute the agreement, and directed its City Manager to take such actions as are necessary to accomplish the purposes of the agreement and the geotechnical repairs provided for therein. City's approval of this Resolution was one of the final steps necessary to implement the long-debated, conspicuously scrutinized decision to allow carefully-planned limited development on San Bruno Mountain, including the South Slope on which Petitioner Dean proposes to develop the Terrabay Project (the "Project"). San Bruno Mountain is now subject to a complex, interrelated layering of federal, state and local plans. Taken as a whole, the planning required for the Mountain balances various public interests, including preservation of federally listed endangered species, preservation of environmentally -1- 1 2 3 4 5 6 7 8 9 I0 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 II. STATEMENT OF FACTS1 A. The Parties VA is the owner of a 337-acre parcel of real property located in City and situated on a portion of San Bruno Mountain commonly known as the South Slope. Dean holds an option from VA to acquire the South Slope property for residential and commercial development. City's Resolution No. 156-85 concerns the South Slope property and limited portions of adjacent properties. The City Clerk certified on August 9, 1985 .that the required number of registered voters had signed a petition calling for a referendum on Resolution No. 156-85 pursuant to Elections Code § 4051. On' September 11, 1985 the City Council by vote of 3-2 determined to submit Resolution No. 156-85 to a special referendum election on December 10, 1985. (Petition For Writ of Mandate ["Petition"], Exhibit D.) B. City's Prior Actions Concerning the San Bruno Mountain Habitat Conservation Plan. Development of the South Slope of San Bruno Mountain has, since at least the mid-i970's, been the subject of intense The factual statements herein are supported in the Verified Petition, the exhibits to that Petition, the Declaration of William W. Dean, and the exhibits to the Declaration of Peter H. Goldsmith, all of which are filed herewith. Insofar as may be necessary, Petitioners hereby request that the Court take mandatory and permissive judicial notice, pursuant to Evidence Code Sections 451 and 452, of the various federal statutes, judicial decisions, and municipal resolutions and ordinances brought before the Court. -3- CENTRAL RECORO:~ , LE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 litigation, negotiation, and planning, both public and private. Concerned parties have expended vast sums in their efforts to devise an acceptable development plan which balances environ- mental concerns, housing needs, and the landowner's interest in developing its land. Adversaries have repeatedly attempted to stop development or restrict it to uneconomic limits. The voters of the City of South San Francisco have already once approved the development on the South Slope. In a special election held on October 6, 1981, the voters approved the provision of basic city services to future developments there. The campaigning in the special election focused on the South Slope and the electoral decision in favor of development was equivalent to specific voter ratification of the Terrabay Project. A different result would have barred such development. Shortly after this election, City, the County of San Mateo (County), VA, Dean, the United States Fish and Wildlife Service (USF&WS), the Cities of Daly City and Brisbane, the State of California and Others entered an agreement entitled "Agreement With Respect To The San Bruno Mountain Area Habitat Conservation Plan" ("HCP Agreement"). The HCP Agreement was executed on November 16, 1982 by VA, Dean, City and County, and on March 4, 1983 by USF&WS. The City Resolution (No. 156-85) challenged by the referendum approves an amendment to the HCP Agreement, for which amendment the HCP Agreement expressly provides. The HCP Agreement is the controlling plan which provides for the balanced fulfilment of public interests in the CENTRAL RECORD~ FILE NO.'. ! 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 use of San Bruno Mountain. Its principal purpose is to reconcile limited development on the Mountain with protection and enhancement of the habitat of certain endangered species, including the Mission Blue butterfly, and other important species which are found on the Mountain. The HCP was formulated on the basis of biological studies performed on the Mountain in 1980 and 1981 by County's scientific consultants, Thomas Reid & Associates ("TRA"). Further biological studies have continued yearly since that time. The HCP was prepared under the supervision of a Steering Committee chaired by County and including representatives of County, City, USF&WS, the Califormia Departments of Fish and Game and Parks and Recreation, Daly City, Brisbane, the environmental group Committee to Save San Bruno Mountaih, as well as VA and other landowners. In particular, the plan regulates development on the undeveloped portions of San Bruno Mountain, including the South Slope property and adjacent upslope lands. County and the USF&WS prepared a joint Environmental Impact Report/Environmental Assessment ("EIR/EA") on the HCP under the California Environmental Quality Act (CEQA) and the National Environmental Policy Act (NEPA). After public hearings, County passed its Resolution No. 43770 on September 14, 1982, adopting the HCP and certifying the EIR/EA as complete and adequate under CEQA. On November 15, 1982, City adopted its Resolutions No. 139-82 and 140-82 (Petition, Exhibits B and C) authorizing ~ENTRAL RECORD~ --5-- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 ~4 25 26 execution of the HCP Agreement and the filing of a permit application to the USF&WS for the incidental taking of Mission Blue butterflies and other endangered species in accordance with the HCP. City later adopted its Resolution No. 25-83 on February 16, 1983 (Petition, Exhibit F) making extensive findings and setting forth a statement of overriding considerations under CEQA in support of its earlier actions. The permit application to USF&WS authorized by City's Resolution No. 140-82 was filed jointly by City, County, Daly City and Brisbane in November 1982 under Section 10(a) of the Endangered Species Act, as amended by the Endangered. Species Act Amendments of 1982. 16 U.S.C. § 1539(a). In brief, Section 10(a! authorizes the Secretary of Interior to permit the "incidental taking" of an endangered species pursuant to a "conservation plan" which the Secretary finds will minimize and mitigate the impacts of such incidental taking, will ensure adequate funding for protection of such species, and will not appreciably reduce the likelihood of survival for the species in question. On March 4, 1983, the Secretary made the required findings concerning the HCP, took other required actions under the Endangered Species Act and NEPA, and issued Fish and Wildlife Permit No. PRT 2-9818 (the "Permit") to City, County. and other applicants for the requested incidental takings on San Bruno Mountain. The Permit was the first to be issued under the "conservation plan" and "incidental taking" provisions added to the Endangered Species Act by the Amendments of 1982. -6- CENTRAL RECORDS 1 2 3 4 5 6 7 8 9 10 11 12 I3 14 15 16 17 18 19 20 21 22 23 24 25 26 Following issuance of the Permit, a then newly-formed environmental group challenged its validity ~nder the Endangered Species Act and NEPA in Friends of Endangered Species v. Jantzen et al., No. C-83-3837 SW (U.S. District Court, N.D, Calif.), (the "FOES"case). City, VA, Dean, County and the other parties to the HCP Agreement were defendants in FOES. The federal courts upheld the Permit, the HCP and the EIR/EA at every juncture and in every respect. The District Court denied plaintiff's motion for a preliminary injunction and granted a summary judgment for defendants, which the Ninth Circuit affirmed. FOES, 589 F. Supp, 11.3 (N.D. Calif. 1984); 596 F. Supp. 518 (N.D. Calif~ 1984); 2 affirmed, 760 F. 2d 976 (9th'Cir. 1985). The Ninth'Circuit's opinion in FOES thoroughly summarizes the background and provisions of the HCP. See id. at 979-81. As the Court explains, the conclusion of County's biological study and the major premise of the HCP was that, without an active conservation program for San Bruno Mountain, the endangered butterflies' habitat "would inevitably be lost to encroaching brush, and the butterflies' continued existence would be seriously threatened." Id. at 980. The HCP provides for dedication of 793 acres of land by VA and other landowners as permanent open space. This dedication is in addition to 2011 acres of parklands previously donated and sold to County and the State by VA and its co-owner Crocker Land 2 A copy of the Ninth Circuit opinion is attached to the Declaration of Peter H. Goldsmith filed herewith ["Goldsmith Declaration"] as Exhibit 1. -7- CENTRAL RECORD..~ 1 2 3 4 5 6 7 8 9 I0 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Company. The Plan preserves 81% of the Mountain's open space immediately, and a~ additional 3~ after initial disturbance for development. The open space so preserved includes 86~ of the endangered butterflies' habitat. The Plan provides for initial developer contributions and subsequent homeowner assessments of $60,000 per year, adjusted for inflation, to fund a County- supervised program of habitat conservation and enhancement. Ail parties recognize that the funds from the developable portions of the Mountain provide otherwise unavailable capital necessary to finance this program of habitat conservation and enhancement. USF&WS concluded that, because of these features ~nd.the strict development controls discussed hereinafter, the HCP would enhance rather than reduce the butterflies' prospects for survival. See FOES, supra, 760 F.2d at 979-982. The Ninth Circuit also found in reviewing the legislative history of the 1982 Endangered Species Act Amendments that "Congress viewed [the HCP] as the paradigm approach to compliance with section 10(a) " I__d. at 982. In the course of the legislative process, the responsible Committees of Congress cited the HCP as an "example" in which: the overall effect of a project can be beneficial to a species, even though some incidental taking may occur [T.]he San Bruno Mountain plan is the model for this long term permit and the adequacy of similar con-servation plans should be measured against the San Bruno Plan Senate Rep. No. 97-418 (97th Cong. 2d Sess.) at 10 (1982); H.R. Rep. No. 97-835 (97th Cong. 2d Sess.) at 31-32 (1982), quoted in FOES, 760 F. 2d at 982-83. (Emphasis added.) -8- CENTRAL RECORDS 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 25 26 C. City's Prior Actions Concerning The South Slope Property On December 2, 1982, City adopted its resolution No. 159-82 (Petition Exhibit D), approving a specific plan designated as the "Terrabay Specific Plan" for the South Slope property. The Terrabay Plan provides for construction of 745 residential units and for commercial development on portions of the South Slope Property in a manner consistent with the provisions of the HCP. In order to proceed with such development, the Specific Plan requires Dean to provide extensive infrastructure for City, including a recreation center and fire station, an extension of Hillside Boulevard and other major roadway improvements, and storm drainage facilities. On February 2, 1983, City adopted its Ordinance No. 915-83 (Petition, Exhibit E), establishing a Specific Plan Zoning District for the South Slope Property and rezoning various portions of the Property to provide for development and controls consistent with the provisions of the Terrabay Specific Plan. All land uses in the Specific Plan District are required to be in compliance with the provisions of the HCP. Despite these entitlements, Dean has been unable to proceed with the South Slope development. In addition to the geotechnical obstacles discussed hereinafter and the FOES litigation discussed above, the Terrabay project was also attacked indirectly by litigation which challenged the housing element of City's general plan. Just as in FOES, here also City, -9- CENTRAL RECORDS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 VA, and Dean prevailed on a summary judgment which was subsequently affirmed on appeal. (Pollard, et al. v. City and County of San Francisco, No. 274286 San Mateo County Superior Court, affirmed, August 7, 1985, No. A025541 Court of Appeal, First Appellate District.) D. The South Slope Geotechnical Amendment To The Habitat Conservation Plan The Terrabay Specific Plan (approved in 1982) required Dean to perform detailed soil and geotechnical studies and to implement the recommendations of those studies in order "to preclude potential problems relating to' ground slippage and landslides, erosion and storm drainage .... " (Petition, Exhibit D, Attachment 1, Item 8.) The studies were completed under City and County supervision in 1983 and 1984. They confirmed the longstanding general perception that major landslide problems existed on the upper portions of the South Slope Property and on the County Park lands upslope from the Terrabay Project. These conditions were rated as posing a potential hazard to the future occupants and structures of the Terrabay and also to existing downslope residences. City required that Dean resolve these geotechnical problems before proceeding with the Project. The HCP contains detailed plans and controls for construction and related activity on the South Slope Property (designated therein as Administrative Parcel No. 2-0~) and on other parcels where development is permitted. Under the HCP, -10- land already in public ownership or slated for future donation is treated as "Conserved Habitat" and is protected against disturbance during development activity, except for certain areas 4 termed "Reclaimed Habitat" in which temporary disturbance is permitted. The City and County now require landslide repair on land which under the HCP is "Conserved Habitat" Lawful entry on 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 the land is not permitted absent an amendment to the HCP. Without such an amendment, the Project cannot be completed and the HCP funding and habitat conservation will not occur. Dean's geotechnical consultants examined several alternative methods of making the required landslide repairs. In order to assess the environmental consequences of these alternatives, County arranged for preparation of a supplemental EIR/EA (the "EIR/EA Supplement"). TRA, the consulting firm which had prepared both the San Bruno Mountain Biological Study and the original EIR/EA for the HCP, also prepared the Supplement. On January 10, 1985, County adopted its Resolutions No. ~6465 and 46466, certifying the EIR/EA Supplement for the South Slope Geotechnical Amendment as complete, correct and adequate under the California Environmental Quality Act and making extensive findings in support of the preferred slope repair alternative (Alternative 2) selected from the eleven alternatives analyzed in the EIR/EA Supplement. After emergence of the geotechnica! problems, City, County, Dean and VA, as well as other parties to the HCP -11- CENTRAL RECORDS !,'ll£ NO.: .. '~-~-'~'~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Agreement, noting that a contract may always be amended if all the contracting parties consent, agreed during 1984 to seek immediate amendment of the HCP by means of the concurrence of all of the contracting parties. Accordingly, on January 22, 1985, County also approved a site-specific Geotechnical Amendment to the HCP based on the EIR/EA Supplement and the preferred repair alternative. City, in turn, itself approved the Amendment in its Resolution No. 48-85 on February 27, 1985 (Petition, Exhibit H). This approval was based on EIR/EA Supplement. No court challenge was made -- yet the referendum at issue here in effect challenges these very decisions. Thereafter, VA and Dean and all other parties to the HCP Agreement except for the City of Brisbane executed the Amendment or signified their readiness to do so. But because of Brisbane's refusal, the Amendment to the HCP could not be adopted and the Permit could not be amended on the basis of the consent of all the contracting parties. Consequently, County, City, Dean and VA, bowing to still further delay, sought the necessary amendment pursuant to specific sections of the HCP Agreement which provide for amendments of the Agreement at designated three-year intervals ("window periods") commencing in July 1985. Such "window period" amendments require the consent only of the affected landowner, County, the jurisdiction having local land use authority (i.e., City in this case), and the USF&WS. In order to effect a "window period" amendment to authorize the South Slope geotechnical repairs, County prepared 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 an addendum to the EIR/EA Supplement to assess the environmental impacts of all other projected "window period" amendments to the HCP. On July 10, 1985 County adopted its Resolutions No. 47081, 47082 and 47083, certifying and making findings with respect to that Addendum under CEQA, similar to those made by County with respect to EIR/EA Supplement in January 1985. County then adopted its Resolution No. 47084, authorizing the Chair of its Board of Supervisors to execute the South Slope Geotechnical Amendment. Supervisor Speier executed the Amendment on County's behalf on July 10, 1985. On the evening of July 10, 1985, following.County's actions earlier that day, the City Council of South San Francisco adopted its Resolutions No. 154-85 and 155-85 (-Petition, Exhibits I and J), making extensive findings in support of its consideration of the EIR/EA Supplement and the Addendum thereto, and adopting a statement of overriding considerations under CEQA in support of City's approval of the South Slope Geotechnical Amendment and the preferred slope repair alternative under the EIR/EA Supplement. City's Resolution No. 154-85 details the significant environmental effects of the Amendment and describes the mitigation required from Dean under the HCP. Under the Amendment, 24 residential units would be eliminated entirely from the Terrabay development; another 19 units will be held in abeyance for one year after completion of repairs to determine whether construction may safely proceed. The repairs themselves -13- CENTRAL RECOI:~DS FILE NO.: ,%-~ 1 2 3 4 5 6 7 8 9 ]0 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 will cause temporary disturbance of 24.5 acres of the South Slope Property in addition to the 44 previously authorized to be so disturbed; an additional 9 acres will be permanently disturbed, an increase from 126 to 135 acres in the total area of such disturbance° There will also be temporary disturbance of 1.5 acres of County parkland and 1.5 acres of other lands slated for donation to County by VA when development of Terrabay is finally assured. As a result of this additional disturbance, the EIR/EA Supplement estimates short-term loss of mission blue butterflies from Terrabay's construction will increase from 2.22~ to 3.©2~ of the population, and the short-term impact on the total San Bruno Mountain population from all development activity under the HCP will correspondingly increase from 13.59~ to 14.39~ -- less than 1%. (See Petition, Exhibit I, Attachment 1, p. 11, 20.) The approvals of the EIR/EA Supplement by City and County require Dean to fund an off-site habitat enhancement program on an additional 30 acres of County parkland in the "Saddle" area of San Bruno Mountain which was not originally scheduled for such enhancement under the HCP. Dean is also required to mitigate the impacts of the slide repairs by a phased grading program and other restrictions. I__d. at 21-23. In its statement of overriding considerations adopted on July 10, 1985, City found that approval of the Geotechnical Amendment was warranted. Specifically, City found that the HCP's overall program to protect the habitat and thus to reduce the risk of extinction of the mission blue and other species of. -14- CENTRAL RECORD~ . concern, the sorely-needed additional housing units the Terrabay 2 development will provide, the HCP funding which the development 3 will make possible, and the landslide, flooding and storm 4 drainage problems which the development will alleviate were all 5 determinative in the Project's favor. (Petition, Exhibit I at 6 3-5.) City's findings have not been challenged in the proposed referendum or in any other forum. After making these findings, City adopted Resolution 9 No. 156-85, on July 10, 1985, which approved the Amendment and 10 authorized its execution. City's Mayor executed the Amendment on July 15, 1985, the document having been previously executed by 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 County, VA and Dean. (Petition, Exhibit K, Attachment 1). Approval of the Amendment by'USF&WS followed thereafter. (Petition, Exhibits L and M.) Following the City Clerk's certification of the necessary signatures on the referendum petition on August 9, 1985, the City Attorney directed a memorandum to the City Council advising the Council of his conclusion that Resolution No. 156-85 was not a proper subject for referendum because Resolution No. 156-85 is an administrative rather than a legislative act of City. (Petition, Exhibit O) The City Attorney's memorandum concludes that the South Slope Geotechnical Amendment is only a necessary administrative implementation of the legislative policies previously adopted by City in its 1982 and 1983 approvals of the HCP, the Permit Application to USF&WS, the Terrabay Specific Plan and the Terrabay Specific Plan District. -15- CENTRAL RECORO$ FILE NO.: ..¥~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 (Petition, Exhibits B, D, and E). Because only a legislative act may be the subject of a referendum (see Argument infra), the City Attorney recommended that the Council refuse to call ~or the special election. The City Council disregarded the City Attorney's advice. By a 3-2 vote on September 11, 1985 the Council ordered a special referendum election on. December 10, 1985 (Petition, Exhibit P). Petitioners Dean and VA contend that the City Attorney's advice was correct and was improperly ignored by the Council, and that this Court should issue its writ of mandate ordering that the election not be held. III. ARGUMENT City's decision to submit Resolution 156-85 to referendum vote was improper. Under two longstanding and unbroken lines of California cases, the administrative acts of a municipal council are not subject to referendum. These cases establish that when a municipal council approves a resolution which merely implements previously approved legislation, that act is administrative, and that when a municipal council approves a resolution pursuant to a pervasive system of statewide or national regulation and concern, that act also is administrative. In this case, City's approval of Resolution 156-85 merely implemented the various legislative acts which previously approved development on the South Slope and adoption of a habitat conservation plan under federal law. It was but one of the final -16- CENTRAL RECOROS FILE NO.: ,,~,~_.3/, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 ]7 19 20 21 22 23 24 25 26 administrative steps necessary to carry out the previously approved and long-considered legislation on these subjects. Moreover, City approved Resolution 156-85 pursuant to the powers delegated to it under the federal Endangered Species Act. Thus, City was acting in an administrative capacity to further the purposes of national law. Accordingly, approval of Resolution 156-85 was an administrative act not subject to referendum and the Court should enjoin the holding of the special election. A. The Court Is Empowered To Enjoin The Special Election. Courts will enjoin the holding of initiative or referendum elections if it is determined "that the electorate does not have the power to adopt the proposal in the first instance." American Federation of Labor v. Eu, 36 Cal. 3d 687, 696 (1984); (concurring and dissenting opinion); DeBottari v. City Council, 85 Daily Journal D.A.R. 3141, 3142 (September 6, 1985).3 ThuS, courts have often enjoined election officials from placing proposals on the ballot if the challenged proposal was administrative rather than legislative. See, e.g., Simpson v. Hite, 36 Cal. 2d 125 (1950); DeBottari v. City Council, supra; Fishman v. City of Palo Alto, 86 Cal. App. 3d 506 (1978). Since the referendum in question challenges an administrative act, it, too, should be enjoined, thereby sparing City the costs of an invalid election. A copy of this case is attached to the Goldsmith Declaration as Exhibit 2. -17- CENTRAL RECORDS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 18 19 20 21 22 23 24 25 26 B. City's Approval of Resolution 156-85 Was An Administrative Act Not Subject to Referendum. 1. California authorities limit the referendum to review of l~gislative acts. Article IV, Section 1 of the California constitution reserves the power of the initiative and referendum to the people. Though courts have often recited that that power is "to be liberally construed", the very same authorities recognize that the referendum may be invoked "only with respect to matters which are strictly legislative in character"'. See e.g., Fishman v. City of Palo Alto, supra, 86 Cal. App. 3d at 509; Lincoln Property Co. No. 41, Inc. v. Law, 45 Cal. App. 3d 230, 233-34 (1975). Administrative acts, the courts have held, are not subject to referendum. See e.g., Simpson v. Hite, supra, 36 Cal. 2d at 129; Valentine v. Town of Ross, 39 Cal. App. 3d 954, 957 (1974). The courts have created and upheld this legislative- administrative dichotomy in order to enable local government to render orderly administrative services, free from the interruptive threat of costly referenda whenever a hostile party seeks to dispute or to undermine the coherent administration of government or the implementation of prior legislative action. As noted in Fishman v. City of Palo Alto, supra, 86 Cal. App. 3d at 509: This legislative-administrative dichotomy reflects a determination to balance the ideal of direct legislation by the people against the practical necessity of freeing municipal governments from -18- CENTRAL REC;ORD~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 18 19 20 21 22 23 24 25 26 time consuming and costly referenda on merely administrative matters. See also Martin v. Smith, 184 Cal. App. 2d 571, 575 (1960) ("To allow it [referendum] to be invoked to annul or delay executive -conduct would destroy the efficiency necessary to the successful administration of the business affairs of a city.") The distinction courts have drawn in applying this rule focuses upon the scope and purpose of the act at issue. Legislative acts prescribe a new policy or plan: "Legislative acts are generally those which declare a public purpose and make provisions for the ways and means of its accomplishment" See Lincoln Property Co. No. 41 v. Law, supra, 45 Cal. App. 3d at 234; Valentine v. Town of Ross, supra, 39 Cal. App. 3d at 957-58; Martin v. Smith, supra, 184 Cal. App. at 575. In contrast, administrative acts are acts of implementation, those acts "which are necessary to carry out the legislative policies and purposes already declared by the legislative body." Lincoln Property Co. No. 41 v. Law, sDpra, 45 Cal. 3d at 234. In applying these standards, courts determine on a case-by-case basis whether a municipal government's action is subject to referendum. The leading cases demonstrate that legislative acts involve initial, policy setting legislation or a substantial modification or change' of previous legislation. Thus, the adoption of a general plan is legislative, O'Loane v. O'Rourke, 231 Cal. App. 2d 774 (1965), but the adoption of a precise plan of development implementing a general plan is -19- CENTRAL RECORDE, 1 2 3 4 $ 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 adminstrative, Lincoln Property Co. No. 41 v. Law, supra, 45 Cal. App. 3d at 234; the zoning or rezoning of property is legislative, Yos{ v. Thomas, 36 Cal. 3d 561, (1984), but the mere grant of an easement or variance pursuant to that zoning ~ administrative, San Diego Building Contractors Association v. City Counsel, 13 Cal. 3d 205, 212 n. 5 (1974); the adoption of a precise plan of development which substantially alters a general plan is legislative, Wheelwright v. County of Matin, 2 Cal. 3d 448 (1970), but an insubstantial alteration of a zoning ordinance or development plan is administrative, Fishman v. City of Palo Alto, supra, 86 Cal. App. 3d at 510; and finally, the initial resolution of a city to purchase property is ~egislative, Reagan v. City of Sausalito, 210 Cal. App. 2d 618 (19~2), but the approval of a sublease which is consistent'with plans under which the city acquired title to the lease is administrative. Martin v. Smith, supra, 184 Cal. App. 2d at 575. Under these precedents, approval of Resolution 156-85 must be determined to be an administrative act. 2. The approval of Resolution 156-85 was an administrative act. Resolution 156-85 was an act of implementation, carrying out previously approved legislation calling for the limited development of the South Slope of San Bruno Mountain and the enhancement of the endangered species located there. This Resolution did not change those plans substantially, declare new policies or plans, or establish the basic program to accomplish -20- CENTRAL RECORDS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 the plans. The Resolution approved a minor modification in the existing plans necessary to implement the program as a whole. Under the applicable cases, approval of this type of resolution is not subject to referendum. The pertinent legislative acts relating to development of the South Slope occurred in the early 1980's. Proposed development of the South Slope has been the subject of negotiation, litigation, and legislation since at least 1975. In 1980, when City and Petitioner Visitacion finally settled their ongoing litigation regarding the scope of development of the South Slope, City and other interested agencies commenced the process of considering the approval of pertinent legislation authorizing specific development proposals. See Foes, 760 F.2d at 979-80. In a special election in October of 1981, the voters of South San Francisco approved the basic legislative issue -- whether~ to allow development on the South Slope. In that election, they approved the provision of general municipal services to the planned developments there. Absent that voter approval, no development could have occurred. Since that time, City has addressed two other basic legislative issues regarding development of the South Slope: (1) Whether to approve the Terrabay Specific Plan; and (2) whether to become a signatory of the HCP Agreement. City approved affirmative legislation on these issues in late 1982 and early 1983: On November 15, 1982 City adopted resolutions CENTRAL RECORDS -21 .... ,"-~ authorizing execution of the HCP Agreement; on December 2, 1982, 2 it adopted a resolution approving a specific plan for the South 3 Slope property, the Terrabay Specific Plan; and on February 2, 4 1983, it adopted a rezoning ordinance establishing a Specific 5 Plan District for the South Slope property. These actions firmly 6 established City's legislative policy and plans with respect to 7 the South Slope property. City would allow limited development 8 there which wou'ld enhance the endangered species, respond to the 9 great need for additional housing, and yield City various 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 economic benefits including vital infrastructure. City's actions declared City's general purposes and plans and established the basic plans to carry out these general purposes. These actions were legislative and thus s~bject to referendum. C__f. Yost v. Thomas, supra; O'Loane v. O'Rourke, supra. The voters, however, having previously approved the development on the South Slope, chose not to exercise their power of referendum to challenge this subsequent legislation. In the ensuing two and one-half years, City's basic plans and policies have not changed. City has not reconsidered its plans to allow limited development of the South Slope; City has not reconsidered its approval of the Terrabay Specific Plan; and City has not reconsidered its participation in the HCP. The only intervening circumstance of import -- other than the defeat of the litigation challenging the project -- has been the completion of the soils and geological studies originally required by the City and County, and then used for revising the CENTRAL RECORDS -22- ~ ~; ~ No.: 1 2 3 4 5 6 7 8 9 ]0 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 HCP to accommodate the County's and City's geotechnical requirements. The amendment to the HCP approved by Resolution 156-85 addresses these problems in a manner wholly consonant with the goals of the HCP and the purposes of City's prior approvals of the Project. In fact, by establishing the HCP's elaborate amendment procedures, the HCP signatories expressly provided for a mechanism to modify the HCP in order to assure convenient administratiVe implementation of its plans and purposes. Without the amendment at issue, the Terrabay Specific Plan and the HCP cannot lawfully proceed. Thus, the amendment now in.question implements the previously approved plans and must be considered See Valentine v. Town of Ross, ~upra, 39 Cal. administrative. App. 3d 954. 3. The amendment to the HCP is not a substantial alteration of any legislative act. The argument of the referendum's sponsors that because the resolution approves an amendment to the HCP, the resolution is therefore a legislative act is not well taken. The cases establish that if a resolution or ordinance does not enact new legislation but merely modifies previous plans without substan- tial alteration - - as has occurred here - - the resolution is not subject to referendum. For example, in Fishman v. City of Palo Alto, supra, 86 Cal. App. 3d 506, the Court upheld defendant City's refusal to submit to referendum the challenge to a resolution approving a -23- cENTRA~ R~COR~ "Change of (Zone Change) District Application" to permit the 2 construction of a screened enclosure for certain parking 3 facilities located adjacent to residential properties. 4 Petitioners argued that the zone change modified the original 5 zoning resolution, which was a legislative act, and that the 6 amendment of a legislative act was itself a legislative act 7 subject to referendum. The court rejected this reasoning because 8 of the limited extent of the proposed modification: 9 10 11 I2 13 14 15 16 ]7 18 19 20 21 22 23 24 25 26 Approval of the parking enclosure did not amount to a substantial alteration of the P-C district and therefore was not tantamount to a rezoning of the district. Cases holding land use modifications to be legislative acts subject to referenda involved substantial land use changes. Id. at 510. The court reasoned that treating any modification of previous legislation as a legislative act would be "inconsistent with the policy behind the legislative-administrative test, which permits the exercise of some judgment based on the costs and benefits of the referendum procedure." Id. at 512. The court in Lincoln Property Co. No. 41 v. Law, supra, 45 Cal. App. 3d 230, adopted similar reasoning. There, respondent real estate developer sought and obtained an injunction enjoining the City of San Carlos from conducting a referendum election on the issue of its approval of a precise plan of development, a grading plan, and a subdivision map for a tract in San Carlos. The Court of Appeal affirmed, ruling that the resolution in question merely implemented the purpose of an earlier zoning resolution which established "the legislative CENTRAL- RE. CORO:~ I~ILE NO.: %'~ '~ ! 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 objectives and conditions of development." I_~d. at 235. The Court distinguished its case from two others which involved "substantial alterations" to the previously approved legislative purposes and objectives. Id. at 236. Similarly, the modification to the HCP Agreement approved in Resolution 156-85 neither amends the "legislative objectives and conditions" of the previously approved development plans nor constitutes a "substantial alteration" of those plans. The EIR/EA Supplement and Addendum thereto establish the limited extent of the impacts.4 The potentially "significant impacts" are but two -- the anticipated impact on the endangered butterflies and the visual impact on the immediately surrounding environment. (See EIR/EA Supplement, Excerpts~. p. SS-7, attached as Exhibit 3 to the Goldsmith Declaration.) Neither of these impacts is substantial enough to justify the expenditure and time delay of the referendum. The amendment's expected impact on the butterfly population is minimal and, in the long-run, enhancing. The proposed repairs to the landslides will cause a temporary disturbance of the South Slope property and a permanent disturbance to a few additional acres. Yet, the EIR/EA Supplement estimates that these disturbances will increase the short term loss of Mission Blue and Ca!lippe Silverspot butterflies only approximately one percent. (Goldsmith City has approved by resolution both reports and neither has been challenged. These resolutions thus have the force of law and cannot be challenged in these proceedings. -25- FIlE NO.I ~'~-'~'-~ .'~ ~ ! 2 3 4 5 6 7 8 9 10 1], 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 Declaration, Ex. 3, p. SS-5.) Moreover, since the HCP as a whole is intended to enhance the survival of these species and the amendment is necessary for the Project to proceed, the HCP's enhancement purpose cannot be implemented without the amendment. As the EIR/EA Supplement concludes: "This short-term impact should not reduce the long-term benefit to the species .... " (Goldsmith Declaration, Ex. 3, p. SS-7.) In the face of this finding, it cannot be argued that the amendment's effect on the endangered species is a substantial alteration of the legislation. The amendment's visual impacts are also no~ a "substantial alteration" of the plans. These impacts are at most merely incidental to the impacts previously approved by City and the voters. The original Environmental Impact Report prepared in August 1982 acknowledged the significant visual impacts of the Project. That report noted that the Project would alter "the site's visual character from an open space setting to one of expanding suburban development .... From a distance the hillside [would] look very different from its present natural state." (See Environmental Impact Report, Excerpts, pp. 50, 52, attached as Exhibit 4 to the Goldsmith Declaration.) The report further noted that "parking and service roads, would be steep and prominent" and that "grading which does occur would be higt~!y visible". (Goldsmith Declaration, Ex. 4, pp. 54.) In short, the Project would change the entire visual character of portions of -26- cENTRAL RECORO..~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 the South Slope. Yet notwithstanding these impacts, City and voters time and time again have approved the Project. The only new visual impacts associated with'the slide repair work will be graded slopes of the very type anticipated and approved in the original plans. This grading, moreover, will be obscured from view "from many nearby areas of South San Francisco" and will be visible only in the immediate area. (Goldsmith Declaration, Exhibit 3, pp. IV-23, IV-2~.) Reseeding and replanting of the slopes will mitigate the visual impact as well as restore native habitat for the butterflies. (Goldsmith Declaration, Exhibit 3, p. SS-6). In comparison to the dramatic changes already approved, the impacts associated with the required corrective work are only insubstantial and incidental 'changes necessary to implement the Project as a whole. Like the parking enclosure in Fishman, the proposed change will mod±fy existing plans but in far too insubstantial a way to give rise to the power of referendum. City's approval of Resolution 156-85 was an administrative act not subject to referendum. The Court should grant the writ of mandate and enjoin the election. C. The South Slope Geotechnical Amendment Is Not A Proper Subject For Referendum Because It Relates To An Area Of National Concern In Which Congress Has Delegated Decisionmaking Powers to City For Local Implementation Of Federal Conservation Policies. Even if the approval of Resolution 156-85 was a legislative act, the special election should not proceed. When a -27- -cENTF~AL RECO~S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 city government acts pursuant to a pervasive system of state or federal regulation over a matter of statewide or national concern, California courts view it as acting in an administrative capacity not subject to referendum challenge. See Yost v. Thomas, supra, 36 Cal. 3d 571; Simpson v. Hite, supra, 36 Cal. ~d 125; Friends of Mount Diablo v. County of Contra Costa, 72 Cal. App. 3d 1006 (1977). Here, the federal Endangered Species Act which authorized the formation of the HCP provides an overriding system of federal regulation. The Act's purpose--the perpetuation of endangered species such as the butterflies on San Bruno Mountain--is a matter of national concern. In.approving the amendment to these plans, City acted as an administrative agent delegated with the responsibility of ensuring that the HCP. meets the purposes of the Endangered Species Act. A number of California cases have held that this type of delegation of power bars referendum challenges to legislative acts of city government. For example, the case of Simpson v. Hite, supra, 36 Cal. 2d 125, involved a state statute which required respondent City to provide "suitable quarters" for use as a courthouse. The Court recognized that, viewed in isolation, the selection of the sites of the court buildings might be a legislative matter. 36 Cal. 2d at 131. The Court nonetheless concluded that the legislature had delegated this administrative duty to the cities, thus leaving the city's action free from referendum challenge. See id. at 131. See also Housing -28- cENTRAL. RECOR'OS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 Authority v. Superior Court, 35 Cal. 2d 550 (1950); Reidman v. 5 Brinson, 217 Cal. 383 (1933). The case of Friends of Mount Diablo v. County of Contra Costa, supra, is remarkably similar to this one. In that case, petitioners sought'to challenge by referendum the County's approval of the reorganization of 21 districts contemplated for use in the development of Blackhawk Ranch. The district reorganization occurred pursuant to the District Reorganization Act of 1965. (Government Code § 56000 et seq.). Under that Act, the L6cal Agency Formation Commission (LAFCO) of Contra Costa County had initial responsibility for approving the petition, which, upon.its approval, was submitted for approval to the Board of Supervisors of Contra Costa Count~ as well as other agencies. The Court of Appeal ruled that in approving the reorganization, the County Board of Supervisors was acting in an administrative capacity. The Court noted that the District Reorganization Act had various purposes relating to land use 5 While these cases all involve issues of statewide concern and a delegation of powers from the state legislature to local government, the principles underlying these cases clearly apply to issues of national concern with a delegation of powers from Congress. The pivotal question in these cases is not from which superior entity powers have been delegated but whether a delegation has occured. Moreover, the doctrine of federal preemption, under which Congress has the power to preempt state regulation over matters of national concern, supports the proposition that Congress, by the Endangered Species Act, has displaced state regulation to the extent that City, upon the agreement to the HCP, lacked further power to legislate on matters covered by that plan. See generally, Granite Rock Co. v. California Coastal Commission, 768 F.2d 1077 (gth Cir. 1985). CENTRAL RECORD~ planning which were "matters of concern to the entire 2 commonwealth". 72 Cal. App. 3d at 472. The LAFCO, as the 3 Legislature's "watchdog", had been empowered to achieve "the 4 fundamental policies" of the District Reorganization Act. 72 5 Cal. App.-3d at 471. The actions of the BOard of Supervisors, 6 the Court reasoned, were "of the same character of those of 7 LAFCO" - - to further the purposes of the District Reorganization 8 Act. Id. While noting that the County's rezoning of the area 9 several years earlier had been subject to referendum, the Court concluded that the County's approval of the redistricting was 11 12 13 14 15 16 17 18 19 20 2I 22 administrative and not subject to referendum. In this case, the Endangered Species Act has established the compelling interest of national concern and. the nationwide system regulating that interest. In Section I of the Act, Congress plainly stated its purposes: (1) various species of fish, wildlife, and plan~s in the United States have been rendered extinct as a consequence of economic growth and development untempered by adequate concern and conservation; (2) other species, have been so depleted in numbers that they are in danger of. extinction; (3) these species, are esthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people; 23 24 25 26 The purposes of this chapter are to provide a means whereby the ecosystems upon which the endangered species...depend may be conserved, [and] to provide a program for the conservation of such endangered species .... -30- CENTRAL RE. COEDS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 I5 16 18 19 20 21 22 23 24 25 26 16 U.S.C. § 1531 (1982). Thus, Congress has assigned the highest priority to the protection of endangered species such as the Mission Blue butterfly, and views this protection as an urgent matter of national concern. See Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978). Congress has also established under the Act a nationwide system of regulation dependent upon the delegation of powers to interested local governmental agencies. Section l(a)(5) of the Act delegates to the "States and other interested parties" the general authority to establish qualified species protection programs and plans like the HCP. 16 U.S.C. § 1531(a)(5) (1982) (emphasis added). Section 10(a) of the Act delegates.to municipalities and other "applicants" the power to "take'~ or disturb endangered species upon submission of an acceptable conservation plan.- 16 U.S.C. § 1539(a) (1982). In fact, the legislative history to the 1982 amendment to Section 10 of the Act indicates that Congress looked to the HCP itself as the paradigm approach to effecting the purposes of the Act: This provision is modeled after a habitat conservation plan that has been developed for the conservation of the habitat of endangered species within the San Bruno Mountain area .... Because the San Bruno Mountain plan is the model for this long term permit and because the adequacy of similar conservation plans should be measured against the San Bruno plan .... -31- CENTRAL RECOI=~Dj r,-E No.: 1 2 3 4 5 6 7 8 9 10 11 12 13 14. 15 16 17 18 19 2O 21 22 23 24 25 26 H.R. Rep. 97-835, 97th Cong. 2d Sess. 31-32, U.S. Code Cong. & Admin. News 1982, p. 2807, 2871-72. (Emphasis added.) Moreover, Congress intended that all conservation plans contain amendment procedures to protect against unforeseen circumstances such as the geotechnical problems corrected by the amendment here. As the legislative history indicates: It is also recognized that circumstances and information may change over time and that the original plan might need to be revised. To address this situation the Committee expects that any plan approved for a long-term permit will contain a procedure by which the parties will deal with unforeseen circumstances. H.R. Rep. 97-835, 97th Cong. 2d Sess. 31-32, U.S. Code Cong. & 6 Admin. News 1982, p. 2807, 2872. (Emphasis added.) Accordingly, City must be viewed as having acted in an administrative capacity. As in Friends of Mount Diablo, the supreme legislative authority has established a policy of statewide, even nationwide concern. As in Friends of Mount Diablo, the legislative scheme called for the formation of a local entity or plan -- in that case LAFCO, here the HCP -- to "watchdog" and to carry out the legislative goals. And, again, as in Friends of Mount Diablo, the proposed referendum challenges the action of local government to which enforcement powers had been delegated in approving a proposal implementing the already approved plans. 6 A copy of the legislative history is attached to the Goldsmith Declaration as Exhibit 5. CENTRAL RECOi::;~DS - 32 - WiLE NO..' .Y-/P.--~-- -g'~" 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 Here, the legislation declaring national policy established the means for that policy to be carried out on the local level by the adoption of conservation plans. That legislation further required that those same plans include amendment procedures to remedy unforeseen circumstances. As a signatory to the HCP and an agency required to approve amendments to the HCP, City acted as an arm of Congress in helping to protect endangered species. City thus acted in an administrative capacity in approving Resolution 156-85. As the Court noted in Friends of Mount Diablo, 72 Cal. App. 3d at 472, "the conclusion is inescapable from the history of the events that petitioners' real quarrel is with the rezoning itself", an event which they had not challenged. Similarly, supporters of the referendum here simply seek to stop any and all development of the South Slope of San Bruno Mountain. That legislative decision was previously approved and the time to challenge it passed long ago. The latest delay tactics of the Project's opponents should be rejected. -33 - CENTRAL RECOR, DS FILE NO,-'L~/~ Q xC//-/~;~' 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 IV. CONCLUSION For all the reasons stated herein, Petitioners respectfully request the Court to grant the Writ of Mandate to compel City to cease taking any further action to hold the municipal referendum election on Resolution 156-85. September 30, 1985 Dated: Respectfully submitted, HELLER, EHRMAN, WHITE & McAULIFFE ELLMAN, BURKE & CASSIDY By: Peter H. Goldsmith Attorneys for~ W. W. Dean Associates and Visitacion Associates -34- 1 2 3 4 5 6 7 8 ]0 13 ]4 16 18 20 21 22 23 24 25 26 WILLIAM W. STERLING PETER H. GOLDSMITH HELLER, EHRMAN, WHITE & McAULIFFE 44 Montgomery Street, Suite 3000 San Francisco, California 94104 Telephone: (415) 772-6000 Attorneys for Petitioner W. W. DEAN & ASSOCIATES HOWARD N. ELLMAN JOHN D. HOFFMAN ELLMAN, BURKE & CASSIDY A Professional Corporation One Ecker Building, Suite 200 San Francisco, California 94105 Telephone: (415) 777-2727 Attorneys for Petitioner VISITACION ASSOCIATES IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN MATEO W. W. DEAN & ASSOCIATES, a California corporation; VISITACION ASSOCIATES, a joint venture, Petitioners, Ve CITY OF SOUTH SAN FRANCISCO, a municipal corporation; CITY COUNCIL OF THE CITY OF SOUTH SAN FRANCISCO; BARBARA A. BATTAYA, in her capacity as City Clerk Of The City of South San Francisco, Respondents. CIVIL NO. PETITION FOR WRIT OF MANDATE (CCP § 1085) CENTRAL RECOROS FILE NO.: ..~/.-~,~' 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3. Respondent City of South San Francisco ("City") is a municipal corporation of the State of California organized and existing under the general laws of this State. City has general governmental jurisdiction over the South Slope Property, which is located within its boundaries. 4. Respondent City Council of the City of South San Francisco ("City Council") is the duly elected and acting governing body of City. 5. Respondent Barbara A. Battaya ("City Clerk") is the duly elected and acting City Clerk of City. Pursuant to statute, City Clerk has certain duties with respect to the organization and conduct of municipal elections in City. B. STATEMENT OF FACTS 6. Petitioners VA and Dean, respondent City, the County of San Marco ("County"), the State of California, acting through the Department of Fish & Game and the Department of Parks and Recreation, the United States Fish and Wildlife Service ("USF&WS"), the City of Daly City ("Daly City"), the City of Brisbane ("Brisbane"), and other owners and developers of lands on San Bruno Mountain are parties to a certain "Agreement With Respect To The San Bruno Mountain Area Habitat Conservation Plan ("HCP Agreement"), which Agreement was executed in November 1982 by all parties other 2 CENTRAL RECOROS 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 than USF&WS, and on March 4, 1983 by USF&WS. The HCP Agreement sets forth the agreements of the parties thereto with respect to a habitat conservation plan for San Bruno Mountain known as the San Bruno Mountain Area Habitat Conservation Plan ("HCP"). The purpose of the HCP, as stated in the HCP Agreement (Recital C., p. 6), is to provide for the indefinite perpetuation of the Mission Blue [butterfly] and to protect habitat of . . . other Species of Concern [on San Bruno Mountain], including provision for the establishment of public ownership of sufficient habitat area and funding for the ongoing maintenance of such habitat so that portions of the San Bruno Mountain Area may be excluded from such habitat area and be devoted to urban uses .... " A true copy of the HCP Agreement is filed herewith as Exhibit A to this Petition. 7. On November 15, 1982, City Council adopted its Resolution No. 139-82, which authorized the City Manager of City to execute the HCP Agreement on behalf of City. Said Resolution was a legislative act of City, in that said Resolution provided for City's adoption of a plan and policy to protect the habitat of certain endangered species and other species of concern located within the boundaries of City, and to permit certain other areas to be devoted to urban uses in the manner provided for by the HCP and the HCP III 3 CENTRAL RECOI:~D:~ I~'1 I__1~ NO.: 2 4 $ 6 7 8 9 ~0 ].2 ].3 }4 15 ].6 ].7 ]8 ].9 2O 2]. 22 23 24 25 26 Agreement. A true copy of said Resolution No. 139-82 is filed herewith as Exhibit B to this Petition. 8. On November 15, 1982, City Council adopted its Resolution No. 140-82, which authorized the filing by City of an application to the USF&WS for the incidental taking of Mission Blue butterflies and certain other endangered species in accordance with the HCP, under Section 10(a) of the Endangered Species Act, as amended. A true copy of said Resolution No. 140-82 is filed herewith as Exhibit C to this Petition. 9. On December 2, 1982, City Council adopted its Resolution No. 159-82, approving the Terrabay Specific Plan for the development of seven hundred forty-five (745) residential units and for commercial development of portions of the South Slope Property, in accordance with the -conditions in said Resolution and the provisions of the HCP. Dean applied for and obtained said specific plan approval from City. Pursuant to said approval, Dean is required to construct or otherwise provide for extensive public improvements at Dean's expense, including a new fire station, a major recreation center, an extension of Hillside Boulevard, other major roadway improvements, and major storm drainage facilities and improvements. Resolution No. 159-82 was a legislative act of City, in that City thereby adopted and approved a plan and policy for the residential and 4 CENTRAL RECOi:~,D,'B 1 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 commercial development of the South Slope Property in the manner provided for by the Terrabay Specific Plan and the HCP previously approved by Resolution No. 139-82. A true copy of Resolution No. 159-82 is filed herewith as Exhibit D to this petition. 10. On February 2, 1983, City Council adopted City's Ordinance No. 915-83, amending its zoning ardinance to establish the Terrabay Specific Plan District for the South Slope Property. Said Ordinance was a legislative act of City in that the ordinance provided for the rezoning of the South Slope Property in a manner consistent with the previously- approved Terrabay Specific Plan and the HCP. A true copy of said Ordinance No. 915-83 is filed herewith as Exhibit E to this Petition. 11. On February 16, 1983, City Council adopted its Resolution No. 25-83 in connection with City's approval of the HCP and the HCP Agreement, making findings and adopting a statement of overriding considerations with respect to City's consideration of an environmental impact report and environmental assessment ("EIR/EA"), prepared jointly by County and the USF&WS and previously certified by County under the provisions of the California Environmental Quality Act ("CEQA") (Public Resources code Section S 21000 et seq.). A true copy of said Resolution No. 25-83 is filed herewith as Exhibit F to this Petition. 5 CENTRAL RECOR, D~ ~tL~ NO.j'~,'4;::;~~'~ ! 2 3 4 5 6 7 8 9 10 11 12 13 14 16 17 18 19 20 21 22 23 24 25 26 12. On March 4, 1983, the USF&WS issued Fish and Wildlife Permit No. PRT2-9818 ("Permit") to City, County, Daly City and Brisbane, authorizing said entities as holders of the Permit to provide for the incidental taking of Mission Blue butterflies and certain other endangered species within their jurisdictions, in compliance with the provisions of the HCP and the HCP Agreement. Said Permit was issued under the provisions of Section 10(a) of the Endangered Species Act, 16 USC ~ 1539(a), as amended by the Endangered Species Act Amendments of 1982, P.L. No. 97-304. Said Permit was duly accepted by City in accordance with its terms. A true copy of said Permit is filed herewith as Exhibit G to this Petition. 13. In accordance with the conditions of the Terrabay Specific Plan adopted by City's Resolution No. 159- 82, Dean performed detailed soil and geotechnical studies on the South Slope Property. Said studies revealed several landslides and related problems of soil instability on certain upslope portions of the South Slope Property not to be developed under the Terrabay Specific Plan, and on certain portions of County-owned property located upslope of the South Slope Property. City thereafter required Dean to fund further geotechnical studies and reports by consultants to City in order to develop and implement a satisfactory /// CENTRAL RECORO~ FILE NO..' .~...~ :'? ~:~:;~:::~;' ] 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 geotechnical solution to said problems before Dean's development of the South Slope Property could proceed. 14. The portions of the South Slope Property and the County-owned property on which said geotechnical problems are located were designated under the HCP as 'Conserved Habitat," in which no development or land disturbance in connection with development would be permitted. Accordingly, Dean could not remedy said geotechnical problems, or develop the South Slope Property as permitted under the HCP and the Terrabay Specific Plan, without an amendment to the HCP to permit the temporary disturbance of said lands for the purpose of effecting geotechnical repairs. 15. In order to assess the environmental impacts of the needed geotechnical repairs and of a site-specific amendment to the HCP to permit said repairs, County and the USF&WS initiated the preparation of a supplemental EIR/EA ("EIR/EA Supplement'). Following the preparation and circulation of a draft of the EIR/EA Supplement and review of public comments thereon, County's Board of Supervisors certified the EIR/EA Supplement as adequate under CEQA, and adopted findings and a statement of overriding considerations with respect thereto in its Resolutions No. 46465, 46466 and 46467 of January 10, 1985. 16. On January 22, 1985, County's Board of Supervisors adopted its Resolution No. 46503, approving and 7 CENTRAL RECORDS 3 5 6 7 8 9 ]0 11 12 ]3 ]$ 16 17 18 19 20 21 authorizing County's execution of an agreement dated as of January 22, 1985, among all parties to the HCP Agreement, to provide for an amendment to the HCP to permit site-specific geotechnical repairs on the South Slope Property and adjacent upslope lands (the "January 1985 Agreement."). County executed the January 1985 Agreement on January 22, 1985. 17. On February 13, 1985, City Council held a public hearing on the January 1985 Agreement and the geotechnical amendment to the HCP provided for therein. On February 27, 1985, City Council adopted its Resolutions No. 46-85 and 47-85, making findings and adopting a statement of overriding considerations under CEQA with respect to City's consideration of the EIR/EA Supplement. City Council then adopted its Resolution No. 48-85, approving and authorizing City's execution of the January 1985 Agreement. A true copy of Resolution No. 48-85 is filed herewith as Exhibit H to this Petition. 18. During the period January-March 1985, all parties to the HCP Agreement except Brisbane executed the January 1985 Agreement or signified their willingness to do so. On March 11, 1985, the City Council of Brisbane refused by a 3-2 vote to authorize Brisbane's execution of the January 1985 Agreement. 19. The HCP Agreement specifically provides that during the period June 30, 1985-December 31, 1985 (the 8 CENTRAL RECOR~E~ ~'IL~: NO.: .~'~'~ , 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 "Window Period"), Amendment of the HCP as to the South Slope Property and other lands over which City and/or County has land-use jurisdiction requires the agreement of only City, County, USF&WS, VA and Dean, and no other parties. Following Brisbane's refusal to execute the January 1985 Agreement, City, County, USF&WS, VA and Dean determined to proceed with a site-specific geotechnical amendment to the HCP during the Window Period. 20. Thereafter County and USF&WS initiated the preparation of an Addendum to the EIR/EA Supplement (the "EIR/EA Addendum"), in order to assess the environmental impacts of the proposed geotechnical amendment and all other amendments to the HCP to be proposed during the Window Period. 21. After a public hearing on July 2, 1985, County's Board of Supervisors adopted its Resolutions No. 47081, 47082, and 47083 on July 10, 1985, certifying the EIR/EA Addendum as adequate under CEQA, and adopting findings and a statement of overriding considerations with respect to the EIR/EA Addendum. The Board then adopted its Resolution No. 47084, approving and authorizing County's execution of an agreement, dated as of July 10, 1985, among County, City, USF&WS, VA and Dean, entitled "Amendment to San Bruno Mountain Area Habitat Conservation Plan To Permit Site- Specific Geotechnical Repairs" (the "July 1985 Agreement"). C;ENTRAL RE;C;OROS FILE NO.: .....~ : ~" 1 2 3 4 5 6 7 8 9 10 11 12 ]3 14 15 16 17 18 :19 20 21 22 23 24 25 26 The July 1985 Agreement provides for a site-specific amendment of the HCP (the "Window Amendment") to permit geotechnical repairs in accordance with Alternative 2 discussed in the EIR/EA Supplement, and for specified on-site and off-site mitigation measures in connection therewith. County executed the July 1985 Agreement on July 10, 1985. 22. On the evening of July 10, 1985, following the actions of County set forth in paragraph 21 hereinabove, City Council held a public hearing on the Window Amendment and thereafter adopted its Resolutions No. 154-85 and 155-85, adopting findings and a statement of overriding considerations in connection with City's consideration under CEQA of the EIR/EA Supplement, the EIR/EA Addendum and the Window Amendment. True copies of said Resolutions No. 154-85 and 155-85 are filed herewith as Exhibits I and J to this .Petition. 23. Thereafter, on July 10, 1985, City Council adopted its Resolution No. 156-85, approving the July 1985 Agreement and the Window Amendment, authorizing the Agreement's execution on behalf of City, and directing the City Manager to take all necessary actions to carry out the Agreement and the Window Amendment. A true copy of said Resolution No. 156-85 is filed herewith as Exhibit K to this Petition. On July 15, 1985, the Mayor of City executed the July 1985 Agreement pursuant to said Resolution No. 156-85. 10 CENTRAL RECOI:~D~ 1 2 3 4 5 8 10 ll 12 13 14 15 16 17 18 20 21 22 23 25 26 A true copy of the July 1985 Agreement as executed by City, County, VA and Dean is attached as Exhibit 1 to Resolution No. 156-85 filed herewith as Exhibit K to this Petition. 24. On August 30, 1985, the USF&WS officially transmitted to County its letter amendment of the Permit in accordance with the provisions of the Window Amendment. A true copy of said letter of R.K. Robinson, Acting Chief of the Federal Wildlife Permit Office, to County, and of the Window Amendment to the HCP attached to said letter, is filed herewith as Exhibit L to this Petition. 25. On September 6, 1985, County officially transmitted the USF&WS Permit amendment letter of August 30, 1985 to City, VA, Dean and all other parties to the HCP Agreement, and certified that all required amendment procedures had been completed under the HCP Agreement and that the Window Amendment had taken effect under the Agreement. A true copy of the letter of James P. Fox, District Attorney of County, to said parties, dated September 6, 1985, is filed herewith as Exhibit M to this Petition. 26. After City's adoption of Resolution No. 156- 85, various persons circulated petitions calling for a referendum election on said Resolution, pursuant to the provisions of Elections Code S 4051 et seq. On August 9, 1985, City Clerk executed a certificate pursuant to Elections 11 CENTRAL RECORO,~ ',LE '' ! 2 3 4 5 6 7 8 9 10 ]2 13 ]4 ]5 ]6 17 ~8 ].9 20 21 22 23 24 25 26 Code S 4054 determining that said petition had been signed by a sufficient number of registered voters pursuant to Elections Code S 4051. A true copy of said certificate of City Clerk and of the petition certified therein is filed herewith as Exhibit N to this Petition. 27. On September 3, 1985, the City Attorney of City prepared a memorandum to the City Council, advising the City Council of the City Attorney's conclusion that Resolution No. 156-85 was not a legislative act of City and was not subject to referendum, and recommending that the City Council not submit Resolution No. 156-85 to a special election. A true copy of said memorandum is filed herewith as Exhibit O. 28. On September 11, 1985, City Council adopted its Resolution No. 202-85 by a 3-2 vote, determining to submit Resolution No. 156-85 to a special referendum election on December 10, 1985. A true copy of said Resolution No. 202-85 is filed herewith as Exhibit P. FIRST CAUSE OF ACTION 29. Petitioners reallege as if fully set forth each and every allegation contained in Paragraphs 1 to 28 hereinabove. 30. The actions by City, City Council and City Clerk to call and hold a special referendum election on 12 ] 2 3 4 5 6 7 8 9 10 1]. ].2 ].3 ].4 ].5 ].6 ].7 ].8 19 2O 21 22 23 24 25 26 City's Resolution No. 156-85 are in violation of legal duties owed by each of said respondents to petitioners VA and Dean. Respondents have no legal authority to conduct a municipal referendum election, or to expend public funds of City in connection therewith, upon an act of City Council which is not a legislative act. Resolution No. 156-85 is not a legislative act of City Council. 31. Petitioner VA, as a party to the HCP Agreement and as the owner of the South Slope Property, and petitioner Dean, as a party to the HCP Agreement and as the holder of an option to acquire said Property and of entitlements from City to develop said Property, each has a direct and beneficial interest in the enforcement of respondents' legal duties. VA and Dean will be adversely affected by the suspension of said Resolution No. 156-85 during the pendency of said election, by having to expend money, time and effort in support of Resolution No. 156-85 at said election, and by the purported repeal of said Resolution if a majority of those voting does not vote in favor of said Resolution at said election. 32. Petitioners have no plain, speedy and adequate remedy in the ordinary course of law, other than the relief sought by this Petition, to compel the performance of respondents' legal duties not to hold a municipal referendum election on Resolution No. 156-85, and not to expend public funds in connection therewith. 1 3 CENTRAL RECOR'O~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 33. Petitioners have been obliged to retain their respective attorneys of record herein in order to prepare this Petition and to prepare such other papers and take such other actions in connection therewith as are necessary to obtain the issuance of a writ of mandate by this Court. Petitioners seek herein to inforce an important right affecting the public interest in that the citizens of City have a right that City not incur the expense of holding a referendum election upon an act of City which is not a legislative act and is not subject to referendum. Issuance of the writ of mandate requested herein by Petitioners will confer a significant benefit on the general public of City, in that City will be prevented from engaging in such illegal and improper public expenditures. An award of attorney's fees to Petitioners for the enforcement of said right and benefit to the general public is appropriate, in that Petitioners have been obliged to incur a disproportionate financial burden in retaining their attorneys and in filing and prosecuting this proceeding in order to provide for such enforcement. Petitioners are therefore entitled to an award of attorney's fees against respondents pursuant to the provisions of Code of Civil Procedure S 1021.5. III III III 14 CENTRAL RECORD~ 1 2 3 5 6 7 8 10 11 12 13 15 16 17 18 19 20 21 PRAYER FOR RELIEF Wherefore, Petitioners pray that this Court: 1. Issue its alternative writ of mandate and order to show cause, commanding respondents to vacate the provisions of City Council Resolution No. 202-85 calling for a special election, to take no action to hold a municipal referendum election on City Council Resolution No. 156-85, and to make no expenditures of public funds in connection therewith, or to show cause, if any there be, at a time and place fixed by the Court, why they have not done so and why a peremptory writ of mandate should not issue. 2. Issue its peremptory writ of mandate, after said hearing, commanding respondents to vacate the provisions of City Council Resolution No. 202-85 calling fOr a special election, to take no action to conduct a municipal referendum election on Resolution No. 156-85, and to make no expenditures of public funds in connection therewith. 3. Award Petitioners their costs of suit, including reasonable attorney's fees as provided for in Code of Civil Procedure S 1021.5; 22 /// 23 III III 26 !11 15 CENTRAL RECORDS 3 5 6 7 8 9 ]0 12 ]5 16 17 18 19 20 21 22 23 24 25 26 4. Grant Petitioners such other and further relief as the Court finds just and proper in the circumstances. Dated: September ~O, 1985 Respectfully submitted, WILLIAM W. STERLING PETER H. GOLDSMITH HELLER, EHRMAN, WHITE & McAULFFE HOWARD N. ELLMAN JOHN D. HOFFMAN ELLMAN, BURKE & CASSIDY By: Peter H. Goldsmith Attorneys for Petitioners W. W. DEAN & ASSOCIATES and VISITACION ASSOCIATES 16 CENTRAL REC;OROa ,,,o..... 2 3 4 5 6 7 8 9 ]0 1! 12 13 ].4 ]5 16 ].7 ]8 ]9 20 2]. 22 23 24 25 26 VERIFICATION I am the President of Visitacion Associates, one of the Petitioners herein. I have read the foregoing Petition for Writ of Mandate and know its contents. The same is true of my own knowledge except as to any matters stated upon information and belief, and as to those matters I believe it to be true. Executed this ~-~--day of September, 1985 at San Francisco, California. I declare under penalty of purjury that the foregoing is true and correct. 17 CENTRAL RECORDS I~lU!: NO.' ~"~----~-~ ! 2 3 4 5 7 8 ]0 1! 12 14 15 18 20 21 22 23 24 25 26 VERIFICATION I am the President of W. W. Dean & Associates, one of the Petitioners herein. I have read the foregoing Petition for Writ of Mandate and know its contents. The same is true of my own knowledge except as to any matters stated upon information and belief, and as to those matters I believe it to be true. Executed this 27th day of September, 1985 at San Mateo, California. I declare under penalty of perjury that the foregoing is true and correct./~"~/ z~///,~,~/~.~ ~William W. Dean 1 2 3 4 5 6 ? 8 9 10 ]l 12 15 17 WILLIAM W. STERLING PETER H. GOLDSMITH HELLER, EHRMAN, WI~ITE & McAULIFFE 44 Montgomery Street, Suite 3000 San Francisco, CA 94104 Telephone: (415) 772-6000 Attorneys for Petitioner W. W. Dean & Associates HOWARD N. ELLMAN JOHN D. HOFFMAN ELLMAN, BURKE & CASSIDY A Professional Corporation One Ecker Building, Suite 200 San Francisco, CA 94105 Telephone: (415) 777-2727 Attorneys for Petitioner Visitacion Associates IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN MATEO 18 19 W. W. DEAN & ASSOCIATES, a California corporation; VISITACION ASSOCIATES, a joint venture, Petitioners, V® : CITY OF SOUTH SAN FRANCISCO, 20 ! a municipal corporation; CITY COUNCIL OF THE CITY OF SOUTH 21 SAN FRANCISCO; BARBARA A. BATTAYA, 22 24 25 26 in her capacity as City Clerk Of The City Of South San Francisco, Respondents. SOUTB SAN FRANCISCO CITIZENS FOR OUR MOUNTAIN, Intervenor. No. 300837 PEREMPTORY WRIT OF MANDATE CENTRAL RECORO$ 2 3 4 5 6 7 8 9 10 1], ].2 ].3 ].4 15 ]6 TO: CITY OF SOUTH SAN FRANCISCO, CITY COUNCIL OF THE CITY OF SOUTH SAN FRANCISCO, AND BARBARA A. BATTAYA AS CITY CLERK OF THE CITY OF SOUTH SAN FRANCISCO, RESPONDENTS: After hearing and determination by this Court that you have failed to perform your legal duties to vacate and set aside Resolution No. 202-85 of the City Council of South San Francisco calling for a special referendum election on Resolution No. 156-85 of the City Council of South San Francisco on December 10, 1985, to take no action to hold said referendum election and to make no expenditures of public funds on said election, judgment has been entered in this proceeding ordering that a peremptory writ of mandate issue under the seal of this Court. THEREFORE, you are commanded immediately on receipt of this writ to vacate and set aside your Resolution II No. 202-85 calling for a special referendum election on ]7 I Resolution No. 156-85 of the City Council of South San 18 ~i Francisco on December 10, 1985, to take no action to hold said referendum election and to make no expenditures of i: public funds on said election. i~ You are further commanded to serve and file a written return to this writ on or before November 1, 1985. 23 24 25 1 l 2 3 4 $ 6 7 8 9 10 11 12 13 14 15 16 17 ,I 18 19 20 22 j~ i 24 i~ WITNESS: the Superior Court. The Bonorable Thomas M. Jenkins, Judge of Dated: October __, 1985 Marvin Church Clerk of the Superior Court By Deputy Clerk CENTRAL RECORO$ rILE N 0..' ~-~-.'~;;~ WILLIAM W. STERLING PETER B. GOLDSMITH HELLER, EHRMAN, WHITE & McAULIFFE 44 Montgomery Street, Suite 3000 San Francisco, CA 94104 Telephone: (415) 772-6000 I0 11 13 14 1S 16 18 19 Attorneys for Petitioner W. W. Dean & Associates 8OWARD N. ELLMAN JOHN D. HOFFMAN ELLMAN, BURKE & CASSIDY A Professional Corporation One Ecker Building, Suite 200 San Francisco, CA 94105 Telephone: (415) 777-2727 Attorneys for Petitioner Visitacion Associates IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN MATEO W. W. DEAN & ASSOCIATES, a California corporation; VISITACION ASSOCIATES, a joint venture, Petitioners, We CITY OF SOUTH SAN FRANCISCO, a municipal corporation; CITY COUNCIL OF THE CITY OF SOUTH Respondents. SOUTH SAN FRANCISCO CITIZENS FOR OUR MOUNTAIN, Intervenor. SAN FRANCISCO; BARBARA A. BATTAYA, ) in her capacity as City Clerk Of ) The City Of South San Francisco, ) No. 300837 JUDGMENT GRANTING PEREMPTORY WRIT OF MANDATE CENTRAL 1 2 3 4 5 7 8 10 11 13 15 16 17 18 19 ~0 25 26 This matter came on regularly for hearing before this Court on October 18, 1985 in the courtroom of the Honorable Thomas M. Jenkins, Judge, Department 15, pursuant to the verified petition of petitioners W.W. Dean & Associates and Visitacion Associates and the alternative writ of mandate issued under the seal of this Court on September 30, 1985 and served on each of the respondents and the interuenor in the manner provided by law. Peter H. Goldsmith and John D. Hoffman appeared as attorneys for petitioners W.W. Dean & Associates and Visitacion Associates, Robert J. Lanzone and Colleen Doherty appeared for the respondents City of South San Francisco, City Council of the City of South San Francisco, and Barbara Battaya, as City Clerk of the City of South San Francisco, and Ann Broadwell appeared as attorney for intervenor South San Francisco Citizens For Our Mountain. The Court having reviewed the verified petition for writ of mandate, the answer of respondents to said petition, the complaint in intervention of South San Francisco Citizens For Our Mountain, the exhibits and documents submitted by the parties as the record on the petition, the points and authorities, declarations and other papers submitted by the parties, and having heard argument of counsel, and the cause having been submitted for decision, 1 CENTRAl- RF_.COR~ 1 ,3 5 7 8 10 11 ~3 15 17 18 NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that: 1. The petition is granted and a peremptory writ of mandate shall issue under the seal of this Court, commanding respondents City of South San Francisco, City Council of the City of South San Francisco, and Barbara A. Battaya, as the City Clerk of the City of South San Francisco, to vacate and set aside Resolution No. 202-85 of the City Council of the City of South San Francisco calling for a special referendum election on Resolution No. 156-85 of the City Council of South San Francisco on December 10, 1985, to take no action to hold said election, and to make no expenditures of public funds on said referendum election. 2. Each party to this proceeding shall bear its own costs and attorneys' fees. Dated: October , 1985 Honorable Thomas M. Jenkins Judge of the Superior Court 20 21 23 !', 24 The foregoing judgment was entered on October 1985, in the Judgment Book, Volume , Page . Marvin Church Clerk of the Superior Court 25 26 By Deputy Clerk 2 CENTRAL ,,L~ NO.: 1 2 3 4 5 WILLIAM W. STERLING PETER H. GOLDSMITH HELLER, EHRMAN, WHITE & McAULIFFE 44 Montgomery Street, Suite 3000 San Francisco, California 94104 Telephone: (415) 772-6000 Attorneys for Petitioner W. W. DEAN & ASSOCIATES 6 7 8 9 HOWARD N. ELLMAN JOHN D. HOFFMAN ELLMAN, BURKE & CASSIDY A Professional Corporation One Ecker Building, Suite 200 San Francisco, California 94105 Telephone: (415) 777-2727 10 11 12 Attorneys for Petitioner VISITACION ASSOCIATES IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 13 FOR THE COUNTY OF SAN MATEO ]4 W.W. DEAN & ASSOCIATES, ) a California corporation; ) ]5 VISITACION ASSOCIATES, a joint ) venture, ) ]6 ) Petitioners, ) ]7 ) v. ) CITY OF SOUTH SAN FRANCISCO, a ) ]9 municipal corporation; CITY ) COUNCIL OF THE CITY OF SOUTH SAN ) 20 FRANCISCO; BARBARA A. BATTAYA, ) in her capacity as City Clerk Of ) 21 The City of South San Francisco, ) ) 22 Respondents. ) ) CIVIL NO. EX PARTE APPLICATION FOR LEAVE TO FILE MEMORANDUM OF POINTS AND AUTHORITIES IN EXCESS OF 25 PAGES 24 Petitioners W. W. Dean & Associates and Visitacion 25 Associates ("Petitioners") hereby apply to the Court for leave to 26 file a Memorandum of Points and Authorities in excess of 25 pages. Petitioners intend to file a Petition for Writ of Mandate and supporting papers, including its Memorandum of Points and Authorities, requesting the Court to issue a writ of mandate against Respondents City of South San Francisco, the City Council, and its City Clerk (collectively "City") to compel Respondents to take no further action to hold a municipal referendum election on citY Council's Resolution No. 156-85. This Resolution approves a minor amendment to a habitat conservation plan formulated pursuant to the Federal Endangered Species Act in order to facilitate planned development and enhancement of endangered species on the South Slope of San Bruno Mountain. Petitioners allege that the resolution is an administrative act of the City Council and therefore is not subject to referendum. Petitioners seek leave to file a memorandum in excess of the 25-page limit because of the complex factual background preceding City's decision to submit the Resolution to special election. This complex factual history pertains to various legislative actions of City and agreements between various parties pertaining to the habitat conservation plan and the planned development. Because of the nature of Petitioners' challenge to the holding of the referendum election, it is necessary to present to the Court a thorough and complete explanation of this complex background in order for the Court to determine whether the action of City in approving the Resolution was administrative or legislative. /// -2- ! 2 3 4 $ 6 7 8 9 10 12 13 ]4 16 17' 18 20 21 22 23 24 25 26 Petitioners further note that the Memorandum of Points and Authorities exceeds the 25-page limit by only 8 pages. In these circumstances, Petitioners respectfully request the Court to grant it leave to exceed the 25-page limit and file its Memorandum of Points and Authorities. September 30, 1985 Dated: Respectfully submitted, WILLIAM W. STERLING PETER H. GOLDSMITH HELLER, EHRMAN, WHITE & McAULFFE HOWARD N. ELLMAN JOHN D. HOFFMAN ELLMAN, BURKE & CASSIDY By: 'pe~~~ ~ ter H. G°ldsm th~ Attorneys for Petitioners W. W. DEAN & ASSOCIATES and VISITACION ASSOCIATES -3- SSF 'sPecial election By BII~ ~ ~ Staff W~te~ _ _ ~A ~u~rior Court Judge Friday threw outage sp~c. ~al S~ Mountain. development lss~te election ~eduled for Dec. lOiin ~outh ~ll'~ranc_iscO, sa~dl~.g t.~e City Co~ had no jurisdiction to call it.~'~_ _ 'enki~s, Judge !ffhomas M. J a~ter listdning to .arum. m~en.ts ~0~r about 30 minutes xn ms ~teawoou City courtroom, ruled immedi- ately ,'pr _o~aib. itin. g .th,,e holding the ipe~ial elecnon. Opponents of W.W. Dean & ~ee ELECTION, Page A2 ennSylV-a EleCtion Associates' Terrabay develop- meut on the soutl~ slope argued* that the "beuchi~" amendmemt submitted by Dean earlier tLis Year to curb the Possibility of landslides was a change of such "huge magnitUde" that it cons tuted a legislative, act and thus was subject ~to a South San Fran' cisco referendum election. Jenkins,. however, said the re- cern Habitat Conservation Plan amendment that calls for tLe benching and additional en- croachments intO the rare ar. d endangered .butterfly habitat protected by the plan, "was an- ticipated by the original agree- ment," and there-fore adm!~iswarive in nature and not subject to election. Ann Broadwell, attorney repre- senting CitiZens for Our Moun- tain, the group that circulated petitions calling for the-election, said an aPpeal of Jenkins' dec~- sion would b~ re&de. Senkins said that all he was concerned about was wh~th~r.the HCP amendment was an adminis- trative or legislative act. If it was administrative, or merely carry- ing out some of the terms of the omginal agreement, then the City TO: SUBJECT: FROM: CITY OF SOUTH SAN FRANCLc' D INTER- OFFICE MEMORANDUM Date C~-toh,~,- 18, lqlqS File 12/10/85 Election Set Down by Judge Jenkins City Clerk COPIES TO: At 3:15 p.m. today's date I called the Enterprise Journal and learned from Will Thomas, Editor, that Judge Jenkins had set aside the Special Election of 12/10/85. By telephone I call Shirley Coughlin, County Clerk's Office, and Diamond to inform them of the above to forstall any typesetting charges they might have antic- ipated to begin for the Special Election. I explained that I had nothing in writing at this point. Barbara A. Battaya CENTRAL RECORDs AS/SS 205 OFFICE OF THE ~;T'f CLERK (415) 877-8518 October 15, 1985 Ms. Marie McKechnie Sequoia Systems 400 2nd Street, 2nd Fi. San Francisco, CA 94107 Dear Marie: In that yesterday was the close of the public examination period herein please find the documents needed for the December 10, 1985 special municipal election: Ba]lot Question from the City Attorney City Attorney's Analysis of Measure R Rebuttal To Argument In Favor Of Measure R Rebuttal To Argument Against Measure R - Signed by Mayor Richard A. Haffey and Vice Mayor Roberta Cerri Teglia Argument In Favor Of Measure R Ballot Argument Aga%nst Measure R If I can be of further assistance please call. Very truly yours, Barbara A. Battaya City Clerk Attachments CENTRAL 400 G~AND AVENUE - P.O. BOX 711 - 94083 OFFICE OF THE CiTY CLERK (415) 877-8518 October 10, 1985 Mr. Marvin Church County Clerk/Recorder County of San Mateo County Government Center Redwood City, CA 94063 Subject: Special Election, December 10, 1985 Dear Mr. Church: Enclosed are the following documents: A certified copy of Resolution No. 220-85, entitled "A Resolution Requesting County Clerk of San Mateo County to Render Specified Election Services," adopted by the South San Francisco City Council at their regular meeting held October 9, 1985. e An executed original of the Services Agreement for the Cit3 of South San Francisco for the Special Election to be held on December 10, 1985. Very truly yours, Barbara A. Battaya City Clerk BAB:cg Enclosures 400 GRAND AVENUE - P.O. BOX 711 - 94083 CENTt~AL RECORDS \.~ ~ J~l OFFICE OF THE CITY CLERK (415) ~77-8518 October 10, 1985 The Honorable March Fong Eu Secretary of State State of California Public Market 1230 "J" Street Sacramento, CA 95814 Subject: City of South San Francisco Special Election December -10, 1985 Dear Ms. Eu: Please find enclosed a certified copy of Resolution No. 202-85, entitled "A Resolution Calling for a Special Election on a Referendum Against a Resolution Passed by the City Council Concerning the South Slope of San Bruno Mountain, to be Submitted to the Voters of the City of South San Francisco," which was adopted by the South San Francisco City Council at their regular meeting held September 11, 1985. Very truly yours, Barbara A. Battaya City Clerk BAB:cg Enclosure CENTRAL RECORD.~ 400 GRAND AVENUE - P.O. BOX 711 - 94p83 TO: SUBJECT: FRO~ CITY OF SOUTH SAN FRANCL O INTER-OFFICE MEMORANDUM Date October 9, 1985 The Honorable City Council Special Municipal Election, December 10, 1985 COPIES TO: City Clerk City Manager (w/attch.) City AttoFney . (w/attch.) Please find attached a copy of the newly signed pages for the primary argument and rebuttal argument in opposition of ballot proposition R at the Special Election to be held 12/10/85. Barbara A. Battaya BAB:cg Attachments AS/SS 205 The undersigned authors of the rebuttal argument against ballot propo- sition R at the Special Election for the City of South San Francisco to be held on December 10, 1985, hereby state that such rebuttal is true and correct to the best of their knowledge and belief. Raymond Latham Jame~egan Do~ee~' Dated: The undersigned authors of the primary argument against ballot proposition R at the Special election for the City of South San Francisco to be held on December 10, 1985, hereby state that.such argument is true and correct to the best of their knowledge and belief. Dougl as q~utl er d ame~.X~eegan ~c~ Doris R. Agee TO: SUBIECT: FROM: CITY OF SOUTH SAN FRANCIS" INTER-OFFICE MEMOHANDUM D te October 7, 1985 City Attorney Rebuttals for the 12/10/85 Special Election City Manager City Council Jim Keegan City Clerk Friday, October 4, 1985 was the close of rebuttals and at 4:29 p.m. the City Manager filed a rebuttal with the sig- natures of the Mayor and Vice Mayor, ten minutes later he came in and changed the rebuttal. Friday, October 4, 1985 Jim Keegan came into the office at 4:16 p.m. to file his rebuttal with four signatures and waited until Margaret M. Warren came in to be the fifth signature - which came about. The following questions arose, for which I need your legal opinion as soon as possible: 1. Can a rebuttal be changed after submission to the Clerk without the signers having initialed the change? Can rebuttals have signers other than those that signed the argument if they were members of the Committee that circulated the referendum petition? I would appreciate your attention to this matter as soon as possible due to the fact that the ten day e~amination period began after the filing of rebuttals. Barbara A. Battaya Attachments AS/SS 205 TO: SUBJECT: FROM: CITY OF SOUTH SAN FRANCIS~,~ OFFICE MEMORANDUM .... : October 7, 1985 Date REBUTTALS FOR THE 12/10/85 SPECIAL ELECTION color, s TO:Hon. City Counci 1 City :Manager City Attorney This memorandum responds to yours of October 7, 1985 regarding the same subject in which you request the answers to two questions as set forth below: QUESTIONS PRESENTED: 1. "Can a rebuttal be changed after submission to the Clerk without the signers having initialed the change?" 2. "Can rebuttals have signers other than those that signed the argument if they were members of the Committee that circulated the referendum petition?" CONCLUSIONS: Inasmuch as Elections Code Section 5350 requires that all arguments concerning measures be accompanied by a form statement certifying that the argument is true and correct to the best of their knowledge and belief and signed by each author of the argument, it is not good practice to allow changes in arguments after submission unless the signors of those arguments initial the change, or you are otherwise satisfied that they are aware of the change and approve of it. Rebuttal arguments should be signed by the persons filing t~e primary argu- ments. DISCUSSION: Elections Code Section 5350 states that all arguments concerning measures filed pursuant to Devision 5 of the Elections Code shall be accompanied by a form statement, to be signed by each author of the argument. The form state- ment is required for primary or rebuttal arguments in favor of or against a proposition and amounts to a statement by the authors that such argument is true and correct to the best of their knowledge and belief. Once an argument has been submitted to you along with such a certification it should not be changed by someone other than the authors, unless the third party obtains the initials of the authors or otherwise proves to your satisfaction that the authors have seen the change and approve of it. 2. Elections Code Section 5010 and following governs the filing of arguments concerning City measures. Section 5014.5 states, in relevant part: AS/SS 205 "(a) If any person submits an argument against a city measure, and an argument has been filed in favor of the city measure, the clerk shall immediately send copies of that argument to the persons filing the argument in favor of the city measure. The persons filing the argument in favor of the city measure may prepare and submit a rebuttal argument not exceeding 250 words. The clerk shall send copies of the argument in favor of the measure to the persons filing the argument against the city measure, who may prepare and submit a rebuttal to the argument in favor of the city measure not exceeding 250 words. The rebuttal arguments shall be filed with the clerk not more than 10 days after the final date for filing direct arguments. Rebuttal arguments shall be printed in the same manner as the direct arguments. Each rebuttal argument shall immediately follow the direct argument which it seeks to rebut." (Emphasis added.) Although the signators of the primary argument might have been members of the Committee that circulated the referendum petition, the copy sent to me does not indicate they signed the primary argument against the measure as representatives of the Committee. The signatures on the primary argument against the measure appear to be those of four individuals. Section 5014.1 states: "A ballot argument or, if applicable, a rebuttal argument which includes in its text the name of a person, other than the author of the argument, who is represented as being for or against a measure, shall not be accepted unless the argument is accompanied by a signed consent of such person. The consent of a person, other than an individual, shall be signed by an officer or other duly authorized representative. "Person" as used in this section means any individual, partnership, corporation, association, committee, labor organization, and any other organization or group of persons. The principle behind Section 5014.1 appears to be the prevention of individuals fraudulently indicating that one other than the author of the argument {including a "Committee") agrees with the argument. Since the consent of an officer or other duly authorized representative of the Committee that circulated the referendum petition is absent,and the text of the prima~ argument does not indicate that the Committee agrees with the prima~ argument, it appears clear that the signators of the rebuttal argument should be the individuals who signed the prima~ argument against the Measure R. Z~you have further questions or require further assisstance on this matter, ~ K. Rogers, dr. Cl~y Attorn~ RKR/ep CITY ATTORNEY'S ANALYSIS OF MEASURE R I. EFFECT OF REFERENDUM A. A yes vote on "Measure R" approves the City Council's adoption of Resolution No. 156-85 and allows an amendment to the "Agreement with Respect to the San Bruno Mountain Area Habitat Conservation Plan," described in Section II below, and related acts, to occur. B. A no vote on "Measure "repeals Resolution No. 156-85, and the Amendment and related acts would not occur. C. Repeal of the Resolution further means, under State Law, that for one year from the date of repeal, the City Council cannot adopt a resolution approving the same or similar amendment to the Agreement. II. OPERATION OF THE MEASURE The measure, if passed, would approve an amendment to the Agreement, the San Bruno Mountain Area Habitat Conservation Plan, and a Federal Permit issued under Section lOa of the Endangered Species Act authorizing disturbance of butterfly habitat for purposes of development (jointly called "HCP"). The HCP, adopted in 1982, authorized amendments of this type at three year intervals. After HCP approval, detailed studies and on-site testing performed for development planned for the South Slope and "Bowl" area of San Bruno Mountain (Terrabay) revealed the extent of landslide repair necessary above the development area. Without landslide repair, development of Terrrabay consistent with the Specific Plan cannot proceed. The current HCP does not allow taking of endangered species in designated preserved habitat areas shown in the HCP. Since the landslides are within those areas, the developer must seek an amendment to the HCP. Ci~NT~Ak. ~r, COt~$ -1- ,LE ,,,,o.: There are ten landslides in preserved butterfly habitat areas. Five are located above residential areas on the South Slope, and five are above t~e commercial zone in the "Bowl" area. Repair of the landslides can be accomplished in various ways, involving engineered backfill of earth, retaining walls, and the elimination of housing units. Engineered backfill and retaining wall%are mitigation measures approved by the Board of Supervisors and the City Council in certifying the Environmental Impact Report for the Terrabay Project in November, 1982. The Amendment approved by Resolution No. 156-85 was selected from among eleven (11) alternatives, after review of geotechnical and biological studies and other aspects of an Environmental Impact Report/Environmental Assessment. The selected amendment, modifies the HCP to reduce the heights of vertical cuts by importing additional fill material. Five retaining walls would be constructed to ~old landslides (two above residential areas and three above the commercial zone). All other landslides would be removed and replaced with engineered fill. A total of twenty-four units would be eliminated from the development. Building permits for nineteen units on the upper elevations of one residential neighborhood would be held in abeyance pending detailed review by geotechnical engineers for one year prior to a decision to proceed with construction. The grading would be unbalanced requiring 66,000 cubic yards of material to be imported. III. EFFECT OF THE MEASURE ON EXISTING LAWS This measure, if passed, would have no effect on existing laws. ARGUMENT IN FAVOR OF MEASURE South San Francisco voters are urged to vote yes on Measure R to allow for engineered slope repairs on San Bruno Mountain. These repairs are essential for the safety and welfare of future residents to Terrabay whose taxes will finance the management and operation of the Habitat Conservation Plan and ensure the contin~ existence of the endan~ed butterfly species. The City Council, San Mateo County Board of Supervisors, and the United States Fish and Wildlife Service have already approved the amend- ment after finding that the slope repairs would not disturb the butterflies in any significant way. Following extensive public hearings, the City Council approved the amendment and selected a method of slope repair which eliminated 24 dwelling units from the previously approved Terrabay develop- ment. We also concluded that it was economically impracticable to redesign the project to scale it down to about one-half of its approved size (745 units). In addition to the loss of needed housing, the smaller project could not support the approximately $12,000,000 worth of public improvements required by the City. The City would have some development on the mountain, but would lose many of the following benefits: (1) The extension of Hillside Boulevard; (2) Major drainage relief to Hillside Boulevard area; (3) New fire station (4) Recreation center with indoor swimming pool and lighted playing fields; (5) A day care facility; and (6) Funding for Oyster Point Railroad and Freeway overcrossing project. A yes vote on Measure R will be consistent with the vote~ decision in 1981, and numerous public agency decisions approving limited development on the lower parts of the mountain while retaining most of it in public open space. We respectfully request that you vote yes on this important measure. Richard A. Haffe¥, Mayor Roberta Cerri Teglia, Vice Mayor Emanuele N. Damonte, Councilmember Gus Nicolopulos, Councilmember CENTRAL RECORD,~ The undersigned authors of the primary argument in favor of ballot proposition R at the Special election for the City of South San Francisco to be held on December 10, 1985, hereby state that such argument is true and correct to the best of their knowledge and belief. Signed: o .~ M1ce mayor Councilmember Councilmember Date: ARGUMENT IN FAVOR OF MEASURE R South San Francisco voters are urged to vote yes on Measure R to allow for engineered slope repairs on San Bruno Mountain. These repairs are essential for the safety and welfare of future residents to Terrabay whose taxes will finance the management and operation of the Habitat Conservation Plan and ensure the contin~ existence of the endan~ed butterfly species. The City Council, San Mateo County Board of Supervisors, and the United States Fish and Wildlife Service have already approved the amend- ment after finding that the slope repairs would not disturb the butterflies in any significant way. Following extensive public hearings, the City Council approved the amendment and selected a method of slope repair which eliminated 24 dwelling units from the previously approved Terrabay develop- ment. We also concluded that it was economically impracticable to redesign the project to scale it down to about one-half of its approved size (745 units). In addition to the loss of needed housing, the smaller project could not support the approximately $12,000,000 worth of public improvements required by the City. The City would have some development on the mountain, but would lose many of the following benefits: (1) The extension of Hillside Boulevard; (2) Major drainage relief to Hillside Boulevard area; (3) New fire station (4) Recreation center with indoor swimming pool and lighted playing fields; (5) A day care facility; and (6) Funding for Oyster Point Ra!lroad and Freeway overcrossing project. A yes vote on Measure R will be consistent with the vote~ decision in 1981, and nt~erous public agency decisions approving limited development on the lower parts of the mountain while retaining most of it in public open space. We respectfully request that you vote yes on this important measure. Richard A. Haffey, Mayor Roberta Cerri Teglia, Vice Mayor Emanuele N. Damonte, Councilmember Gus Nicolopulos, Councilmember C£NTEAL RECOE~ The undersigned authors of the primary argument in favor of ballot proposition R at the Special election for the City of South San Francisco to be held on December 10, 1985, hereby state that such argument is true and correct to the best of their knowledge and belief. S i gned :~ ~o~_~o ~~ 3;ice Mayo~r ,/ Councilmember Councilmember Date: BALLOT ARGUMENT AGAINST MEASURE R The amendment to the Habitat Conservation Plan passed on July 5th by the City Council is a disservice to the citizens of South San Francisco. When this project was approved, the developer promised that the slopes of San Bruno Mountain above the development would be left natural and untouched. Now, because of landslides and slope instability that the developer "discovered" after he obtained approval for his project, he wants to grade huge benches in the mountainside. This amendment will permit: Severe grading to re-engineer the mountain slopes 400 - 600 feet high. That's as high as the Bank of America tower in San Francisco. * This grading will take the form of ugly "benches" that will be 30 - 40 feet high with tops l0 feet wide. Two concrete retaining walls that will be l0 feet high and each at least 200 feet long. The benching of the mountain will go over halfway up the mountainside. The grading cannot guarantee safety for the homes and families placed below the landslide areas. CENTRAL RECORDS FILE NO.: .....,~..,..'~...<~ g None of these severe measures would need to be taken if common sense were applied. It makes more sense to move the houses out of harm's way. It makes more sense to redesign the project than to redesign the mountain. The issue is not whether or not to have housing. The real question is: will the houses be safe? This insensitivity to the land should not be tolerated by the citizens of South San Francisco. The land should not be made to conform to development; rather, development should always conform to the land. Protect our mountain! Protect our community! Insure safe housing. Vote "NO" on Measure R. The undersigned authors of the primary argument against ballot proposition R at the Special election for the City of South San Francisco to be held on December 10, 1985, hereby state that such argument is true and correct to the best of their knowledge and belief. Dougl as LB'utl er Raymdnd Latham Jame~.N~eegan Doris R. Agee Dated: Signed by: _'0 ]Ot'JJO i~BUTTAL TO ARGU]",~NT IN FAVOR 0F I,~ASU!-{:~ _R Benching will np~t guarantee safety for those living below land- slide areas, in 1982, two children were killed when a landslide crashed dorm over hillside benches, burying homes below. E~en Dsm~es & Moore, the City's o~m geotechnical consultant warned about "the inevitable geotec~nical problems with such a site.'" The only sure way to guarantee a safe development is to build homes where they are not threatened. Although the developer claims that the only alternative to benching San Bruno Mountain is to cut the development in half, there were many other alternatives presented during public hearings. Benching was chosen n0> because it is the only way to make the project sa£e - but because it is the cheapest! Voting no on this measure means that developer Dean and the City will have to choose a better way to deal with the slope problems. It does npt necessarily meem that the co~mnunity facilities will be lost. It wi~l~ mean that we will get a better and sa£er development. Dean is the only developer on San Bruno Mountain who did not perform in-depth studies o£ slope stability be£ore planning his development. This is his responsibility. Now, he is asking our community to pay £or his mistake by allowing the beauty o£ the mountain and our tovm to be destroyed. CENTRAL RECORD~I "~_ ~ NO.: .~....,~...?_~__.____,, Benching San Bruno Mou~tain will mean a drastic, permanent and unnecessary change to South San Francisco's main scenic backdrop, and a major part o£ our community's heritage. We urge you to vote N.O ! ~ ~~O~'~h ~ The undersigned authors of the rebuttal argument against ballot propo- sition R at the Special Election for the City of South San Francisco to be held on December 10, 1985, hereby state that such rebuttal is true and correct to the best of their knowledge and belief. Raymond Latham Jam~egan Dated: SPECIAL ELECTION - 12/10/85 REBUTTAL TO ARGUMENT AGAINST MEASURE "R" Facts do not support the allegations of opponents to Terrabay: 1. Grading and benching are not new - most of it was included in the approved 1982 Specific Plan. Safety is paramount - Geotechnical experts hired by City recommended the safety measures to protect homes. The HCP amendment is needed to permit the temporary disturbance of a very small number of butterfiles to implement those safety improvements. 3. The mountain ridge line varies in height from 1100 to 1160 feet. 4. The tops of the highest homes in Terrabay will be approximately 320 feet. k~5~-rl~' /00 ~--I-- 5. The highest benches will be at 460 feet ~ and will be ,-..~_-.:~.~iy Most residents of South San Francisco will not see the slope repair work unless they are in the Hillside/Randolph area. Those who do, may not think it more unsightly than the landslide scars, especially when re- vegetated with native plants. The City and County established a joint powers authority to further "guarantee" home safety through adequate drainage structures and proper hillside maintenance. 8. Opponents of Terrabay should know that leaving the slopes "natural and untouched" is not compatible with safety. Following voter approval of Terrabay in 1981, the City Council insisted upon careful land-use planning, provision of necessary street, drainage and public safety improvements, and some desirable recreational amenities for public enjoyment. We should now move to accomplish those goals. You are urged to vote YES on Measure "R," CENTRAL RECORDW The undersigned authors of the rebuttal argument in favor of ballot proposition R at the Special election for the City of South San Francisco to be held on December 10, 1985, hereby state that such argument is true and correct to the best of their knowledge and belief. Date: SPECIAL ELECTION' 12/10/85 REBUTTAL TO ARGUMENT AGAINST MEASURE "R" Facts do not support the allegations of opponents to Terrabay: 1. Grading and benching are not new - most of it was included in the approved 1982 Specific Plan. Safety is paramount - Geotechnical experts hired by City recon~nended the safety measures to protect homes. The HCP amendment is needed to permit the temporary disturbance of a very small number of butterfiles to implement those safety improvements. 3. The mountain ridge line varies in height from-1100 to 1160 feet. 4. The tops of the highest homes in Terrabay will be approximately 320 feet. 5. The.highest benches will be at 460 feet and Will be l'~ss than 100 feet long. e e Most residents of South San Francisco will not see the slope repair work' unless they are in the Hillside/Randolph area, Those who do, may not think it more unsightly than the landslide scars, especially when re-- vegetated with native plants, The City and County established a joint powers authority to further "guarantee" home safety through adequate drainage structures and proper hillside maintenance. Opponents of Terrabay should know that leaving the slopes "natural and untouched" is ~o~. compatible with safety, Following vote? approval of Terrabay in 1981,.the City Council insisted. upon careful land-use planning, provision of necessary street, drainage and public safety improvements, and some desirable.recreational amenities for public enjoyment. We should now'move to accomplish those goals, You are urged to vote YES on Measure "R." sta xx.t October 9, 1985 To: Subject: ACTION: The Honorable City Council Special Municipal Election - December 10, 1985 Resolution ~m~ ~a~%,~ RECOMMENDATION: It is recommended that the City Council adopt the attached Resolution requesting the County Clerk of San Mateo County to render specified election services for the Special Municipal Election to be held on December 10, 1985. DISCUSSION: This Resolution authorizes the County Clerk, through a Municipal Services Agreement, to perform specified election services in preparation for the above stated election. Barbara A. Battaya City Clerk BAB:cg Attachments EXHIBIT A TO RESOLUTION NO. 220-85 ADOPTED CITY OF SOUTH SAN FRANCISCO SPECIAL ELECTION - DECEMBER 10, 1985 SERVICES AGREEMENT Hereinafter set forth below are the services that may be rendered by the County Clerk incident to preparation for and conduct of the special election to be held December 10, 1985 by the City of South San Francisco. A. SERVICES FURNISHED BY COUNTY CLERK (1) Consolidate Precincts: Set consolidaCed precincts and supply list for legal publication by City. City to advise as to number of county pre- cincts to be consolidated (maximum registration per consolidation) and number of voting machines to be used per precinct. (2) Precinct Indexes: Furnish precinct indexes, by consolidated precinct, to the Affidavits of Registration of eligible voters (3 copies for pre- cinct supplies, I copy for City and I copy for Election Office files). (3) Polling Place Notices/Labels: Prepare and address for mailing to eli- gible voters. Includes stock. Inserting Election Matter to be mailed to eligible registered voters, or affix labels, if applicable. Delivery to Post Office for mailing. (Postage to be provided by City Clerk.) (4) (5) Select Polling Places: Including performance of whatever field work may be necessary to complete such selection, prepare, process and mailing of polling place agreement forms. List to be supplied to City Clerk for appointment by City Governing Body not less than 30 days prior to the election, and for legal publication. Select Election Officers: (1 Inspector, 3 Judges each polling place) - Including substitute election officers. Prepare forms, mail applica- tions, process applications upon return, prepare election officer appointment list, prepare and mail appointments to election officers. City Clerk to be supplied list for appointment by City Governing Body not less than 30 days prior to the election, and for legal publication. (6) Precinct Supplies: Optional Items Provided - Flags, special letter to inspector and absentee information. Services required to prepare pre- cinct packets with additional items. Chuck Absentee applicatiofr.-s+unatures. g. INFORMATION REQUIRED OF CITY CLERK: (1) Notice of Election which includes following information: Date of Election, Official Name of Election, Hours the Polls will Open and CENTRAL RECO~ FILE: NO,~ ,, '~""~...~ Close. Also, copy of Measure. (2) Consolidated Precincts: City Clerk to advise County Clerk of number of County Precincts and/or maximum re§istration to be included in setting up consolidated precincts. (3) Request for Indexes of Registration by committees. SPECIFIED ELECTION ACTIONS TO BE PERFORMED BY CITY CLERK AND EXCLUDED FROM SCHE3ULE OF COUNTY CLERK SERVICES: (1) Argument filings. (2) Legal publications: Responsibility of City Clerk and payment to be made by City. (3) Official Designation of Consolidated Precincts, Polling Places and Appointment of Election Officers by City Council. All Election Officer and Polling Place Fees to be paid by the City. (This would include any possible custodian fees where schools are used as polling places.) (4) Absentee Voting: Processing of absent voter applications, mailing of absent voter ballots and voting in Clerk's office to be handled by City Clerk. - (5) Absentee Canvass is responsibility of and will be made by City Clerk. (6) Semi-Official Canvass is responsibility of and will be made by City Clerk. (7) Official Canvass to be made by the City Governing Body. (8) City will be responsible for compliance with statutory requirements as set forth as the responsibility of the City Clerk in the Political Reform Act of 1974. (9) The conduct of the election remains the responsibility of the City Clerk. Performance of Services hereinabove specified in Section A are at alt times considered to be under direction of the City Clerk and the County shall assume no special authority or responsibility in the con- duct of the election designated to the City under provisions of the Elections Code, the Federal Voting Rights Act or such other law governing the conduct of such election. TERMS AND CONSIDERATION Term: This schedule shall be in effect for the performance of specified ser- vices incident to the preparation and holding of the Municipal Elections to be held on December 10, 1985. In the event the County is unable to perform services required under this Agreement, as a result of employer/employee relation conditions, vendor conditions or other conditions beyond the control of the County Clerk, the County will be relieved of all obligations under this Agreement. -2- CgNTi-~AL Consideration: In consideration of the performance of the aforementioned ser- vices and supplies provided by the County Clerk, the City shall pay to the County Clerk a sum equal to the actual cost of such services and supplies. 10-9-85 City of South San Francisco -3- TO: SUBJECT: FROM: CITY OF SOUTH SAN FRANCISC, O INTER-OFFICE MEMO DUM October 2, 1985 Date City Clerk COPIES TO'. REFERENDUM ELECTION TO BE HELD ON DECEMBER 10, 1985 City Attorney City Manager; Hon. City Council This memorandum forwards copies of the City Attorney's analysis of "Measure ~" and the statement of the Measure to appear on the ballot in accordance with the )~quirements of Elections Code Sections 5011 and 10327, respectively. /! If~/ou r~ire furt~ler assistance related to this matter, please call. City At~corney RKR/mm Enc. --4 (j~ AS/SS 205 REFERENDUM MEASURE Shall Resolution No. 156-85 of the City Council, Amending the San Bruno Mountain Habitat Conservation Plan Agreement, be approved? 22839. E SCT,ONS 22839. Statement of acceptance. Each nomination paper shall be accompanied by a verified statement of candidate that he will accept the nomination, and will also accept the office ia t~ event of his election. Such statement shall contain a blank space wherein candidate shall be required to fill in his name in the manner in which he the same to appear on the ballot and also the designation which he wishes to under his name on the ballot, which designation shall conform to one of designations permitted under the provisions of this code relating to the form~ of ballots generally. (Added by Stats. 1961, c. 23, §22839.) . 22840. Filing date; nomination papers. ~ ~ ~ ~' = All nomination papers shall be filed with the city clerk during regular business hours not later than,,5 o.m. on the, 68th da,~ before the election. Until that time. but no later than then, a candidate may v/Rndraw his nomination paper after is filed with the city clerk as provided in this section. · (Amended by Stats. 1978, c. 1376, §16.2.) 22840.5. Time extension if incumbent fails to file. Notwithstanding the provisions of Sections 22836 and 22840, if nomination papers for an incumbent officer of the city are not filed by 5 P.ll~ ~ the 68th ~v before the elec~t~ol[, the voters shall have until.5 d.m. ffl~ [n~ ~:~r~ ~v r~mr~ ~"he e~ctmn tn nnminate £andidates other than the person who was the incumbent on the 68th day for the elective office. This section is not applicable where there is no incumbent eligible to be elected. (Amended by Stats. 1984. c. 1023, §2.) 22841. Form of nominatiot4 papers. The nomination papers and affidavits shall be substantially in the following form: NOMINA~ION PAPER We, the undersigned vote~ of the for the office of of hereby nominate of said city: Name AFFIDAVIT OF CIRCULATOR Residence 'State of California County of J SS. , being duly sworn deposes and says: That he circulated the foregoing petition and saw all the signatures appended thereto and that to the best of his knowledge and belief they are the signatures of the persons whose nameS they purport to be. The signatures were obtained between 19~ and 19_ CENTRAL REC:OI.~ O~3 lrlL£ NQkt ................ 4091. ELECTIONS CODE 4091. Examination of petition. After the petition has been filed, the clerk shall examine the petition in the same manner as are county petitions in accordance with Sections 3707 and 3708, except that, for the purposes of th~s section, references in those sections to the board of supervisors shall be treated as references to the legislative body of the city or city and county. The expenses of signature verification shall be provided by the governing body receiving the petition from the clerk. (Added by Stats. 1981, c. 136, §11.) 409~. Preservation and destruction of petition. The petition shall be preserved and destroyed in accordance with the provisions of Section 3756. (Added b.V Stats. 1981, c. 136, §12.) 4093. Petitions not accepted. Petitions which do not substantially conform to the form requirements of this article shall not be accepted for filing by the clerk. (Added by Stats. 1981. c. 136, §13.) Article 4. Arguments Concerning City Measures 5010. "City measure" definition. As used in this article, "city measure" includes any proposed city charter, any proposed amendment to a city charter, any proposition for the issuance of bonds by the city, any advisory question, or any other question or proposition submitted to the voters of a city. (Amended by Stats. 1976, c. 916, §2.) S011. City attorney to prepare impartial analysis. Whenever any city measure qualifies for a place on the ballot, the governing body may direct the city clerk to transmit a copy of the measure to the city attorney, unless the organization or salaries of the office of the city attorney are affected. The city attorney shall prepare an impartial analysis of the measure showing the effect of the measure on the existing law and the operation of the measure. If the measure affects the organization or salaries of the office of tl~e city attorney, the governing board may direct the city clerk to prepare the impartial analysis. The analysis shall be printed preceding the arguments for and against the measure. The analysis shall not exceed 500 words in length. (Added by Stats. 1976, c. 248, §3.) 5012. If not otherwise provided, voters may submit arguments. If there is no other method provided by general law, or, in the case of a chartered city, by the charter or by city ordinance, arguments for and against any city measure may be submitted to the qualified voters of the city pursuant to this article. If a method is otherwise provided by general law, or, in the case of a chartered city, by charter or city ordinance, for submitting arguments as to a particular kind of city measure, that method shall control. (Added_ by Stats. 1976. c. 248, §3.) 110 5014.5. ~1~- Written arguments. Tt~e legislative body, or any member or members of the legislative body sut~orized by that body, or any individual voter who is eligible to vote on the measure, or bona fide association of citizens, or any combination of voters and ~.~ociations, may file a written argument for 'or against any city measure.~ ~r~ment shall eXCen~d 3?in~?~t~g ir~netrhe. ~he ci~lclerk ~s~all CwaUSe an argument for and an argume ~aga' t e asu e o be p 'nted a ong ith the following ~tement on the front cover, or if none, on the heading of the first page, of the printed arguments: · 'Arguments in support or opposition of the proposed laws are the opinions of tl~e ~.lthOrs.' The city clerk shall enclose a printed copy of both arguments with each sample ballot; provided, that only those arguments filed pursuant to this section shall be pnnted and enclosed with the sample ballot. The printed arguments are "official ma~ter" within the meaning of those words used in Section 10010. Printed arguments submitted to voters in accordance with this section shall be titled either "Argument In Favor Of Measure "or "Argument Against Measure ," accordingly, the blank spaces being filled in only with the ~etter or number, if any, which designates the measure. At the discretion of the cierZ, the word "Proposition" may be substituted for the word "Measure" in such t~tles. Words used in the title shall not be counted when determining the length of any argument. ~Amended by Stats. 1983, c. 812, ~6.5.) MI4. Argument not accepted without names. A ballot argument shall not be accepted under this article unless accompanied 0y me name or names of the person oJ persons submitting it, or, if submitted on oehalf of an organization, the name of the organization and the name of at least one of its principal officers. No more than five signatures shall appear with any argument submitted under tl~ article. In case any argument is signed by more than five persons the s~gaatures of the first five shall be printed. ~Added I~y S~ts. 1978, c. 248, §3.) MI4.1. Argument not accepted without consent from person included in text. A ballot argument or, if applicable, a rebuttal argument which includes in its tezt the name of a person, other than the author of the argument, who is represented as being for or against a measure, shall not be accepted unless the argument is accompanied by a signed consent of such person. The consent of a person, other than an individual, shall be signed by an officer or other duly au~or~zed representative. "Person" as used in this section means any individual, P~rtnership, corporation, association, committee, labor organization, and any ot~er organization or group of persons. (Actded Oy Stats. 1978, c. 172, §3.) MI4.~. Rebuttal arguments. (a) If any person submits an argument against a city measure, and an argument ttas been filed in favor of the city measure, the clerk shall immediately send copies of that argument to the persons filing the argument in favor of the city measure. The persons filing the argument in favor of the city measure may prepare and submit a rebuttal argument not exceeding 250 words. The clerk shall 111 5014.5. ELECTIONS CODE send copies of the argument in favor of the measure to the persons filing the argument against the city measure, who may prepare and submit a rebuttal to the argument in. favor of the citymeasure not exceeding 250 wol'd.~The rebuttal argument~ shall be filecl {vltn ~he clerk not more than l{) days after the final date for filing direct arguments. Rebuttal arguments shall be printed in the same manner as the direct arguments. Each rebuttal argument shall immediately follow the direct argument which it seeks to rebut. (b) The provisions of subdivision (a) shall only apply if, not later than the day on which the legislative body calls an election, the legislative body, by a majority vote. adopts its provisions; in which case, the provisions of subdivision (a) shall apply at the next ensuing municipal election and at each municipal election thereafter, unless later repealed by the legislative body in accord with the procedures of this subdivision. (Added by Stats. 1977, c. 701, ~2.) 5015. Final date for arguments. Based on the time reasonably necessary to prepare and print the arguments and sample ballots and to permit the 10-calendar-day public examination as provided in Article 6 (commencing with Section 5025) for the particular election, the city cl~k shall fix and determine a reasonable date nrior to the election' after wmc~ ho arguments for or against any c~¢~neasure ma,~oe suDmitted~or printing a,,u u~strmunon to the vt~ aq orov~ded in tins article. Arguments ml~y De Cnan~;eu or w~marawn Dy their proponents--until and including the date fixed by the city clerk. (Amended by Stats. 1981, c. 1114, §I0.) 5015. Clerk to select if more than one argument. If more than one argument for or more than one argument against any city measure is submitted to the city clerk within the time prescribed, the city clerk shall select one of the arguments in favor and one of the arguments against the measure for printing and distribution to the voters. In selecting the argument the city clerk shall give preference and priority in the order named to the arguments of the following: (a) The legislative body, or member or members of the legislative body authorized by that body. (b) The individual voter or bona fide association of citizens, or combination of voters and associations, who are the bona fide sponsors or proponents of the measure. (c) Bona fide associations of citizens. (d) Individual voters who are eligible to vote on the measure. (Amended by Stats. 1983, c. 812, ~7.) Article 5. Mailings 5020. One copy of official material per household. Whenever the clerk is required to mail official matter, as provided in Sections 4015, 4015.5, 4018, 5011, 5012, 5013, and 5014.5, only one copy of each such official matter shall be mailed to a postal address where two or more registered voters have the same surname and the same postal address. 112 cODE 5151. T~e provisions of this secti6n shall only apply if the legislative body of the city ~,pts the provisions of this section and the election official conducting the Oectwn approves of the procedure, gadded by Stats. 1978, c. 1279, §2.) Article 6. Public Examination 1~' public examination of arguments, ordinance and analysis. No~ less than 10-calendar days before the clerk submits the official election t~lenals referred to in Sections 4015, 4015.5, 4018, 5011, 5012, 5013, and 5014.5 tot printing, the clerk shall make a copy of such material available for public examination in the clerk's office. Any person may obtain a copy of such materials from the clerk for use outside of the clerk's office. The clerk may charge a fee w any person obtaining a copy of the material, which fee shall not exceed the gnual cost incurred by the clerk in providing the copy. During the 10-calendar-day examination period provided by this section, any ,~er of the jurisdiction in which the election is being held, or the clerk, himself or herself, may seek a writ of mandate or an injunction requiring any or all such materials to he amended or deleted. A peremptory writ of mandate or an anlunction shall be issued only upon clear and convincing proof that the material tn question is false, misleading or inconsistent with the requirements of this chapter, and that issuance of the writ or injunction will not substantially interfere ~r~ the printing or distribution of official election materials as provided by law. '12~e clerk shall be named as respondent and the person or official who authored t~e material in question shall be named as real parties in interest. In the case of ~e clerk bringing the mandamus or injuctive action, the board of supervisors of ~e county shall be named as the respondent and the person or official who authored the material in question shall be named as the real party in interest. (Amended by Stats. 1981, c. 1114, ~11.) Chapter 4. District Elections Article L Initiative $1M. Scope o! article. In addition to any other method provided by law, ordinances may be enacted by any district pursuant to this article, except that the provisions of this article ~all not apply to irrigation districts, to a district formed under a law which does not provide a procedure for elections, to a district formed under a law which does not provide for action by ordinance, to a district governed by an election procedure which permits voters, in electing the district's directors or trustees, to cast more than one vote per voter, or to a district in which the directors are empowered to cast more than one vote per director when acting on any matter. (Added t~y Stats. 1978, c. 248, §3.) 5151, "District" definition. For the purposes of initiative and referendum under this chapter, "district" includes any regional agency which has the power to tax, to regulate land use, or to condemn and purchase land. (Added by St~ts. 197~, c. 2~8, §3.) 113 TO: SUBJECT: FROM: CITY OF SOUTH SAN FRANCI~~' ~O INTER- OFFICE MEMORANDUM Date September 26, 1985 The Honorable City Council COPIES TO: City Manager City Attorney Referendum on the Amendment to the Habitat Conservation Plan City Clerk As filers of the Argument In Favor of Measure A attached please find Ballot Argument Against Measure A as signed by Douglas Butler, Raymond Latham, James Keegan and Doris Agee. The document will assist you should you choose to file a rebuttal which is due in the City Clerk's Office Friday, October 4, 1985. If I can be of further assistance, please call. Barbara A. Battaya AS/SS 205 BALLOT ARGUMENT AGAINST MEASURE A The amendment to the Habitat conservation.Plan passed on July 5th by the City Council is a disservice to the citizens of South San Francisco. When this project was approved, the developer promised that the slopes of San Bruno Mountain above the development would be left natural and untouched. Now, because of landslides and slope instability that the developer "discovered" after he obtained approval for his project, he wants to grade huge benches in the mountainside. - This amendment will permit: Severe grading to re-engineer the mountain slopes 400 - 600 feet high. That's as high as the Bank of America tower in San Francisco. * This grading will take the form of ugly "benches" that will be 30 - 40 feet high with tops l0 feet wide. * Two concrete retaining walls that will be l0 feet high and each at least 200 feet long. * The benching of the mountain will go over halfway up the mountainside. The grading cannot guarantee safety for the homes and families placed below the landslide areas. CENTRA. L RC~ None of these severe measures would need to be taken if common sense were applied. It makes more sense to move the houses out of harm's way. It makes more sense to redesign the project than to redesign the mountain. The issue is not whether or not to have housing. The real question is: will the houses be safe? This insensitivity to the land should not be tolerated by the citizens of South S~n Francisco. The land should not be made to conform to development; rather, development should always conform to the land. Protect our mountain! Protect our community! Insure safe housing. Vote "NO" on Measure A. Signed by: OOSION'g'U.j N'g'S 'CS JO 20I.,-L.-IO C ]~ .',. '_-" ~; E' ~ CENTRAL RECORDS OFF)CE OF THE CITY CLERK (4Z5) 877-8518 September 26, 1985 Mr. James Keegan 1244 Crestwood Drive South San Francisco, CA 94080 Dear Mr. Keegan: As a proponent of the Referendum on the Amendment to the Habitat Conservation Plan, attached please find the Argument in Favor of Measure A as signed by Mayor Haffey and Vice Mayor Teglia. The document will assist you should you choose to file a rebuttal which is due in the City Clerk's Office on Friday, October 4, 1985. If I can be of further assistance, please call. Very truly yours, Barbara A. Battaya City C1 erk Enclosures CC: Mr. Douglas Butler (w/encls.) Mr. Raymond Latham (w/encls.) Mrs. Doris Agee (w/encls.) City Council " City Manager " City Attorney " 400 GRAND AVENUE - P.O. BOX 711 - 94083 OFFICE OF THE CITY CLERK (415) 877-8518 September 25, 1985 Mr. Robin Johnson Smurfit Diamond Pkg. Corporation 1030 No. Anderson Road Exetor, CA 93221 Subject: Special Municipal Election of 12/10/85 City of South San Francisco Dear Mr. Johnson: Per our telephone conversation of today's date, enclosed is a copy of the Notice and Proclamation of Special Municipal Election and a copy of the Staff Report to the City Council dated 9/11/85 with attachments on the above-referenced subject. If I may be of further assistance, please do not hesitate to call. Very truly yours, Barbara A. Battaya City Clerk BAB:cg Encl os ures 400 GRAND AVENUE - P.O. BOX 711 - 940~33 TO: SUBIECT: FROM: crt'Y OF SOOTH SAN FRANCISCO INTER-OFFICE Date September 25, 1985 City Clerk DECEMBER 10, 1985 ELECTION TIME TABLE Assistant City Attorney CiTY ~'~;LE~ Honorable City Council AS/SS 205 Your memorandum dated September 19, 1985 regarding +he above referenced subject was received yesterday. In light of the fact that you have established today as the last day to file arguments in favor of the ballot measure in +he City Clerk's office, +his office has researched your actual time requirements. As this office has previously Indicated to you pursuant to my memorandum dated September 13, 1985, Sections 4015 and 4017 of the Elections Code preempt the governmental statutory requirements regarding +he filing of arguments for and against initiative and referendum measures. Those sections specifically provide that the legislative body (in this case the City Council) is to provide the argument in favor of the measure being subjected to the referendum and the circulators of the petition are to supply the argument in opposition to the measure being subjected to referendum. Therefore, there is no legal requirement that anyone else submit arguments either for or against the referendum measure although the State Supreme Court has suggested that others may file arguments where those designated by Sec- tions 4015 and 4017 fail to do so. The rebuttal arguments are likewise provided for by statute in Elections Code Section 4015.5. In establishing the dates for submission of arguments your office is governed by Sec+ion 5015. That section provides as follows: "Based on the time reasonably necessary to prepare and print the arguments and sample ballots and to permit the lO-calendar-day public examination as provided in Article 6 (commencing with Section 5025) for the particular election, +he city clerk shall fix and determine a reasonable date prior to the election after which no arguments for or against any city measure may be submit+ed for printing and distribution to the voters as provided in this article. Arguments may be changed or withdrawn by their proponents until and including the date fixed by the city clerk." Thus, any dates established by your office must be reasonably related to your deadlines for preparing and printing the arguments and sample ballots. I have contacted Mr. Larry Gilbert of Sequoia Pacific whom you have requested to prepare +he printed materials for the special election. He indicates that his company can accept those materials as late as fifty days before +he date set for election. Your present schedule sets a deadline of fifty-six days before the election. Your office has also set for approval a+ this evening's council meeting a resolution requesting the County Clerk of San Ma+eo County to render specified election ser- vices +o your office. I have contacted Marvin Church and he indicates that his office also only requires a fifty day lead time, not seventy-six days. December 10, 1985 Election Time Table Page 2 Apparently your office has elected to ignore the legal advice given to you pur- suant to the memorandum dated September 13, 1985. Nevertheless any time schedule that you do establish must be reasonable and to require that the arguments for the measure being subjected to the referendum be submitted by the City Council at their next regular hearing after the election was set is unreasonable. This office would suggest the following schedule: Date No. of Days Action to be Taken 9/30/85 70 Last date to file arguments in the City Clerk's office 10/10/85 60 Last date to file rebuttals in the City Clerk's office 10/10/85 60 Need Measure/Analysis/Arguments/ Rebuttals/Ballot Question for the 10 day public examination period 10/20/85 50 Last of 10 day public examination period. This office has been advised that you have informed Mr. Keegan that he must sub- mit his argument in favor of the measure as passed by the Council to your office by close of business this date. I clearly indicated to you both by telephone con- versation and the previous memorandum that a referendum puts a measure before the voters to either approve or disapprove. Therefore, Mr. Keegan will be filing the opposition argument in this case. The City Council as the legislative body which passed the initial resolution will be filing +he argument in favor of the measure. As placed on the ballot the voters will be given the choice of either voting to approve the City Council's action as taken or to disapprove it as requested by the circulators of the referendum petition. Thus, a vote for the measure will be in support of the action previously taken by the City Council, whereas a vote against the measure will be a vote to overturn the action previously taken by the City Council. To do otherwise would recreate the situation faced at the previous special election when a vote in favor of the measure was a vote against development and a vote against the measure was a vote in favor of development. This is exactly the situation which the circulators of the referendum petition hope to avoid in this special election. If you have any questions regarding this, please do not hesitate to contact me. Assistant City Attorney RJK/ep Date: To: Subject: From: September 19, 1985 City Attorney cc: City Council City Manager December 10, 1985 Election Timetable City Clerk Pursuant to your request I am submitting the 12/10/85 Election Timetable. Date No. of Days Action to be taken 9/11/85 90 Resolution No. 202-85 adopted by City Council calling a Special Election for 12/10/85. 9/18/85 89-75 9/25/85 Notice of Election pub- lished in E.J. calling for arguments and rebuttals. 9/25/85 76 Last day to file argu- ments in the City Clerk's Office. 10-4-85 66 Last day to file rebut- tals in the City Clerk's Office. 10-4-85 66 Need measure/analys'~s/ arguments/rebuttal s/ ballot question for the 10 day public examination period. 10-14-85 56 Last of 10 day public examination period. If I can be of further assistance please call. Barbara A. Battaya City C1 erk BAB:cg CENTRAL RI:;CORDs F'ILE NO.: OFFICE OF 'THE CITY CLERK (415) 877-8518 September 18, 1985 Marvin Church County Clerk/Recorder Election Department 40 Tower Road San Mateo, CA 94402 Attn: Ms. Shirley Coughlin Re: Special Election on a Referendum Against a Resolution Passed by the City Council Concerning the South Slope of San Bruno Mountain, to BE Submitted to the Voters of the City of South San Francisco Dear Shi rl ey: Attached please find: Resolution No. 202-85 Calling the Special Election Notice of Election Published in the Enterprise Journal When the City Council adopts the Resolution requesting services from the County Clerk for the Election, which will ~be the same as requested for the 10/6/81 elections I will '~forward a certified copy of the Resolution. Please be advised that Court action is being pursued by the Developer to have a Judge put aside the election and as events occur I will keep you advised. Very truly yours, Barbara A. Battaya City C1 erk Enclosures GRAND AVENUE - P.O. BOX 711 ~. 94083 CENTRAl- Sequoia Pacific Systems Corporatio : 400 Second Street, San Francisco, California 94107 Nationwide Suppliers of Quality Products September 16, 1985 Barbara Battaya City Clerk 400 Grand Avenue So. San Francisco, CA 94080 Dear Barbara, Enclosed you will find the estimate for you upcoming Special Election of December 10, 1985. If you have any questions feel free to call me. MM/je Encl. Sincerely, Marie McKechnie Account Executive Election Services Business Forms Systems · Labels Design and Printing · Election Systems and Printing 9/16/85 City of South San Francisco - Special Election December 10, 1985 1. OFFICIAL BALLOTS: $ 2,432.00 22,900 OFF & AV incl pack in E-757 me BOOKLETS: 25,000 10-page books - 2 color FC, Tag BC 4,975.00 PRECINCT SUPPLIES: 27 Sets 56 Cardboard Voting booths 783.00 616.00 AV Supplies & Misc. forms: 500 Sets AV Eps & instr. Misc forms (est) 340.00 100.00 BALLOT PUNCH & Eps Lease: 81 Punches 13,500 Eps 6. DATAVOTE BALLOT COUNTER & OPERATOR 7. Election Officer Classes (Included in above) 4O5.00 150.00 (4,000.00) ~ (_ ..... ) Sub Total $ 13,801.00 Sales Tax Est. freight 300.00 TOTAL $ 14,101.00 CERTIFICATE OF PUBLICATION (2015.5 C.C.P.) in South San Francisco Enterprise Journal This space is for the. County Clerk's Filing Stamp STATE OF CALIFORNIA County of San Mateo I am a citizen of the United States, and a resident of the County aforesaid, over the age of eighteen years, and not a party to or interested in the above-entitled matter and I am during and at all said times, the Principal Clerk of the Printer and Publisher of South San Francisco Enterprise Journal, a newspaper of general circulation, printed and published twice weekly in the City of SOUTH SAN FRANCISCO, County of San Marco, and which newspaper has been adjudged a newspaper of general circulation by the Superior Court of the County of San Mateo, State of California, under the date of December 30, 1952, Case Number 60036; that the notice, of which the annexed is a printed copy (set in type not smaller than nonpareil), has been published in each regular and entire issue of said newspaper and not in any supplement thereof on the following dates, to- wit: September 21, 25, 1985 I certify (or declare) under penalty of perjury that the foregoing is tree and correct. Certificate of Publication A-M-E-N-D-E-D NOTICE AND PROCLAMATION OF SPECIAL MUNICIPAL ELECTION CITY OF SOUTH SAN FRANCISCO A--M--E--N--D--E--D NOTICE AND PROCLAMATION OF SPECIAL MUNICIPAL ELECTION CITY OF SOUTH SAN FRANCISCO NOTICE AND PROCLAMATION ARE HEREBY GIVEN AND MADE by the City Council of the City of South San Francisco, San Marco County, California, that a Special Municipal Election has been called and will be held on Tuesday, the 10th day of December 1985, by Resolution No. 202-85 adopted September 11, 19~5, for the purpose of submitting to the qualifiedvoter~ of said City the following referendum measure: REFERENDUM AGAINST A RESOLUTION PASSED BY THE CITY COUNCIL We, the undersigned residents and registered, qualified voters of the Cit~ of South San Fran* cisco, protest against the adoption of Resolution No. 156-85, by the City Council of the City of South San Francisco, entitled, "A Resolution Approving and Authorizing Execution of an Amendment to the San Bruno Mountain Habitat Area Conservation Plan to Permit Site-Specific Geotechnical Repairs," the text of which is set forth below. We respectfully request that the City Council reconsi- der Resolution No. 156-85 and either repeal it entirely or submit it to the voters, either at a regular municipal election or at a special election called for the purpose. TEXT OF RESOLUTION NO. 156-85: A RESOLUTION APPROVING AND AUTHORIZING EXECUTION OF AN AMENDMENT TO THE SAN BRUNO MOUNTAIN AREA HABITAT CONSERVATION PLAN TO PERMIT SITE-SPECIFIC GEOTECHNICAL REPAIRS "WHEREAS, on July 10, 19~5, this Council conducted a public hearing on a proposed amendment to the San Bruno Mountain Area Habitat Conservation Plan (HCP), the Agreement with respect to the San Bruno Mountain Area Habitat Conservation Plan (RCP Agreement) and a permit issued pur- suant to Section 10(a) of the Endangered Species Act (Section 10(a) Permit), which amendment wpuld permit site-specific geotechnical repairs on the South Slope of San Bruno Mountain; and WHEREAS, this Council has considered the Final Supplemental Environmental Impact Report and Environmental Assessment (Final EIR/EA Supplement) and the Addendum thereto previously certified by the San Mateo County Board of Supervisors, and upon conclusion of said hearing, adopted findings, and adopted a Statement of Overriding Considerations, all in accordance with the California Environmental Quality Act (CEQA) and National Environmental Policy Act (NEPA): and WHEREAS, the Council at said hearing adopted Alternative 2 as identified in the final EIRfEA supplement, as the project to be implemented pursuant to the amendment; and WItEREAS, said amendment, entitled 'Amendment to San Bruno Mountain Area Habitat Conserva. tion Plan to Permit Site-Specific Geoteehnical Repairs' reference to which is hereby made for fur. ther narticulars, has been presented to this Council for its review and approval; and WHEREAS, this Council has reviewed and accepted ti~e Biology Study, required by Section IXB the HCP Agreement, prepared with respect to said Amendment; and ' WHEREAS, this Couneilhas examined and approved said Amendment as to form and content an~ now desires to enter into same; NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of South San Fra~ ,'iseo that 1. Approval of Agreement. 'Phs~ Ao~.~mont .ntitled 'Amendment tn Dated at South San Francisco, California, this 25th day of September 85 Edna O. Donaldson /s/By CERTIFICATE OF PUBLICATION OFFICE OF THE CITY CLERK (415) 877-8518 ~ September18, 1985 Ms. Edna Donaldson San Mateo Times P. O. Box 5400 San Mateo, CA 94402 Subject: Legal Publication - Notice of Special Election {Amended) Dear Ms. Donaldson: Please find enclosed for publication in.the South San FrancisCo Enterprise Journal a Notice of Special Election (3 pages) and per our conversation of this date you will kill the 9/25/85 publication for the Notice of Special Election received 9/13/85. P1 ease publ i sh on: Saturday, September 21, 1985 and Wednesday, September 25,~1985 (twice only) Please acknowledge receipt of the above-referenced publication by signing below and send a Proof of Publication to this Office. Very truly yours Barbara A. Battaya City C1 erk Enclosure The undersigned acknowledges receipt°f the above-referenced advertisement. South San Francisco Enterprise Journal 400 GRAND AVENUE - P.O. BOX 71~, - 94083 A-M-E-N-D-E-D NOTICE AND PROCLAMATION OF SPECIAL MUNICIPAL ELECTION CITY OF SOUTH SAN FRANCISCO NOTICE AND PROCLAMATION ARE HEREBY GIVEN AND MADE by the City Council of the City of South San Francisco, San Mateo County, California, that a Special Municipal Election has been called and will be held on Tuesday, the lOth day of December 1985, by Resolution No. 202-85 adopted September 11, 1985, for the pur- pose of submitting to the qualified voters of said City the following referendum measure: REFERENDUM AGAINST A RESOLUTION PASSED BY THE CITY COUNCIL We, the undersigned residents and registered, qualified voters of the City of South San Francisco, protest against the adoption of Resolution No. 156-85, by the City Council of the City of South San Francisco, entitled, "A Resolution Approving and Authorizing Execution of an Amendment to the San Bruno Mountain Habitat Area Conservation Plan to Permit Site-Specific Geotechnical Repairs", the text of which is set forth below. We respectfully request that the City Council reconsider Resolution No. 156-85 and either repeal it entirely or submit it to the voters, either at a regular municipal election or at a spe- cial election called for the purpose. TEXT OF RESOLUTION NO. 156-85: A RESOLUTION APPROVING AND AUTHORIZING EXECUTION OF AN AMENDMENT TO THE SAN BRUNO MOUNTAIN AREA HABITAT CONSERVATION PLAN TO PERMIT SITE-SPECIFIC GEOTECHNICAL REPAIRS "WHEREAS, on July 10, 1985, this Council conducted a public hearing on a proposed amendment to the San Bruno Mountain Area Habitat Conservation Plan (HCP), the Agreement with respect to the San Bruno Mountain Area Habitat Conservation Plan (HCP Agreement) and a permit issued pursuant to Section lO(a) of the Endangered Species Act (Section lO(a) Permit), which amendment would per- mit site-specific geotechnical repairs on the South Slope of San Bruno Mountain; and WHEREAS, this Council has considered the Final Supplemental Environmental Impact Report and Environmental Assessment (Final EIR/EA Supplement) and the Addendum thereto previously certified by the San Mateo County Board of Supervisors, and upon conclusion of said hearing, adopted findings, and adopted a Statement of Overriding Considerations, all in accordance with the California Environmental Quality Act (CEQA) and National Environmental Policy Act (NEPA); and WHEREAS, the Council at said hearing adopted Alternative 2 as identified in the final EIR/EA supplement, as the project to be implemented pursuant to the amend' ment; and WHEREAS, said amendment, entitled 'Amendment to San Bruno Mountain Area Habitat Conservation Plan to Permit Site-Specific Geotechnical Repairs' reference to which is hereby mad 'or further particulars, has be for its review and approval; and presented to this Council WHEREAS, this Council has reviewed and accepted the Biology Study, required by Section IXB of the HCP Agreement, prepared with respect to said Amendment; and WHEREAS, this Council has examined and approved said Amendment as to form and content and now desires to enter into same; NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of South San Francisco that: 1. Approval of Agreement. The Agreement entitled 'Amendment to San Bruno Mountain Area Habitat Conservation Plan to Permit Site-Specific Geotechnical Repairs' is hereby approved, and a copy of said Amendment is attached hereto as Exhibit '1'. 2. Execution of Aqreement. The Mayor is hereby authorized to execute said Amendment on behalf of the City, and the City Clerk attest his signature thereto. 3. Actions by City Manager. The City Manager is hereby authorized and directed to take all actions and sign all other documents necessary on behalf of the City of South San Francisco, accomplish the Amendment to the HCP, the HCP Agreement and the Section lO(a) Permit to permit the Site-Specific Geotechnical Repairs identified in said Amendment to the HeP. I hereby certify that the foregoing Resolution was regularly introduced and adopted by the City Council of the City of South San Francisco at a regular meeting held on the lOth day of July, 1985, by the following vote: AYES: NOES: ABSENT: Councilmembers Richard A. Haffey, Gus Nicolopulos and Roberta Cerri Teglia Councilmember Mark N. Addiego Councilmember Emanuele N. Damonte ATTEST: /s/ Barbara A. Battaya City Clerk". (Copy of Amendment, Exhibit 1, is available upon request at the City Clerk's Office, 400 Grand Avenue, South San Francisco (415) 877-8518). NOTE IS FURTHER GIVEN THAT: 1. The POLLS shall be opened at 7:00 a.m. and shall be kept open until 8:00 p.m. of said day when the polls shall be closed, except as otherwise pro- vided in Section 14301 of the Elections Code. 2. ARGUMENTS in support of the measure shall be filed with the City Clerk on or before September 25, 1985 and REBUTTAL ARGUMENTS shall be filed with the City Clerk on or before October 4, 1985. 3. THIS SPECIAL ELECTION is not consolidated with any other election on December 10, 1985. By order of the City Council of the City of South San Francisco, County of San Mateo, State of California, at a Regular Meeting September 11, 1985. Dated: September 18, 1985 A. Battaya, City Cler ~/ City of South San Francisco INTER.OFFICE 1VIEMO UM September 13, 1985 D~le TO: SUBIECT: FROlV5 City Manager co~?o~ City Clerk PREPARATION OF TRANSCRIPT FROM 9/11/85 COUNCIL MEETING Assistant City Attorney On September 12, 1985 this office requested that the City Clerk prepare a trans- cript of the proceedings regarding Item No. 15 (Referendum Petition) heard before the City Council of the City of South San Francisco on September 11, 1985. This office was advised that the City Clerk would not be able to prepare said trans- cript due to staff limitations and the fact that her budget did not contain sufficient funds to hire outside assistance. In light of the fact that litigation is eminent on this particular issue this office has taken the precautionary step of contracting for an outside court reporter to review the TV tapes of said meeting and to prepare a formal trans- cript. It is our understanding that the preparation of this transcript should not be charged to this office's budget. Your guidance in this matter is requested. Assistant City Attorney RJK/ep AS/SS 205 TO: SUBJECT: FSOM: CITY OF SOUTH SAN FRANCISCt., INTER-OFFICE MEMORANDUM Date September 13, ~985 · co~ TO: Honorable City City Clerk Si '~.~ Council; City Manager REFERENDUM ELECTION Assistant City Attorney At 5:00 p.m. on September 12, 1985 your office requested, pursuant to a telephone conversation, that this office prepare a synopsis of the proposed referendum measure set for election by the City Council Wednesday, September 11, 1985. You requested that this synopsis be prepared by Friday, September 13, 1985 in order to complete publication prior to September 26, 1985. In response to that request this memorandum sets forth the actual statutory requirements. The time requirement set forth in Elections Code Section 22830 specifying that a notice of election is to be published "not earlier than the eighty-ninth nor earlier than the seventy-fifth day before a municipal election to fill offices: (Emphasis Added) does not apply if the election is only an election on a measure. The relevant statute is Elections Code Section 22835 which provides as follows: "In case of a municipal election on any measure, the City Clerk shall publish the synopsis of the measure in the city pursuant to Section 6066 of the Government Code. If there is no news- paper of general circulation published and circulated in the city, the notice shall be typewritten and copies shall be posted conspicuously within the time prescribed in at least three (3) public places in the city. The letter shall be headed "Measure to be Voted On" in conspicuous type and shall be substantially in the following form: MEASURE TO BE VOTED ON NOTICE IS HEREBY GIVEN that the following measure is to be voted on at the (General or Special) Municipal Election to be held in the City of , on Tuesday, the day of , 19___. (here should follow a synopsis of the measure, or the measure itself) DATED: City Clerk City of AS/SS 205 City Clerk September 13, 1985 Page 2 Government Code Section 6066 provides as follows: "Publication of notice pursuant to this section shall be once a week for two (2) successive weeks. Two publications in a newspaper published once a week or oftener, with at least five {5) days intervening between the respective publication dates not counting such publication dates, are sufficient. The period of notice commences upon the first day of publica- tion and terminates at the end of the fourteenth day, includ- ing therein the first day." Therefore, there is no necessity to publish the notice at this time, and in fact the notice could be published as late as two (2) weeks prior to the election. Furthermore, the synopsis does not have to be published, as a copy of the measure itself would suffice. Please be advised that I have consulted with Daniel Daly, Assistant District Attorney for the County of San Mateo, and he agrees with my analysis. You also indicated that there were certain statutory requirements regarding giving public notice of the right to present arguments for or against the measure. My research reveals no such requirement. Elections Code Section 4057 provides that referendum elections are to be held in accordance with the provisions set forth for initiatives (Sections 4013 to 4020 of the Elections Code). Section 4015 of the Elections Code provides as follows: "The persons filing an initiative petition pursuant to this article may file a written argument in favor of the ordinance and the legis- lative body may submit an argument against the ordinance. Neither argument shall exceed three hundred (300) words in length, and both arguments shall be printed upon the same sheet of paper and mailed to each voter with the sample ballot for the election." (Emphasis Added) Therefore, the entities who will be presenting the arguments for and against the measure are set by statute. In this case those entities are the City Council and the circulators of the petition. Rebuttal arguments are likewise provided for by statute (See Elections Code Section 4015.5). It should be noted that when you are dealing with a referendum which sets an action previously taken by the City Council for vote, that the persons filing the referendum petition would submit a written argument against the action taken by the City Council, while the City Council would file their argument in favor of the action which they have previously taken. In addition, Section 4018 of the Elections Code provides that whenever any ordi- nance or measure is required to be submitted to the voters in an election, the clerk shall cause the ordinance or measure to be printed and must mail a copy of CENTRAL RECORDS FILE NO.= .~ City Clerk September 13, 1985 Page 3 the ordinance or measure with the sample ballot to each voter at least ten {10) days prior to the election, Therefore, the arguments for and against and rebuttal need only be required with sufficent lead time to allow for a printing and mail- ing. It should be noted that Section 4018 of the Elections Code also provides: "If such ordinance or measure exceeds one thousand (1,000) words in length, the local legislative body may direct that a synopsis of the ordinance be prepared, to be mailed to the voters in lieu of the ordi- nance. The snyopsis shall be prepared by the City Attorney unless the ordinance affects the office of the city attorney, in which case the city clerk shall prepare the synopsis... The City Council in its action taken Wednesday night did not direct this office to prepare such a synopsis. In light of the fact that there is no legal requirement to prepare a synopsis of the measure at this time and due to the extremely short notice provided by your office we cannot comply with your request. I have previously requested that you provide us with a schedule of dates in line with your requirements for preparing the printed ballot materials. This office stands ready to work with you and provide such items as are legally required on a timely basis. If you have any questions regarding this matter, please do not hesitate to contact me. Robert J. ~Ka'sper; Assistant City Attorney RJK/ep CENTRAL SUBJECT TO CIT'-' OF SOUTH SAN FRAN INTER-OFFICE MEMORANDUM DATE' City C1 erk PUBLIC HEARING - REFERENDUM PETITION Assistant City Attorney :$C0 September 12, 1985  REPLY j~ INFORMATfON ONlY REQUESTED NO REPLY REQUESTED CC Kindly prepare a transcript as soon as possible of the public hearing held on September 11, 1985, Item No. 15, Referendum Petition, on the Council Agenda} SIGNED ~ Robert J. Kasper, Jr. RJK/ep Assistant City Attorney Kasper DATE I am handinq you d~plication tanes of the O/11/P5 meetina in order ~or vou to enaaae a'~cour% re~orter to do the verbatim transci~t you reauested in that I do not have the time to do it myself. CENTRAL RECORD5 (W~II~,) Rece±~±~ (¥~I~I~O~) Retu~ ~o FICE NO,: (~ZN[) CC o~ D~e (GOLDeNrOD) ~ende~ ~±~e Copy September 11, 1985 TO: Subject: ACTION: The Honorable City Council SUPPLEMENTAL INFORMATION RE: REFERENDUM PETITION (HCP) Motion RECOMMENDATION That the City Council approve a motion to take no action on the petition because it challenges an administrative rather than a legislative act. DISCUSSION The City Clerk has submitted to Council a "CERTIFICATE OF SUFFICIENCY" which states that more than 10% of the City's registered voters have submitted a referendum petition challenging the City's approval of the Habitat Conservation Plan Ammendment. The City Attorney has submitted to Council a memorandum which states that the action challenged by the petition is an administrative rather than a legislative act and is therefore not the proper subject of a referendum and that it should not be submitted to a special election. The City Council is required by law to act upon the submitted petition at your meeting on Wednesday, September 11, 1985. If Council accepts the staff recommendation, the proper course of action is approval of the motion outlined above. Any other action (rescinding of the HCP approval resolution or submitting the referendum to a special election) must be done by resolution. Respectfully submitted, C. Walter Birkelo City Manager CWB:eg September 11, 1985 To: The Honorable City Council Subject: ACTION: Certificate of Sufficiency for the Referendum Against a Resolution passed by the City Council Approving and Authorizing Execution of an Amendment to the San Bruno Mountain Area Habitat Conservation Plan to Permit Site-Specific Geotechnical Repairs 1) Certificate of Sufficiency 2) Memo from City Attorney stating his legal opinion on the Referendum 3) Supp'l. Staff Report from City Manager outlining the procedural options for the City Council DISCUSSION: Attached is the Certificate of Sufficiency for the Referendum Against a Resolution passed by the City Council Approving and Authorizing Execution of an Amendment to the San Bruno Area Habitat Conservation Plan to Permit Site-Specific Geotechnical Repairs received in the City Clerk's Office on August 9, 1985, at 11:16 a.m., and after each signature was stamped with a sequential number for a total of 3,376. County Clerk Marvin Church reported 23,055 registered voters for South San Francisco to the Secretary of State on February 26, 1985. On Thursday, August 29, 1985 I compiled and validated the following cer- tification of signatures: 3,376 Signatures -40 Signature duplications -367 Not Registered Voters -37 Signatures Not Sufficient 2,932 Valid Referendum Signatures Ten percent of' 23,055 = 2,306 and I submit that the 2,932 valid referendum signatures are greater than the 10% required for a referendum. Barbara A. City Clerk BAB:cg Attachments CENT~AL C-E-R-T-I-F-I-C-A-T-E O-F S-U-F-F-I-C-I-E-N-C-Y REFERENDUM AGAINST A RESOLUTION PASSED BY THE CITY COUNCIL (We, the undersigned residents and registered, qualified voters of the City of South San Francisco, protest against the adoption of Resolution No. 156-85, by the City Council of the City of South San Francisco, entitled, "A Resolution Approviny and Authorizing Execution of an Amendment to the San Bruno Mountain Area Habitat Conservation Plan to Permit Site-Specific Geotechnical Repairs", the text of which is set forth below. We respectfully request that the City Council reconsider Resolution No. 156-85 and either repeal it entirely or submit it to the voters, either at a regular municipal election or at a special election called for the purpose.) Received in the City Clerk's Office August 9, 1985 at 11:16 p.m. and after each signature was stamped with a sequential number for a total of 3,376. County Clerk Marvin Church reported 23,055 registered voters for South San Francisco to the Secretary of State on 2/26/85. On Thursday, August 29, 1985 I compiled and validated the following certification of signatures. 3,376 Signatures -40 Signature duplications -367 Not Registered Voters - 37 Signatures Not Sufficient 2,932 Valid Referendum Signatures Ten percent of 23,055 = 2,306 and I submit that the 2,932 valid referendum signatures are greater than the 10% required for a referendum. August 9, 1985 Barbara A. Batta~'a~ City C1 erk C;F.:~'4TRAL. RE:C:ORD~ &ESOLUTZON NO. 202-85 CITY COUNCIL, CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA A RESOLUTION CALLING FOR A SPECIAL ELECTION ON A REFERENDUM AGAINST A RESOLUTION PASSED BY THE CITY COUNCZLCONCERNING THE SOUTH SLOPE OF SAN BRUNO MOUNTAIN, TO BE SUBMITTED TO THE VOTERS OF THE CITY OF SOUTH SAN FRANCISCO WHEREAS, on September 11, 1985, the City Clerk of the City of South San Francisco presented to the City Council of said City a referendum petition con- cerning the South Slope of San Bruno Mountain, entitled "Referendum Against a Resolution Passed by The City Council," hereinafter referred to as "petition," a copy of which is' attached hereto as Exhibit "Al" and IdHEREAS, the petition contains a request for a Special election; and I~IEREAS, the City Clerk on August 29, 1985 certified that the petition was ftled on August 9, 1985 by games Keegan on behalf of the petitioners; and IGIEREAS, the City Clerk further certified that the petition Is sufficient, having the signatures thereon of more than ten percent (105) of the registered voters of the City of South San Francisco; and IdHEREAS, Section 4055 of the Elections Code requ(res that the City Council either repeal the Resolution at the regular meeting at which the petttion ts presented or immediately order a special election to be held not less than etghty-et, ght (88) nor more than one hundred three (I03) days after the date of order,, at which the measure presented in the petit(on shall be submitted to a vote of the voters of the City. NON, THEREFORE, BE ZT RESOLVED that the Cttgy Counct! of the City of South San Francisco does hereby call for a speci~ elect(on to be held on Tuesday, December 10, 1985 for the purpose of presenting :he measure submitted tn the pett'tlon to a vote by the people of the Ctty of South San Francisco, and that the date of this order shall be reflected for all purposes as September 11, 1985. BE IT FURTHER RESOLVED that the City Clerk ts hereby authorized to procure all supplies and make all arrangements necessary for the proper conduct of said election and ts hereby directed to conduct satd electton In accordance wlt~ State law, Including but not 1trotted to the'applicable portions of the Elections Code and Government Code. ! hereby certify that the foregoing Resolution was regularly introduced and adopted by the City Council meeting held on the 11th v ore: AYES: NOES: ABSENT: of the City of South San Francisco at a reqular day of September · 1985 , by the following Councilmembers Mark N. Addiego, Richard A. Halley; and Roberta Cerri Teglta__ Councilmembers Emanuele N. Damonte and Gus Nicolopulo~ None ATTEST: /s/ Barbara A. Battaya City Clerk ]Planning Area= .Southeast Ridge A~ninistr=tive Parcel= South Slope Proj'eck (04) Location ann de$cr~p~ion= The South ~lope Project ~s l~ate~ o~ ~e cornea cE San Bru~ HRuntain, an~ ~s bo=de=eS by ~naolph Avenue, Bayshor~ . 'european annual grass~ an~ contains low~ra~e habitat for ~ Miss~o~ an~ Call.~ Silv~=~o~ but~erflles (S~e Figures 2-04. ~. . eventually b~ turned over to the Pi~ ~era%o= along .%ri~ ~ ~d~turbed permanent dE=turbanas from that antfcipate~ in the Concep= Plan. ..... ~oI~i~l i~ues= ~e site 6~ ~e South Slope Project f~ grasslana dom~nate~ by eurcpe~ annual grasses and contains host plants of the bo~ the Mission Blue and th~ Ca~ippm Stlv~rspo~ buttenflies. %~hile the main ~pula~ion= O~ ~e butterflies are on ~e upper slope=, th,y were found to 'u=ilize the lower . .' Sou~ Slope area-dUrin~ the 1981 riel4 season (Se~ Figures 2-04 D-Z). area i~ also habitat for three ran~ limit or ~ndemic plants, a~a ~= rare plant, Orthocarous florfbun4us Is e~ectea in the ravin=s;' however, it was no~ ~aked du~ing ~e 1981 field ~tu~y, ~: =ubsequont field surveys done species, ~a durin~ '~e course of ~e bio!ogical study ~ule deer, jack Xm~'a~h: Development of the South Slope as speuified ~r~ ~hz Precise 'Plan ~estroy 3.22% 0f the populatioa cE the Missioa Blu~ butterfly and 0.46% o~ the ~pulation of the Cal!ippe S!lverspot butte=fly. X~ will also remove ~abitat now used by ~e butterflies of concern a~d other grassland ~IP Objectives -- Specific C onset?erich Reeds: The HCP approach to ~he South ~Xope is to prevent sudden loss of habi.tat all at once ~y phasing the project so tha~ reclamation of cut and fill slopes with hush plan~ species can begin ~n the first phase before the final phase of developmen~ takes place. APPENDIX A A-I- Operating' Pro-ram .."{.E ECP FOP. PARCEL 2-04, $0t'~ DPE PROJECT Obligations: The landowner/developer has the follow, lng obligations: ]. No construction or conversion to urban uses shall be permitted in the area designated 2-04-02 on Figure'2-04 C- The boundary of ar~ 2-04-02 may be adjusted by the Landowner by not more than fifty {50) feet from the line shown on Figure 2-04 C,'provided, however, that the total area increa~e~ as a result of such adjustment does not exceed ten (10} acres.~ 0ursine. area 2-04- " 02 construction and conversion %0 urban uses may occur ~ubject only to the ''&' bondltions set for~ in Paragraph:2 below. . shallprovi4~ for 't~e fo!lowing: · a. Dedicatio~ o__~ffConserved ~ubitat. ~he L~.~do~,er a~di=ate to the Coun~a~i lands wi~tn~m~i=trative Parcel 2-04 wi~in area 2-04-02 sho~n ~n Figure 2-04.C and as adjusted ~n~o~ner pursuant to Paragraph 1.' Such ~eaioat~on shall be o:~ered by'~e ~n~owner at ~e time o~ receipt.o~ ~o f~rst'grading permit Figure 2-04 J. . HCP Fundin~ Proaram. During the pre-development phase of the HCP, the landowner/developer will contribute to a pre-development ~und. During the project development phase, th~ developer w~ll enter into a contract with the Plan Operator to pay the zea~.onable coat of .supervising ~e HCP' restriction~ on gradin~ a~,~ supervi~in~ reclamation of habitat. Finally, after deveiopment the sha!l obligat~ future residenSs, ~rough C C 6 R's and runnin~ wi~h ~e lane to to an annual assessra~n~ O~ $20.00 per ~welling unit or ~e equivalent adjusted for ~nflation to 1983 ~ol!ar~. ~ funds will be paid to the San Bruno Moun~in' Conservation-~F~nd. See ~apt~r V-B fo= details o~ fundin~ ~ons~ruc~ ~rovision~.. In accordance with Paragraph 1' above,' Landowner shall not disturb any lane In area 2-04-02 except provided in 24 below. In addition, %h~ Landowner ~hall not more ~han one phase per ~ear. Grading phases are ~hown 2-04 I. Reclamation Provisions. l~lth respect to any areas which are ~rad~d or disturbed and thereafter dedicak~d as Conserved Habi~t, the Landowner ~hall prepare m Reclamation Plan for approval City (or County~ as the cas, may be} in accordance wl~h ~ts norma~ standards and ~rocedures for gradin~ permits. These provide for gradigg, erosion and run-off controls, and revegetakion with native grasp!and species approved by the Plan 0pera~or. In ~ddlt~on, the Landowner shall clearly define on the ground ~by snow or two strand ~re fencing or other methods) the limit~ of disturbance anticipated and shall limit the construction disturbance to said limit~ . provided in fencin9 and signing provis~on~ of the MOU and Chapter The fencing shall be constructed at the boundary between the temporarily disturbed areas and the permanently disturbed areas p~-V!S£0 CHAFL'~-R Vri FOR PARCEL '2-04, SO" ~OP~- PROJ£CT shown in ~igure 2-04 G. Ak the time of approval of the reclamation plan(si, those plans shall substitute fo= the more generalized map~ re~erenced in this section.*-. . e. pesticide Control. The Landowner shalI establish covenants and restrictions encumber/nC Development Areas In favor of ~he County and/or Cf~ prghibftlng the use o~ aerial or la,ge-scaLe spraying o~ ' . ~s~fcfdes without ~e approva~ o~ the ~lan ., i. 'Buf~e~. ~ea~- ~e ~nflowne~ shall ~venan~ in favor ct '~ Cl~y .'i SoU~ ~an F~ancfs~ and the ~ to e~babLis~ an~ ~a~ a .- aced of up ~ ~f~ {30] feet in width to p~obec~ urban, uses -' ~ D~v~lopment l~eas, ir-- ~i~e. ~ative plants, ~hich.v~lL ~ l~S~ec~icn, ~e '~nflOwner sha~ in car~inq ou~ Reclamation Plans for am~istrativ~ Parcel 2-04, contract fo~. an i~spec~ ac~ia~ .. .%he County as Plan Operator ~ moni~o= gradinq and revegetation · . >.' activities through ~ompletion of ~ *re~lam~io~ accivitial accept~ o; ~ o~fer of dedication, 3. ~n~ an 0~f--sit~ enhancement p=~ram (described bel6w) which fs geotec~ical proole~s wi~in ~e South ~lope project, The eWnancement program wi~ ~ke ~iace on a ~=~ ~c~e area located fn the easce~n It l= ~!~in ~he S~ .Bruno-N~untain ~tate and County Park ann Is parc of i_.Administrative' Parcel 1-09, See Figures 2-04-K and. L. '"' "~e of~-a~=~ e~ancement area consists 0f grassland habitant-roCky / °utcroppin~s, star=trod areas of brush (mainly 9orse), and eucalyptus '~e part~cu~c site wa~ ~osen for e~aneement because it contalns gOO~ habitat for ~e ai~sfon Blue and Ca,loPe Silvecspot butterflies, flow~e~, '~e area has =~=en:~ become subject to ~orse and eucalyptus.invaslon. " .~e=e ar~ m~y~e=e~ buhches of ~o~ae (approaimately 10 acres] l~ an~' :amon~ ~e larval hcs~ plants of bo~ ~a }fission Blue and Callip9~. ~ont~ol ~ go=se will eventually out compete the butterfly host '~e eucak~tus, ~h~ch are mainly alo~ Guaflalu9~ Canyon Parkway act a= r-xotic Stories Removal, Generally this task involves hand removal o( lnvadin~ patches of got. se, follow up h~rbicide application of stumps, and · ~innln9 of eucalyptu~ t=ees as appropriate. The following specific measures must be followed by the shrub removal contractor. ' mi Prior to the start of the exotic species removal process the boundaries ' o~ ~e site will-be s~ked by the Habitat Manager. · he field supecvl.or will consult vith the ltabitat I. ianac~er as to the priority of gorse' patches, to be .removed. . A-3 ~EVISED CHAPTER VII OF THE HCP FOR PARCEL 2-04, S.~L"rH SLOPE PROJECT C)' Acce-~s to each patch will be cle~rl'! un4erstoo~ and marke~ in the field. d] No heavy equipment wilI be allowed on ~he site without prior permiss[o~ by the Habitat Manager. ' '~ll cut. brush will. be piled up for later burning by the California. Department of Forestry. The Habitat Manager shoul~be consulted as to % th~ be~t area for placing the burn pile~ ' . f) ~! personnel will b~ maa~ aware .o~ sensitive habitat are=s near the-'.' ' gor~e patches... h) ~ Habitat .Manage= w~ll make periodic v~sits to ~e site to assure ~ork is b~in~ don~ properly an~ to answer an~ ~esUio~ which may azl~e. j] At least one spray application of an approved herbicide will be applied to th~ gorse .~tumps. Follow up control will be don~ by the Habitat Container Plan=in~ and Direct Se~dinu of ~o~t Plants. This shoul4 be ~on~ upon succ~ssfu[ con=rol of exotic spe=i~s. To be done undar ~e ~6pervision o~ C~'6e ~bin S~ed Company wi~ plants an4 seeds supplie4 b~ ~hem. Follow uo Wor~ a~ N~e6ed. Continued =ontro~ of reap=outing or res~edin~ gor~ and eucalyptus. ~-Xonitoring ~e growth and butterfly utilization of ~he container plant~ and seedlings. This task will be p~rfo~ by th~ ~abi~t Manager as part of the overall ~CP work pro, ram. . ~e ~anc~ment plan~in~ ~ill take place when ~ Plan ~erator (wi~in five years after th~ removal has taken plaae). The plants and seed needed fo~ ~ ~nhan~m~nt can b~ obtained du~in9 these ~iVe years. The ~upervlsion is required to assure no habitat damage takes place ~uring th~ exotic species removal process. Every hou£ spent on supervision will be billed to the developer. The developer must also provide for the on-site reclamation of any %lide repair d~sturbance as specified in the HCP for temporarily ~isturbed areas. Full costs to be borne by developer as specified in the ECP; a reclamation plan for these areas must be approved by Plan Operator. A-4 The Plan O~erator has the followin~ obligations:- 1. Prepare and execute an annual operating program for the Conserved Habita$ within Administrative Parcel 2-04; 2. ~4onftor the effect of all activities within Development Areas C=.se~ ~abitat .and wi~in the off-site enhancement area' and provide a~vfce ~ direction to'~e ~ndowne= to assist his comp~ance'wit~ the 6bligat~pn~ ~es=rib~a above with respect' %o Aamfnis{ra~%e Parcei 2-04~ '~ Designmte. vegetatfo~ materfa~ for us~ ~n ~clama~on ~lans an~.review such Reclamation Plans submftte~ b= the Landowner with respect ~ ~mfnistrative Parcel ~-04 in a timely fashion to avof~ de~ys in 4. '~ep~ ~dications of ~ns~rv~ Habi~ w~t~{~ Aaminis~a~ve Parcel 2-04. 2-04-0t. This M~nagem~nt Unit comprises the a.reas of permanent disturbance in the South Slou~ Parcel- 2-04-02. This' Mana?ement Unit comprises the temporary' and ~n~istu=bed area~ in the Administra=ive Parcel. FIGURE 14 B, SOUTH SLOPE PROJEC~ PARCEL TOPOGRAPHY .6-7 t.. tE 2-04 D, SOUTH SLOPE ~ ZCT ~'' GE~{ERAL ~OPULATIO~t ANO HABITAT "ISTRISUTIO:-I, 1981 --.HISSIOt~ BLUE °i° 4 . 'FIGU, '-Z-O~, E, SOUTH SLOPE PRO& , ~[ '-, G~:t;ERAL POPUL^TION AND HABITAT DIST~TBUTIOll, 1981 -- CALLIOPE SILYERS?OT 0 o 0 O, -1 A-lA .,..' FIGu,tE 2-04 F, ' DEYELOPHEt(T PLAtl SOUTH SLOPE PROa:CT · A-12 Ul '0 A-14 LU ,,,.I DED i T..',TION 'PHASING. ~ :,-. oo A-15 J DETAI,- · OFF-SITS- E~HANCE,'--'~-~,IT. AREA 'i .: {\,, 'd,' - A-17 · ¢ REVISED CHAgT~-R VI: ?': ;iE i-iC? FOR ?ARCEr- 3-05, CO"I · .'_Ri{ : Planning krea: South_~ast Ridge {2) Aalministcative Parcel: County Park (05) Location and descripbion: The County Park is the largest parcel in .the ~ Southeast Ridge planning area; it comprises the entire ridge p~rtion of the Southeast Ridge and reaches down into Buckeye Canyon [Figures 2-05 A-C~. It has a %dried flora, r~nging from gras~nd on ~e sou.~ slope an4 ridgelin~ 'to brush, and wo~lana on the nor~ side, ' ~ .~.~,rah~= ~e entire ~arcel is ~nea by ~e.Coun%y O~ San Matgo. - " Proj~t: ~'Coun~ has.pro~sea a ~stem o~ hiking tr~ls in khls portion o~ the Park which wt!l be =reahed out o~"existin9 ~[r~ roa~s modified ~o= eas~er use. O~e= ~ ~es~ trails, whine' include, v[s%~ ~~, no par~ fa=il~es are-pFopo=ea ~or ~is 'section of ~e park W~ur~ 2-0B ~). ~raa~g or m~r- disturbance activities re~ired for the South Slop~ development will take place ~ 1.5 acres of. Coun~ Park land. ~e 'tem~rarily graded area~ will be roe!aimed .~ native San Bruno Mountain plant species. S~tu== This is a planned parcel. Biological Issues: ~e Southeast Ridg~ ~rt~on o~ the County .Park contmins much of ~e prime ~4ission Blue and Callippe habitat (See Figures 2-05 D-E}. The south-facing slopes in particular have abu,dant 1up, he, violet, and butterfly nectar plan=s. The area also houses several ~ange limit and endemic plant species, and the rare ~lant OrthocarDus floribundus Is ~pecte4 but was not found during ~n~ Biological Study, 1950-81. In addition to hhe plants, this area cf 2he park is habitat for the San Brtu~o EIEi~ Butterfly an~ ~e ~ay ~eckerspot Butterfly, ~hich was thought to be ext[~%ct on SBM~ and' several other species 6f plants and animals which frequenn grassland and brush. On ~e nornh side, ~uckaye Canyon supports a woodland habitat which is unique ho San Bruno Rountain. ~pact: Since the proposed trails are 'to be created out of existing fire roads, 'there w~l not be a loss of habitat concurrent with trail constructlo~. ImPacts may be'~d ii realignment upgrading ~s. required. ALso, l~ ~is ~rtion of the park t~ heavily patronized and people do ~%ot remain on trails, further impact~ may b~ caused. Grading or minor disturbance activities fo~ ~e South Slope project will disturb. 1.5 acres of liission Blue and ~111~pe Silverspot' butterfly habitat located within %he County Park. parcel,. H~ Ohj~ives -- S~ifi= ~ns~rvaticn ~e~s: T~e County Park is inten~e~ to be used .as a regional recreation area for the surroul~in9 urban centers, inviting people to learn about the unique ecology o[ Sa~ Bruno Mountain. It will also serve as a w~y to preserve that ecology. ~lerefore, :%e.HCP approach to the County Park is to Conserve existing habitat by minimizing the effects of human encroachment. This will be achieved through 'minimal construction and limited access to particula['!y sensitive areas. In order to conserve the habitat which exists i~ ~he park, ca=cruX consideration ~ill have to be given .to trail constluction and use. I~ th[s section of the park, the adjustments necessary to make the trails ~se[uL to park patrons, i.e. turning steep trails into switchback trails, must be carefully considered before initiated; trails should not .destroy large areas A_IR of habitat, or disru~ areas heav~iy u~il!zed by ~he bu~kerflles o~ concern. In addition,, the trails mhoul~ avoid San ~runo Elfin an~ Bay Checkers~t habitat. Once the trails are in ~lace park user= should be.ma~e to keep w~=hin ~he trail boundaries. This could h~ achieved by ~ng ~ns which' d~scrlbe the unique ecology of the locale and r~quire users ~o remain om ~ak proj~c~ ~ese provisions .~n~!u~e constructin~ b tem~rary habitat beyond ~ fen~ areas, and th~ reclamation of ~11 tem~ra~ily aistu=b~ ooerat~ ~ro~ram · Obli~ation-~= The County oE San .~Iateo ha= the followin~ obliqa~ions: 4. 5. Cum?Ii,nee wl~ miuigation measures seU forth in Section~ ~a), ~b}, and (c) o~2 th.~ Opera~ing Program for ~anagemen~ Unit 2-05-0~ Complianc~ wi~n th~ Planning Assistance tequiremen=s se= ~o=th in' Sections (a), (b), ~nd (c) off the Opera,in9 Progrvm for ~ianagemen~ Unit_-" G~-01. Par=ic~pau=on. in ch~ r6guiatory provisions and fundinq program of the Subm~_t a final =rail plan specifically deno~inq the =rails ~ha~ are ~.o _~a r~aiigned or up~rade6 to Plan Operator for Avoi6 any :a~ings of th~ ~an Bruno Ellin and the Bay butt~rflias. .- 6. Obtain approvals of any chan~s in plans or o~her uses which 'alter the current s~ate of th~ parcel as required by ChapUer The Plan Operator has ~he following obligations: 1. F~xecuticn of 'Section (d} of the Operating Pro.~ram for :.lanagement Unit 2-05-01. 2. Advice an~ direction ~o tke Coun%y h% %!mit' ~ompXian~e wi~ ~be · ~eratin~ Pr~r~ for Unit 2-05-01, 3. Timely response to County's Submittal of plam~ 'which require Operator revie~ and approval. 4. Assure that all construction prov~slons r~lat~ng ~o ~he Sou~h Slope project are in affect in the temporarily 9radud areas within ~e County Park property. r ~nagement Unit=: 1. 2-05T01. Management Unit 2-05-01 consists 'o[ ~hls entire section of the park except the a£eas proposed for grading by a. As necessary, modify trail plans ~o zeflec=' areas deemed particularly A-19 ' .R=-VISED C~APT~.R VII O~ FOR PARCEL 2~05, COUN'. ~6RK Sensitive, i.e. rich.in butterfly habitat, heavily used by butterflies, containing rare plants, etc. b. During trail construction, post signs requiring patrons ko remain on trails. c. Monitor patronage use, if it appears that the open spmce ts bein~ 'heavily impacted by users not staying out of sensitive areas, construct fences or patrol trails to enforce parkreguLations. d. At appropriate times of year, monitor plant and ~utte~fl~- '..populations for major ~hanges in distributlon o~ size. · ~-2. 2--05-02. Management Unit 2-05-02 consists of the lands ~o'be ~raded for the Sou~h Slope project and reclaimed.' a. The South Slope deVelo.oer'~ust erecb a tem~ra~y fence at ~e boundary betwee~ the grade.,'area and ~e 9nd~sturbe~ a~a. b. Sign~ must b~ posted on fence which ~tat~e pena~for ~rading beyond ~e fence. c. ~1 graded land must be'reclaimed with plant spoc~s ~pr°ved by the Plan Operator. A-20 i>A.q.C£L C~ A-22 o COUnty?' G.E~:E.RAL POPULATIO:i A;;L~\..,BITAT DISTRI~UTIO~I, 1981 A-24 .... " ~-05 E, COUI'tT¥ PARK ,,- -..~£1'~;:,L POPULA'I']O.'I'A~[J L..~,fAT OISTR[~UT]O~t 1981 -- C:,~.L~ .E S]LVERSPOT A-25 FIF ,~ Z-OS F, COU:ITY "PARK OEYELOP~E:IT PLA:! °e .0 · Planning Area: $outheas'~ Rid.ue (~: Administrative Parcel: Juncus Ravine Location and aescrip~ion: Jun=us Ravine is adjacent to the western borders o~. t~e South Slope and Hillside School p~rce~s, with H~llsiOe Boulevar~ on the south side aha County pa=k !ands to the north. It ~s l~ated at the interface of the ~ick brush on ~ ~astern ~rtio9 of the Mo~ntai9 an~ the gzassl~nd on grassland, bu~ ~s b~ing invaded by brush. ~s parcel is own~ b~ Vis irwin Associates. ]~oject~ Thin parcel is to be dedicated as conserved habitat_ .' Approximately acres o~ land wil-1 be tem~rar~y gra~d by th~ developer o~ the South Slope projec~ Th~s area will be reclaim~ ~o. it~native San Bruno Moon,in Status: ~im i= a planned parcdl. Visi~cio~ Associates will dediczCe th~s parcel to .the puD!ir for ~ark and open sDac~ once. develoDm~n= in the Bouth Slops area is assured. Bi°logical Issues: This area serves as habitat for both =he MissiOn Blue an~ Callippe (See Figures 2-0S D-K). It ~o provides habitat im~r:an= :o other plan=s an~ aaimaLs found on the i. lo~tain--=he upper slopes in particular, as :hey have been subject to ~ess disturbance than cbc lower slopes. ~mpact= Th~ ~=ad~n~ required ~o= ~e Sou~ Slope pro,eot wi~l discu:~ 1.5 acres of grassland haoica:. - -=- area should be maintain~ as open ~pa=~. ' The gradin~ required for the South S~p~ project will he ~eguia~ed ~ ~at project' The~provi~iuns include c~kructin9 a temporary habitat fenc~ a~ %he boundac~'~twe~n temporarily ai~tu~bed areas and undisturbed areas, ~sting signs along ~he fence whi~ ~tate the penal~y ~or grading beypnd the fenc~ areas, and the ~eclamat~n of all tem~rari!y disturbed areas wl~ native plants, obligations: Visi:zcicn Associates has ~e £ollowin9 obits, scions: Prior ~o any c-~ns=rdction uithin Admi.i-~tra~ive Parcel 2-04, the Landowner ~ha.ll provide for the following: a. Dedication of Conserved ~.abitat. The Landowner ~hall agree to . '~edicate to the public all iands ~ithin AdminiStrative Parcel 2-08 Said ~edication shall be 0.ffered by the Landowner at the ~lme of approval of the final subdivisi~ ~p on the las~ .un~eveloped.~c~ion. of Pa:cel 2-04 and shall be acce~t~ by the County u~n cOmPletion .~eclamation activities w~thih M.a~gement Uni~ 2-08-02 and Parcel A-27 RA-V.~-cED C.~XPTE_R VII ~ .~!E HCP FO~ PARCEL ~-08, J~.,CUS~ ~%VI.%~E '2-04 as determined by the 'apPro?r[ate insoector. The Plan Operator has the following obli. gation~: 1. Prepare an~ execute an annual operating program for t]4e Conserved ~ab~tat within Administrative Parcel 2-08; 2. Accept ~edlcations of ~nserved Habitat within Administrative Parcel 2-08,. 3. lssu=e ~at all construction p=ovlsion~ relating to the South Slope pro]act are in a~fech in the ~empo=a=il~ 9faded areas within ~ Juncus except for ~ L5 acres be ~ra~ea for ~e South Slope project. - . 2. 2-08-02. Hanagemenk Unit 2-08-02 consists of the lan0s to be graded The South Slope 6eveloper must erect a temporary £ence at the boundary b~tween the ~raded area and the undisturbed area. Signs nus= be poste~ on fence which state the p~al~v for gra~i~g beyond th~ ~ence. All graded land must be reclaimed with plant species approve~ by ~e ~!an Opera=or. A-28 ~- ~GURE 2-OB B, JUNCUS RA¥IIIE ' PARCEL TOPOGRAPHY ,. 'meter~ 0 ,100 . 200 300 ~ · . /', ~ .'i~ i I1 II. 11 I! I1' 2-08 C, OU~CUS RAVk HAI(AGEME:;T U~(ITS L[G£ND: feet 0 250 500 meters 0 lO0 ~rce$ 2OO · A~31 $OURCE: ' GD;ERAL POPULATI0:t AND ttABITAT D:.STRIBUTI0~I, 1981 -- HISSIO~; BLUE feet 0 250 500 750 1000 meters 0 100 200 300 T~..~a% Reid A$$oc{ate% r ,]RE 2-02 £. JUNCUS RAVINE ' ,GEt~£RAL POP'ULATION A~iD HABITAT DIST~IBUTIO:~, 1981 -- C/',LLIPPE.SILVERSPOT feet 0 250 500 meters 0 100: 75O IO00.i - ~00 · ~00',.~ ~OURCE: lho~as Reid Associates Blologtc&l StUdio I gBl. A-33 : ~ ,~ .'..,, REFERI~DUN AGAINST A P~SOLUT[0N P~ BY T~ CIT~ CO~IL We, the undersl~ residents ~ registerS, ~alifl~ voters of ~e City of ~u~ S~ Francisco· protest ag~st the adoption o[ Resolution No. 156-85, by ~e City Council of the City of ~u~ S~ Fr~cisco, entitle, "A Resolution Approvlnq and Authorizinq ~tion of ~ ~en~ent to the San B~no Ho~tain ~ea H~itat Co~e~ation PI~ to Pe~it Slte-Sp~lfic Geotec~ical RepOts", the text of whi~ is set for~ below. We resp~tfully r~est that the City Council r~onslder Resolution No. 156-85 ~d either repeal it entirely or s~mit It to the voters· either at a r~l~ ~icipal election or at a s~cial elation called for the pu~se. Use ~1~ SIC~iAT~ ItESIDENCS ADDRESS (Number and Street] SIGNATURE RESIDENCE ADDRESS {Number and Street] SIGNATURE RESIDENCE ADDRESS {Number and Street) $IC~qATU~E P~SIDENCE ADDRESS {Number and Street) SIGNATURE RESID~ ADDRESS {Number and Street) SIGNATURE RESID~ ADDRESS (Number and Street) SIGNATURE I~SIDENCE ADDRESS (Number and Street) SIGNATURE I~SIDENCE ADDRESS {~,-~er and Street) SIGNAT--uI~ RESIDENCE ADDRESS (Number and Street) RESIDt~CE ADDRESS {Number and Str~_t) SI~qATUI~ P. ESIDI~qCE ADDRESS (Number and Street) SIGNATURE RESIDENCE ADDRESS {Number and Street) SIGNATURE RESIDENCE ADDRESS (Number and Street) SIGNATURE RESIDENCE ADDRESS (Number and Street) SIG~ATUR~ RESIDENCE ADDRESS (Number and Street) SIGNATURE RESIDENCE ADDRESS (Number and Street) (City, State, Zip Code] PRINT NA~E {City, State, Zip Code) {City, State, Zip Code) (City, State, Zip Code) · {City, State, Zip Code) PRINT ~ · (C~ty, State, Zip Code] · (City, State, Zip Code) PRINT NA~E · (City· State· Zip Code) PR~ ~ iClty, State· Zip Code) {City, State· lip Code) {CitF, State, Zip Code) P~ ~ (City, State· Zip Code) PRI~ ~ (Clty~ State· lip C~e) PRI~ ~E {Clty~ State· Zip Code) (City, State· Zip Code) {City· State· Zip C~e) (OVER FOR TEXT OF RESOLUTION) $IGt~t%TIIEE RESIDENCE ADDRESS (Nu=ber and Street) SI~TURS RESIDENCE ~D~S (N~er ~d Street) SI~ ~ID~ ~D~S (N~er ~d Street) SI~ ~ID~E ~D~S (N~er ~ Street) SI~T~ ~ID~ ~D~ (N~e= ~ Street) {City, State, Zip Code) l~IN~ NAME {City, State· Zip Code) PRINT NAME · {City, State· Zip Code) PRINT NAME · {City, State· Zip Code) · {City· State· Zip Code) Use Ouly' '~ DECLARATI(I~ OF PERSON SOLICITING SIGNATURES ! ama qualified registered voter of the City of South SanFrancisco, California~ ! circulated this section of the petition· and solicited the signatures· and saw the appended signatures being written. To the best of my infouae- tion and belief· each signature ts the genuine signature of the person whose name it purports to be. Ail sig~atures on this section were o bra/ned between the dates of , 1985,'and · 1985. I declare under penalty of perjury that the foregoing ~s true and correct. Signature of Circulator (Full Name): Given Name, Middle Na~e or Initial· Last Name Executed on · 1985, at {Number ~nd Street} Printed Na=e of Circulator (Full Na=e)= GlvanNa~e· Middle Na~e or Initial· Last Name Residence Address of Circulator: VotingAddress at thne of the execution of this declaration: (Number and Street} {Number and Street} (City, State· Zip Code} · (City· State· Zip Code) (City, State, Zip Code) TEXT OFRESOLUTION NO. 156-85: A RESOLUTIONAPPROVINGANDAUTHORIZINGEXECUTION OF ANAMENDMENTTOTHE SAN BRUNO MOUNTAINAREA HABITAT CONSERVATION PLAN TO PERMIT SITE-SPECIFIC GEOTECHNICAL REPAIRS "(1) WHEREAS, on July 10, 1985, this Council conducted a public hearing on a proposed amendment to the San Bruno Moun- tainArea Habitat Conservation Plan (HCP), the Agreement with respect to the San Bruno Mountain Area ~abltat Conserva- tion Plan (HCPAgreement) and a pezmit lssued pursuant to Section 10(a) of the Endangered Species Act (Sectio~ 10(a) Permit), which amendment would permit site-specific geotechnical repairs on the South Slope of San Bruno Mountain; and (1) WHEREAS, this Council has considered the Final Supplemental Environmental Impact Report and Environmental Assess- ment (Final EIR/EA Supplement) and the Addendum thereto previously certified by the San Marco County Board of Super- visors, and upon conclusion of said hearing, adopted findings, and adopted a Statement of Overriding Considerations, all in accordance with the California Environmental Quality Act (CEQA) and National Environmental Policy Act (NEPA); and {i) WHEREAS, the Council at said hearing adopted Alternative ] as Identified in the final fIR/iA supplement, as the project to be lmplemented pursuant to the amendment; and (1) WHEREAS, said amendment, entitled 'Amendment to San Bruno Mountain Area Habitat Conservation Plan to Permit Site-Specific Geotechnlcal Repairs' reference to which Is hereby made for further particulars, has been presented to this Council for its review and approval; and (1) WHEREAS, this Council has reviewed and accepted the Biology Study, requirea by Section IXB of the HCP Agreement, prepared with respect to said Amendment; anti(i) WHEREAS, this Council has examined and approved saidAmendment as to form and con- tent and now desires to enter into same; (i} KOW, THEREFORE, BE IT RESOLVED by the City Council of the City of South San Francisco that: (~) 1. Approval of Agree_~ent. (1) The Agreement entitled 'Amendment to San Bruno Mountain Area Habitat Conservation Plan To Permit Site-Specific Geotechnical Repairs' is hereby approved, and a copy of said Amend- ment ts attached hereto as Exhibit'l'. {i) 2. Execution of Agreement. (II The Mayor is hereby authorized to execute satd Amendment on behalf of the City, and the City Clerk attest his signature thereto. (1) B. Actions by City Manager. (1) The City Manager is hereby authorized and directed to take all actions and sign all other documents necessary on behalf of the City of South San Francisco, accomplish the Amendment to the HCP, the HCP Agreement and the Section 10(a) Permit to permit the Site-Specific Geotechntcal Repairs identified in saidAmendment to the HCP. {i) * * * * * *' (1) I hereby certify that the foregoing Resolution was regularly Introduced and adopted by the City Council of the City of South San Francisco at a regular meeting held on the 10th day of July, 1985, by the following vote: {l) AYES: Councllmembers Richard A. Halley, Gus Nicolopulos and Roberta Cerri Tegalla (l) NOES: Councihnember Mark N. Addiego (II ABS~T: Councilmember Zmanuele N. Demonic (l) ATTEST: /s/ Barbara A. Battaya (~) City Clerk". f'CONTINUED) i,~,~q? ?o s~q BR~qO ~O~TAI~ A~A ,~SlTA? CO~SERVATro~ PLA~ TO PEPa~T S~-oSP~F~C ~r£CH~CAL ~(i} ~his A~J~DHENT TO THE SAN BRUNO ltOUNTAIN AREA HABITA~ CONSERVATION PLA~ and Agreement with respect to the San Bruno Hountain Area Habitat Conservation Plan ('Amendment') is entered into as of · by and among the follo~lng parties: the UNITED STATES FISH AA7) ~ILDLIFE SERVICE ('Service'}; the COUTITY OF S~ HATEOI the CITY OF SOUTH SAN FRANCISCO; VISITACION ASSOCIATES~ a California ~oint venture of Asfac~ Inc. and HcKesson Corporation; and'ti. J~. DEAN ASSOCIATE$~ a California corporation; {~)'Recltals (i} ~HEREAS~ the Parties have entered into an AGREI2iENT HITH PECT TO THE SAN BRUNO HOUNTAIN AREA HABITAT CONSERVATION PLAN ('Agreement') and EASEHENTS FOR ENFORCDiI~ O~ COUIiTY- O~D CONSERVED HABITAT AND STATE-O;NED CONSERVED IiABITA~ ('Conserved Habitat Restrictions')· and the Service bas issued a permit pursuant to Section lO(a) of the Endangered Species Act ('Section lO(a) Permit'} for the purpose of lm~lementing the SAN BRUNO HOUNTAIN AREA HABITAT CONSERVATION PLAN {'HCP')~ and (~) WHEREAS· a condition bas been covered within those lan~s designated as Administrative Parcels 2-04 and 2-05 in Volume I! of the HCP {herelnafter referred to as the 'South Slope Area'J which poses a threat of the occurrence of the geologic hazard o~ and {Ii WHEREAS~ the South Slope Area of potential hazard occurs in part vlti~in areas that have been desJ-g~at~d ~s 'Preserved Habitat' and 'Conserved Hebitat* by.the Agreement; and (S) MHEREAS~ the Sought Slope A~ea must be stebi~l~ in order to provide for the public safety and to prevent the possibility of damage and lnJu~ to existin~ flr~ houses and residences in and belo~ the South Slope Area~ including existing residences across Hillside Boulevard; (Ii 61~REAS· Section IX B of the IiCP Agreement provides that amendments to the HCP· HCP A;reement and Section ~0 permit may be made at three year intervals upon consent and/or approval of the owners of the lands Involved; t~e ~ agent7 having regulating land use authority~ the County of San flateo~ and th~ U.S. Fish and liildllfe Service if ~endment is supported by a biological study demonstrating that the amen{bn~n~ does not c~nflict 'with the P~%7 ~,~' pose of the HCP t° provide for the indefinite long-term perpetuation of the [fission Blue; Callippe Silve~spo~ anti ether species of concern; and (~) IiHEREAS~ ~he necessity for and appropriateness o~ the actions to be undert~ke~ i~, suant to this iimendnent are supported by a geotechnical study ~hich has been prepared bl~ a registered soils el2~lr~e~- end such actioa~ vere identified in the Supplemental EIR/EA~ prupared for th~ Amen(b~ent and certl£1ed by thc Bo~rd o: S~pervisors on ~Ianuar~ lO~ 1985~ as the preferred alternative vhich is necessary to provide for the pt~lic ~afety is an economically and technologically practicable alterna~_lve; a~d (~) hTfI3iFAS; the acl~f.ons tmdertaken pu~s~.r~t lo thi~ Am;ndment have been detetutned by a biological study to satisfy the primary pt~posa of the HCP fo~. i:b~ mite~ long-tern perpetuation of the Hinsiou Blue~ Callip~e Silverspot and o~her Species of Concern; an~ (~] the mltiga, tion measures which vill be undertaken pursuant to this A~endment and are set £o~h In p~agrapb '~ h~ve been determined by a biological study to provide habitat protection essentially eg~ivaleut in blolo~ic~.J the level of habitat 'protection contemplated and assured b~ th~ tlCP as a v. hoIe at th~ ~:l~e, of its &doptJ.oJlf ~-). ~HEREAs~ all necesstt7 .environuental review and approvals have been accomplished in accordance with CE~r and the Federal !~ndangered Species Act~ to include an AdderiduM to the Supple, mental ~IP~F~r ~hic~. evaluate~ the tire impact of all kuo~rn or reasonably foreseeable future amendments to the I~P; and (~) [TrIEREA~ tile Partie.q complied with all processes and obtained all necessary app_~ovals as reguired, by the Agreement in order to effect A=endmeut~ and (~) kT{EREAS· the Parties nov desire to amend the HCP~ the Apreementr the Conserved Habitat. and the Section lO(a) De.nit thereto~ as hereinafter provided: (~) _A~ (~) NO~· TJiI~tEFOREr for and 1.~ tion of the foregoing recitals of fact and other consideration~ the receipt and adeguacy of which fire hereby edged~ the Parties hereto agree as follows'.* (1) 1. Pursuant to the provisions of. the Amendment; tlJe provlsio~ of th H~? as incorporated 'in the Agreement, the Agreement~ the Conserved Habitat ~est. rictions and the Section lO(a) Per~i.t are hereby, amended to petuit those certain actions described in paragraphs 2 and 3 below to remedy t~e 9eolople J~.o in the South Slope area. The provisions of. Chapter VII of the HCP with respect to Administrative Parcels ?.-0;.f and 2-08 are hereby amended in accordance with Appendix A attached hereto and incorporated herein by reference. (1) 2. In order to remedy the geologic hazards tn' the South Slope Area~ ~. H. Dean and As~ociates~ or the o~r~.r of fee title Interest of. any of the South.Slope Area. their/its agents· con~ractors· assignees· or stlccesso~ I.n est~ the County of. San Hateo or the City of South ~an Francisco May unfler~ako those cer~alfl actiono describe~ in t~ Supplements.1 EIR/FA. (~) 3. In order to provide fo~ mitigation of the envlrotmental impacts o£ the activit$,es cribed in paragraph 2 above and to ensure that the vork undertaken pursua~)t to this Amendment are consiste~t l:It~' purposes of. the HCP~ the person or entity undertaking such activities sl~al! provide for t~e mit{g&tion measures cF(bed in. the revised section of Chapter VII of the HCP for the South Slope pro~ect ~2-Oi as contained in Ai~I~-s~l~. A attached hereto. (~) 4. Except as set forth above~ the HCP~ the Section la(a) permit~ t~e Agreement and the Consel-ve Habitat Restrictions shall remain in full force and effect and the Parties shall agree to perform and observe t~e po enants and conditions thereof as amende~l hereby. (~) IN ti!~lqESS kT{EIIEOF~ the Parties have executed this A~er~e~ of the date first, written above. (Ii UNITED STATES FISH AND i~ILDLIFE SERVIC~ (~) Dated*. .... By.*....__. (t) COUAg~ 0 SA~ HATEO (S) Dated: By:__ _ (S) Chair· Board o~ Supervisors (l! AI~EST.*~ (Ii Clerk of the ~oof~ (~) OF SOUTH SAN FRANCISCO (~) Dated: By:~ (~) Hayor~ City of South San Francisco (~) AITF~?.* (~) City Clerk (~). VISITACION ASSOCIATES~ a California ~olnt venture o[ Amfac~ Inc. and ~lcKF, sson corporation ~) Pated~ (~) H. Sherman Eubanks~ President {~) N. ti. DEAN & ASSOCIATES~ a California Corporation (~) Dated:_____ __ (l) Hill(aM Dean~ Preside. mt" CIT' FROM OF SOU~H S~AN FR.4N INTER-OFFIC~ MEMORANDUM [ REPLY ~ INFORMATION ONLY REQUESTED NO REPLY REQUESTED CC SIGNED [)ATE kSIGNED 'i1' .~ (WHITE) Receiving Copy (PINK) CC or Date File ~s/ss 206 (YELLO~O Return To Sender (GOLDENROD) :Senders File Cop~ ADAMS, BR. OADXYVE,LL 8 P,.USSELL ATTORNEYS AT LAW 400 SOUTH EL CAiVIINO REAL, SUITE 580 SAN M^T£O, C^LIFOI~NI^ 94402-I78(3 MEMO TELEPHONE (415) 342-1660 TELECOPY (~-I 5) 342-8948 ELECTRONIC MAIL TO: FROM: DATE: RE: South San Francisco Citizens for the Mountain Ann Broadwell~ September 9, 1985 Duty of City Council to Repeal Resolution re South Slope Amendment to Habitat Conservation Plan or to Place it on Ballot 1. Elections Code §4055 Requires Repeal of the Resolution of Placement on the Ballot The City Clerk has certified that the number of valid signa- tures on the referendum petition exceeds the 10% required by Elections Code §4051, and that the referendum petition was received at the City Clerk's Office on August 9, 1985, which is within 30 days of the date upon which the resolution was approved. Where the City Clerk certifies a petition as sufficient, the Election Code requires that the City Council either repeal the resolution or place it on the ballot. Elections Code ~4055 states, "If the legislative body does not entirely repeal the ordinance' against which the petition is filed, the legislative body shall submit the ordinance to the voters .... The ordinance shall not become effective until a majority of the voters voting on the ordinance vote in favor of it." (Emphasis added.) The city clerk has no authority to refuse to place the measure on the ballot, unless the council repeals its resolution. The California Supreme Court stated in Farley v. Healey, 67 Cal. 2d 325 at 327, 62 Cal.Rptr. 26 at 28 (1967), "Given compliance with the formal requirements for submitting an initiative, the registrar must place it on the ballot unless he is directed to do otherwise by a court on a compelling showing that a proper case has been established for interfering with the initiative power." This language was applied to the duty of a city clerk regarding a local referendum in Yost v. Thomas, 36 Cal. 3d 571 at 565, fn. 2, 205 Cal. Rptr. 801 at 803 fn. 2 (1984). In Yost, the California 1As discussed in my memorandum of July 8, 1985, these provisions apply to both ordinances and resolutions. CENTRAL RECORDS, Supreme Court said, "However, as we stated in Farley v. Healy (1967) 67 Cal.2d 325, 327, 62 Cal. Rptr. 26, 431 P.2d 650: 'It is not [a city clerk's] function to determine whether a proposed [referendum] will be valid if enacted .... These questions may involve difficult legal issues that only a court can determine. The right to propose [referendum] measures cannot properly be impeded by a decision of a ministerial officer, even if supported by the advice of the city attorney, that the subject is not appropriate for submission to the voters.'" (Brackets in original.) Thus, t~e resolution must either be repealed or placed on the ballot.- The issue of whether the resolution is subject to refer- endum can only be decided by a court. Only a court has authority to order that a measure not be placed on the ballot. See, e.g., Schmitz v. Younger, 21 Cal. 3d 90, 145 Cal.Rptr. 517 (1978), holding that the Attorney General cannot refuse to place an initiative petition on the ballot on the ground that the initiative may be invalid. These rules have been established to protect the right of refer- endum. A city council will always believe that its own decision in the matter was correct. Those who support the city council's decision (the developers, in this case) will have a great incentive to try to keep the measure off of the ballot. Elections Code ~4055 is designed to guarantee the right of referendum in the face of such obstacles. The California Constitution guarantees to the people the right of referendum, and the Elections Code and decisions of the California Supreme Court are designed to protect that right. The California Supreme Court said in Associated Homebuilders v. City of Livermore, 18 Cal.3d 582 at 591, 135 Cal. Rptr. 41 at 45 (1976), "Declaring it 'the duty of the courts to jealously guard the right of the people' (Martin v. Smith (1959) 176 Cal.App.2d 115, 117, 1 Cal.Rptr. 307, 309), the courts have described the initiative and referendum as articulating 'one of the most precious rights of our democratic process.' (Mervynne v. Acker, supra, 189 Cal.App. 2d 558, 563, 11 Cal. Rptr. 340, 344). ' [I]t has long been our judicial policy to apply a liberal construction to this power wherever it is challenged in order that the right be not improperly annulled. If doubts can reasonably be resolved in favor of the use of this reserve power, courts will preserve it.' (Mervynne v. Acker, supra, 189 Cal.App. 2d 558, 563-564, 11 Cal.Rptr. 340, 344; Gayle v. Hamm, supra, 25 Cal.App. 3d 250, 258, 101 Cal. Rptr. 628.)" The city's duty is clear. The resolution must either be repealed or placed on the ballot. 2If it is neither repealed nor placed on the ballot, the resolution will not be effective, since Elections Code §4055 provides that "The ordinance shall not become effective until a majority of the voters voting on the ordinance vote in favor of it." -2- CENTRAL 2. The City's Resolution Regarding the South Slope Amendment to the Habitat Conservation Plan was a Legislative Act. The City Council's resolution regarding the South Slope Amend- ment to the Habitat Conservation Plan is a legislative act and is subject to referendum. The case law is clear that only legislative acts, and not administrative acts are subject to referendum. See, e.g., Yost, supra, 36 Cal. 3d at 569, 205 Cal.Rptr. at 806. The City's original approval of the Habitat Conservation Plan was clearly a legislative act. It established a public policy regarding habitat preservation which had never before been authorized. The policy was so new that it took an act of Congress to authorize it, 16 U.S.C. 1539(a). "Acts constituting a declara- tion of public purpose, and making provision for ways and means of its accomplishment, may be generally classified as calling for the exercise of legislative power." Reagan v. City of Sausalito, 210 Cal.App. 2d 618 at 623, 26 Cal.Rptr. 775 at 777 (1962). The South Slope amendment goes to the heart of the San Bruno Mountain Habitat Conservation Plan, and is also a legislative act subject to referendum. The South Slope project is 337 acres (HCP p. VII-165). Under the HCP as originally approved, 40% of that parcel was to be disturbed by grading. 126 acres (37%) would be permanently disturbed and 33 acres (10%) would be temporarily disturbed (HCP, p. VII-165). Under the proposed amendment, 60% of the parcel would be disturbed (Appendix A to resolution, p. A-l). 135 acres would be permanently disturbed (40%) and 68 acres would be temporarily disturbed (20%). That is a huge increase in disturbed habitat. Furthermore, the proposed amendment allows grading in two parcels for which the adopted HCP allows no grading. Juncus Ravine, parcel 2-08, was to remain as untouched habitat in perpetuity (HCP, p. VII-202). The amendment would allow grading of 1.5 acres (p. A-27). County park parcel 2-05 was also to remain untouched (HCP, p. VII-178). Again the amendment allows grading of 1.5 acres (p. A-18). These amendments are a significant departure from the policy of the HCP, which was to preserve the designated habitat in perpe- tuity. Such a change in policy is a legislative act, not an admin- istrative act. "Acts which are to be deemed as acts of adminis- tration...are those which are necessary to be done to carry out legislative policies and purposes already declared by the legisla- tive body..." Reagan, supra. The proposed amendment changes leg- islative policy, it does not carry out that policy. The fact that the HCP Agreement can be amended does not mean that such an amendment is an administrative act. General plans can also be amended, and both their adoption and their amendment are legislative acts. Yost, supra. The HCP is analogous to a General Plan. Adoption of a General Plan, and its amendment, are legislative acts. (Government Code §65301.5; Yost, supra.) The amendment of a legislative act is -3- CENTRAL RE. CORO~ itself a legislative act, Yost 36 Cal. 3d at 571, 205 Cal. Rptr. at 801. The decision to grade the South Slope and intrude on the habitat, is "of sufficient public interest and concern to weigh the scales in favor of construing this [referendum] as being legislative and to be well within the referendum powers reserved by the people," Wheelwright v. County of Marin, 2 Cal 3d 448, 85 Cal. Rptr. 809 (1970). Cases involving a decision to allow parking spaces to be covered (Fishman v. City of Palo Alto, 86 Cal.App. 3d 506, 150 Cal. Rptr. 326 (1978), to act in a state-regulated area Friends of Mt. Diablo v. Contra Costa, 72 Cal.App. 3d 1006, 139 Cal.Rptr. 469 (1977), or to amend adjudicative decisions, (Lincoln Property v. Law, 45 Cal.App. 3d 230, 199 Cal. Rptr. 292 (1975), are simply not relevant. The proposed amendment is a legislative act, subject to referendum. This memorandum may be made public, at your discretion. AB:dm CENTRAL RECORDS City C1 erk CIT ' OF SOUT H SAN FRAN¢' $CO INTER-OFFICE MEMORANDUM ~DATE September 4, 1985 SUBJECT FPOM IOM TO CITY COUNCIL - REFERENDUM PETITION F-~ City Attorney REPLY ~ INFORMATION ONlY REQUESTED ~ NO REPLY REQUESTED SIGNED The attached IOM to the City Council should be placed in the City Council Meeting Agenda Binder under your item on the referendum petition. RO!t ~ RKR/ep K. Rogers, Jr. Attch. DATE M. SIGNED .11,. AS/SS 206 (WHITE) Receiving Copy (YELLOW) Return To Sender CENTRAL RECORD~ FILE NO..' ...... (PINK) CC or Date File (GOLDENROD) Senders File , TY OF SOUTH , INTER- OFFICE' September 3, 1985 TO: FROM: Honorable City Council COPIES TO: REFERENDUM PETITION (HABITAT CONSERVATION PLAN AMENDMENT) City Attorney City Mgr.; City Clerk I am informed that the City Clerk has received a Referendum Petition protesting the adoption of Resolution No. 156-85 by the City Council at its regular meeting of July 10, 1985. This memorandum is written to express to you my opinion that the City Council's action in adopting Resolution No. 156-85 is not the proper subject of a referendum and to advise this Council that the matter should not be Submitted to a special election. ¥ SUMMARY: The approvals protested in the Referendum Petition were: A. An amendment to the San Bruno'Mountain Habitat Conservation Plan (HCP), B. The agreement with respect to the HCP, and C. Application for amendment to the permit issued pursuant to Section IOA of the Endangered Species Act. Those approvals were accomplished by Resolution No. 156-85, which was an adminis- trative, rather than a legislative act. ±' For that reason, it is recommended that the referendum not be submitted to a special election. DISCUSSION: A. LEGISLATIVE VS. ADMINISTRATIVE ACT DEFINED It is well settled law in California that, for an act to be subject to referendum it must be a legislative act2~ather than an administrative one. The case of LincOln Property Co. v. Law ~' contains a definition which draws a clear distinc- tion between the two types of acts. At page 234 the court said that acts consti- tuting a declaration of public purpose and making provisions for ways and means of its accomplishment may be generally classified as calling for the exercise of legislative power. In other words, the power to be exercised is legislative in its nature, if it prescribes a new policy or plan. Administrative acts are those which are necessary to carry out the legislative policies and purposes already declared by the legislative body. In other words, an act is administrative in its nature if it merely pursues a plan already adopted by the legislative body itself or some power superior to it. In addition, the Referendum Petition being presented to you does not comply with Elections Code Section 4050 and following related to the referendum process. 2. 45 Cal.App.3d 230, 234 (1975) C~NTRAL RECORD~ AS/SS 205 Honorable City Council September 3, 1985 Page 2 In the Lincoln case, the City of San Carlos approved a development plan for a planned community in 1969. In December, 1971, the Planning Commission adopted a new development plan for the tract. On December 11, 1972, the City Council approved a Precise Plan, Tentative Subdivision Map and Grading Plan submitted by a developer. A committee filed a Referendum Petition with the City Clerk requesting that the December, 1972 resolution be repealed or submitted to a vote of the people at a regular municipal election or a special election to be called for that purpose. The developer filed an action to stop the City and its officers from conducting an unlawful referendum election, among other things, and the Trial Court, holding that the action of the City Council in approving a development plan was administrative and executive and thus not subject to a Referendum Petition, dismissed the action. The Court of Appeal affirmed, holdings.that the resolution involved was no more than an approval of the previously adopted development plan, and simply carried out and implemented the legislative purposes and conditions that had been pre- scribed by the previous resolution and was, therefore, an administrative act which was not subject to the referendum process. At page 235 the court said: "In sum, we hold that since the legislative objectives and conditions of development were laid down in the January 1972 resolution of the City council and the acts of respondent approved at the December 1972 meeting were done merely to carry out the legislative policies already declared, the December Resolultion must be classified as a purely ad- ministrative act which is not subject to the referendum process." OTHER ILLUSTRATIVE CASES In Fishman v. City of Palo Alto 3--/, a condominium owner's association filed a "change of district (zone change) application" requesting approval of a proposed covered parking facility which would cover forty-three (43) of fifty-six (56) existing parking spaces. In 1958 the Palo Alto City Council had rezoned the property into a planned community district by ordinance. That ordinance had set forth the standards for development within the planned commun- ity district zone. In 1977 the City Council, by resolution, modified the develop- ment plans approved previously by the ordinance in order to permit construction of the covered parking facility. Citizens presented a Referendum Petition to the City Council, and the City Council refused to rescind the resolution or to submit the issue to a referendum. The court held that the resolution did not amount to a substantial alteration of the PC District, was not tantamount to a rezoning of the district, and therefore was not subject to referendum. The court said that some changes in the development plan of a planned community district may well be legislative and subject to referendum. But, the court pointed out that cases holding such land use modifications to be legislative acts subject to referendum involved substantial land use changes. The court 3. 86 Cal.App.3d 506 (1978) ~:NTRAL RECORD~ Honorable City Council September 3, 1985 Page 3 found persuasive the Trial Court's reasoning that the City had allowed the association only to cover existing parking spaces, rather than to convert new land into a parking lot or garage, and said that the determination of whether or not an act was legislative or administrative must be made on a case by case basis. In Friends of Mount Diablo v. County of Contra Costa 4--/ the question was whether or not the resolution of a Board of Supervisors approving a reorganization of special districts was subject to referendum by the electors of the county. The reorganization was carried out under the provisions of the District Reorganiza- tion Act of 1965. The court held that the resolution was an administrative action and denied referendum. Friends of Mount Diablo involved Blackhawk Ranch which had been rezoned by the County of Contra Costa to allow the cbnstruction of ~grty-two hundred (4200) housing units on forty-eight hundred (4800) acres. ~' After approval of the project, Blackhawk petitioned for reorganization of districts within the re- zoned area to accomplish an orderly arrangement of the various districts in which the area is situated. Twenty-one (21) changes from the existing patterns were made. After a required hearing was held, the reorganization was approved by the Board of Supervisors. A Petition for Referendum followed. Based upon the nature of the District Reorganization Act, the court held that the matter was of such state-wide concern that the local Legislative body was converted into an Adminis- trative agent of the state in approving the reorganization. Thus, the act was administrative and not legislative. C. CITY COUNCIL ACTIONS REGARDING TERRABAY Applying the foregoing court interpretations to acts by the City Council of South San Francisco related to the development of the South Slope of San Bruno Mountain, I arrive at the following conclusions: 1. The adoption of Resolution No. 159-82 on December 2, 1982 (adopting the Terrabay Specific Plan) was a legislative act. 2. The adoption of Ordinance No. 915 on February 2, 1983 (prezoning of South Slope of San Bruno Mountain as the Terrabay Specific Plan Zone District) was a legislative act. 3. The adoption of Resolution No. 139-82 on November 15, 1982 (approving and authorizing execution of the HCP Agreement) could be characterized as admin- istrative to the extent that it carried out policy already set forth in'the actions listed above under i and 2, and because the agreement was entered into under the auspices of the Endangered Species Act (thus, carrying out federal law); but arguably could be described as a legislative act to the extent that it might set policy for protecting "species of concern" not covered by the Endangered Species Act. CENTRAL RECORDS 4. 72 Cal.App.3d 1006 (1977) I~,1.£ NO.,...~.'~ 5. Shopping areas, golf courses and recreation areas were also included in the plan, along with public par.ks and other dedications. Honorable City Council September 3, 1985 Page 4 4. The adoption of Resolution No. 140-82 on November 15, 1982 (authoriz- ing execution of an application for a Section lOA Permit) was clearly an Admin- istrative act. 5. The adoption of Resolution No. 156-85 on July 10, 1985 (approving an amendment to the HCP Agreement, authorizing its execution, authorizing the amendment to the HCP and authorizing application for an amendment to the Section lOA Permit previously issued by the federal government) is also clearly an Admin- istrative act. This is true because the amendment is a necessary act to carry out the legislative policies and purposes already previously declared by the Council and merely pursues a plan already adopted by the Council, (i.e., the Terrabay Specific Plan and prezoning and the HCP and HCP Agreement) and, in effect, furthers the policy of the Endangered SpeCies Act adopted by the federal government (i.e., a policy of nationwSde concern adopted by a power superior to the City.) Further evidence of the Administrative nature of this act is the fact that the HCP Agreement itself provides for amendments to the HCP, and the HCP Agreement to be made at three {3) year intervals upon consent and/or approval of the owners of the lands involved, the local agency having regulating land use authority {i.e., the City), the County of San Mateo and the U.S. Fish and Wildlife Service, if those amendments are supported by a biological study demonstrating that the amendment does not conflict with the primary purpose of the HCP to provide for the indefinite long term perpetuation of the Mission Blue, Callippe Silverspot and other species of concern. Based on the foregoing, it is readily apparent that the act of the City Council in adopting Resolution No. 156-85 was an Administrative act furthering the policy previously set by the City Council related to the development of portions of the South Slope of San Bruno Mountain and furthering federal policies set forth in the Endangered Species Act. Therefore, it is recommended that the Referendum Petition protesting the adoption of Resolution No. 156-85 not be referred to a special election. In addition to the foregoing analysis, I have received letters from the firms of Heller, Ehrman, White & McAuliffe and Ellman, Burke & Cassidy on this subject, representing the position of their clients W.W. Dean and Associates and Visitacion Associates respectively. Those letters are attached to this memorandum for your cp.~..usal. Also attached hereto, please find complete copies of the three cases ed above. Vq~ry respectfully, ~O~E ,J K. ROGERS, JR. City Attorney RKR/mm E nc. CENTRAL RE I~EN]NSU LA OIrF'ICE P(~)R'I' LA N D OFFICE WlLLIAIVl W. STERLING HELLER, EHRMAN, WHITE & HcAULIFFE ATTO R N EY.~ 44 ~ONTGOMER¥ STREET · SAN FRANCISCO, CALIFORNIA 94104 TELEPHONE C41~) 772-6000 August 13, 1985 HONG KONO OFIrlCE Robert K. Rogers, Esq. City of South San Francisco 400 Grand Avenue South San Francisco, California 94080 Dear Mr. Rogers: This letter is addressed to you formally in ~ur capacity as City Attorney for the City of South San Fran- cisco. We are writing, for our part, in our capacity as attorneys for W. W. Dean & Associates, in connection with the Terrabay Project proposed for the South Slope of San Bruno Mountain. We understand that a group of citizens has filed a petition with the City for the purpose of submitting to referendum the decision taken by the City Council on July 10, 1985, approving the so-called "Window Amendment" to the San Bruno Mountain Habitat Conservation Plan. The decision which the referendum petitioners challenge is embodied in Resolution No. 156-85 of the City Council of the City of South San Francisco. The purpose of this letter is to provide the City and you with formal notice of our concern and our conclusion that the proPosed referendum is unlawful and that, if the referendum process is alloWed to continue, the City will be party to a proceeding which will be costly and pointless. As advocates for W. W. Dean & Associates, we are dismayed at the prospect of yet another round of opposition to a project which is favored by the County's General Plan, authorized by the Habitat Conservation Plan, and specifiCally approved by the City of South San Francisco after exhaustive environmental and permitting proceedings. H. E.W. & MCA.TO Robert K. Rogers, Esq. DATE 8/13/85 P. 2 The conclusion, to us at least, seems obvious:. there should be no referendum. The applicable law of the State of California is perfectly clear. The referendum process may not be used to challenge action of a city council which is "administrative" in nature. The refer- endum power of the electorate is limited to action which is "legislative" in nature. The action which the City Council took on July 10, 19.85, as embodied in Resolution No. 156-85, is indisputably administrative. Consequently, the electorate has no power to subject the Council's ac- tion to a referendum. We believe the best course of action available to the City Council'is the course which the Palo Alto City Council followed in events which gave rise to the case en- titled Fishman v. City of P~lo Alto, 86 Cal. App. 3d 506 (1978), namely, to state to the referendum petitioners that there are no lawful grounds for a referendum, that accord- ingly the City is not subject to the requirements of Cal- ifornia Elections Code §§ 4051 or 4055, and that if the referendum petitioners wish to dispute that determination, the proper forum is a court of law. The foregoing statements about the law, as well as our suggestion that the City Council may properly determine to take no action on the referendum petition, are based upon coPious and relentless authority. A brief synopsis of the authority follows. If you think a fuller discussion of any point which our synopsis covers would be useful, we would be happy to provide that discussion. But, for the purposes of this letter, we think a summary presentation will suffice. 1.. The referendum process may be used only to challenge legislative action; it may not be used to chal- lenge administrative action. Simpson v. Hite, 36 Cal. 2d 125 (1950). 2. Legislative action, generally speaking, is action which involves the establishment of policy or gen- eral regimes for the governance of people or the regulation of affairs. Legislative action prescribes a new policy or plan; administrative action pursues or implements a plan already adopted by the legislative body. Lincoln Property Co. No. 41 v. Law, 45 Cal. App. 3d 230, 234 (1975); Valentine v. Town of Ross, 39 Cal. App. 3d 954, 957-58 (1974); Martin v. Smith, 184 Cal. App. 2d 571, 575 (1960). CEN'[ RA~' RECORD5 MICH~ EL J E]URKE KENNETH N. I]URNS STEPHEN K CA$$IOY HOWARD N. ELLMAN WENDE W. CUASTA,%~ACHIO JOHN D. HOFFMAN JEFFREY W. JOHNSON JON L, MANGUS SCOTT C. VERGES RICHARD O ZlMMERMAN ELLMAN, BURKE &. CASSID¥ A PROFESSIONAL CORPORATION ONE EBKER BUILDING. SUITE 200 SAN FRANCISCO. CALIFORNIA 94105 TELEPHONE [415] ?77-2727 August 15, 1985 Robert K. Rogers, Jr., Esq. City Attorney City of So. San Francisco Box 711 So. San Francisco, CA 94083 Re- Proposed Referendum With Respect To City's Approval Of the Geo- Technical Amendment For The ~abitat Conservation Plan Dear Mr. Rogers: We understand that the Save San Bruno Mountain Committee and other parties are circulating a referendum petition with respect to the action of the So. San Francisco City Council in approving the geotechnical window amendment of the Habitat Conservation Plan for San Bruno Mountain with respect to the W. W. Dean project. I submit that the act of the City Council is not subject to the power of referendum. Lincoln Property Company No. 41, Inc. v. Law, 45 Cal.App.3d 230, 234 (1975) contains a typical (and oft- repeated) statement distinguishing between legislative acts, which are subject to the referendum power, and administrative acts, which are not. ". . . according, acts constituting a declaration of public purpose and making provisions for ways and means of its accomplishment may be generally classified as calling for the exercise of legislative power. Acts of CENTRAl.. RECORD8 Robert K. Rogers, Jr., Esq. AugUst 15, 1985 administration, on the other hand, are those which are necessary to carry out the legislative policies and purposes already declared by the legislative body (citations) or as the court in Martin v. Smith, supra, [184 Cal.App.2d 571, 575 (1960)] "'"the power to be exercised is legislative in its nature if it prescribes a new policy or plan; whereas, it is ad~inistrative in Tt~--~ature if-~t merely pursues-~ plan already adopted by 'the legi~-~a~-~ve body itself, or some power superior to 1~."'" (emphasis~ in'original) (citations]." In this case, the City Council acted legislatively $ when it approved the Dean p~°ject in the first instance and when it became 'party to the HCP. The HCP process itself expressly contemplates amendments necessary to implement and facilitate achievement of its goals and purposes. Such actions are not "legislative" unless they represent a fundamental departure from the original legislative decision. Fishman v. City of Palo Alto, 86 Cal.App.3d 506 (1978) is a case which cites Lincoln Property as controlling and which deals with facts analogous to those here. In that case, a referendum was held inapplicable as a device for attacking a resolution revising a previously approved development plan. The parties proposing the referendum contended that since the original approval was legislative, any decision amending .it must also be of that nature. The court rejected the argument on grounds also relevant here, to wit, that to subject such implementing actions to the CENTRAL RECOR95 Robert K. Rogers, Jr., Esq. August 15, 1985 referendum power would excessively burden the efficient functioning of government. The parties promoting this referendum are asking the City to undertake an expensive and divisive special election to challenge an action which is a technical and non-substantive revision of the HCP Agreement in order to facilitate a development to carry out~and achieve the objectives of that Agreement and of the City's Residence Element. For the reasons stated in Lincoln Property, Fishman and other relevant authorities, this is precisely the sort of action to Which the referendum power should not be applied. I would not presume to suggest to you how you should advise your client. Were I in your place, I would be inclined to recommend that the City Council refuse to place the proposed measure on the ballot, unless and until it is ordered to do so by writ of mandate. In economic terms, such an approach weighs attorneys' fees against the cost of a special election. In political terms, it shows that at some point, the basic issues involved in this matter should Robert K. Rogers, Jr., Esq. August 15, 1985 be considered resolved. And, as noted above, I don't believe the legal risk is significant. Very truly yours, HNE:lm bcc: Mr. M. Sherman Eubanks William W. Sterling, ~sq. Mr.Frank Pacelli CENTRAL RECORD,.~ FILE NO.:..-~.'~- 230 LINCOLN PROPERTY CO. No. 41, [NC. V. L,xw 45 C.A.3d 230:119 CaI.Rptr. 292 [Civ. No. 33639. First Dist., Div. Two. Feb. 1 I, 1975.] LINCOLN PROPERTY COMPANY NO. 41, INC., Plaintiffand Respondent, v. ARTHUR LAW, Defendant and Appellant; CITIZENS COMMITTEE FOR THE PRESERVATION OF THE SAN CARLOS FOOTHILLS, Movant and Appellant. SUMMARY Following acquisition of a tract of land by a developer, a city planning commission adopted a new development plan for the tract, prescribing a number of conditions with respect to the deiailed plan to be prepared by the developer, and the plan was adopted by the city council. Thereafter, the developer submitted a plan of development, together with a grading plan and a tentative subdivision map to the city for approval, and by resolution the city council approved the plan, tentative subdivision map and grading plan. An unincorporated association then filed a referendum petition requesting that the resolution approving the development plan be repealed or submitted to a vote. In an action by the developer to enjoin the city and its officers from conducting an unlawful referendum election, and to restrain named private individuals from circulating the referendum petition and making any further misrepresentations concern- ing the effects of the resolution approving the Plan, the trial court dismissed the action against the individuals but issued the requested permanent injunction against the city and its employees, holding that the action of the city council in. approving the development plan was administrative and executive, and was not subject to a referendum petition. (Superior Court of San Mateo County, Nb. 173264, Robert D. Miller, Judge.) The Court of Appeal affirmed, holding that the resolution involved was no more than an approval of the previously adopted development plan, and simply carried out and implemented the legislative purposes and conditions that had been prescribed by the previous resolution, and was, therefore, an administrative act which was not subject to the referendum process. (Opinion by Kane, J., with Taylor, P. J., and Rouse, J., concurring.)- [Feb. 1975] CENTRAL LINCOLN PROPERTY Co. No. 41, Itqc. v. L,~w 45 C.A.3d 230; 119 CaI.Rptr. 292 231 HEADNOTES Classified to California Digest of Official Reports. 3d Series (1) Initiative and Referendum § 3---Constitutional Provisions.--While thc reserved power of initiative and referendum accorded by Cal. Const., art: IV, § 1, is to be liberally construed to uphold it whenever reasonable, it is egtablished beyond dispute that the power of referendum may be invoked only with respect to matters which are strictly legislative in character, while administrative or executive acts arc not within the reach of the referendum process. (2a:2c) Initiative and Referendum § !6--Local Elections Referen- dum.---A resolution of a city council approving a previously adopted plan of tract development, subdivision map, and grading plan was an administrative, not legislative, act, and therefore-was not subject to the referendum process provided by CaLConst., art. IV, § 1, since thc legislative objectives and conditions of development had been laid down in a previous resolution adopting that precise plan, and thc current resolution merely carried out the legislative policies already'declared. [See Cal.Jur.2d, Initiative, Referendum, and Recall, § 39; Am. Jur.2d, Initiative and Referendum, § 12.] (3) Initiative and Referendum § 16---Local Eiections---Referen- dum.--Acts constituting a declaration of public purpose and making provisions for ways and means of its accomplishment may be · generally classified as calling for the exercise of legislative power, and are thus subject to the referendum process. Acts of administra- tion, on the other hand, are those which are necessary to carry out the legislative policies and purposes already declared by the legislative body, and are not subject to referendum. (4) Appellate Review § 89--Record--Clerk's Transcript. l On an appeal taken on the clerk's transcript alone, it is conclusively presumed that the evidence before the trial court was sufficient to support the findings. [Feb. 1975] 232 LINCOLN PROPERTY Co. No. 41,\INC. v. LAw 45 C.A.3d 230: I l0 Cal. Rptr. 292 COUNSEL Melvin C. Kerwin, Frederick L. Lyon and James M. Himmel for Defendant and Appellant and for Movant and Appellant. William D. Esselstein as Amicus Curiae on behalf of Defendant and Appellant and Movant and Appellant. Hession, Creedon, Hamlin, Kelly, Hanson & Farbstein, Paul F. Kelly and Gordon E. McClintock for Plaifltiff and Respondent. OPINION KANE, J.--Arthur W. Law and the Citizens Committee for the Preservation of the San Carlos Foothills ("Committee") appeal from the lower court's judgments granting apr. eliminary and permanent injunc- tion, and from certain court orders denying motions to intervene and to set aside judgment pursuant to Code of Civil Procedure, section 473. The facts relevant to the present appeal may be summarized as follows: Respondent, a real estate de~'eloper, acquired a tract of land common- ly known as "Lands of Roth" in the City of San Carlos ("City"). The property in question was annexed to the City in 1968 and was zoned Planned Community (PC). In 1969 the City council approved a development plan for William Roth, the previous owner, which plan, however, was never completed. Following the acquisition of the land by respondent, in December 1971, the City planning commission adopted a new development plan for the tract, prescribing a number of conditions with respect to the detailed plan to be prepared by respondent. The new plan, which specified a development of smaller magnitude than previously approved, and in which no zoning change~ were proposed, was adopted by the City council on January 24, 1972. The plan was extensively discussed at public hearings both before the planning commission and the City council. In compliance with the conditions set forth in the new plan, in May 1972 respondent submitted a precise plan of development, a grading plan, and a tentative subdivision map to the City for approval. After a public hearing in which counsel for appellants also participated, by a resolution handed down on December 11, 1972 ("December Resolu- [Feb. 1975l CENI'RAL RECORDS LINCOLN PROPERTY Co. No. 41, INC. v. LAw 45 C.A.3d 230:119 Cal. Rptr. 292 233 tion"), the City council approved the precise plan, the tentative subdivision map and the grading plan submitted by resp6ndent. On January 9, 1973, the Committee, an unincorporated association, filed a referendum petition with the City clerk requesting that the December Resolution be repealed or submitted to a vote of the people at a regular municipal election or a special election to be called for this purpose. Thereafter, on January 29, 1973, respondent, as a taxpayer, initiated the present lawsuit seeking to enjoin the City and its officers from conducting an unlawful referendum election (first cause of action), and to restrain the named private individuals from circulating the referen- dum petition and. making any further misrepresentations concerning the effects of the December Resolution (second cause of actibn). The procedural steps following the complaint may be-outlined as follows: On the day of the filing of the complaint the trial court issued a temporary restraining order enjoining the City, its employees and the private individual defendants from the activities complained of. This was followed by a preliminary injunction issued on March 20, 1973. On April I0, 1973, the trial court heard and overruled the demurrer of the individual defendants. On April 20, 1973, the City filed a verified answer admitting the allegations of the first cause of action. On April 24, 1973, respondent filed a request for dismissal of the second cause of action and an application for judgment on the pleadings on the uncontested first cause of action. In acting upon the request, the trial court dismissed the second cause of action and.granted a permanent injunction against the City and its employees only. The permanent injunction was issued' on April 24, 1973, and entered on April 25, 1973. On this latter date the Committee, which was not a party to the action, filed a motion to intervene. This motion along with a motion to vacate judgment were denied by the trial court on May 10, 1973. The present appeal followed. Although appellants, joined by amicus curiae, attack the judgments and orders at issue on procedural grounds as well, their primary -contention on appeal is that by enjoining the City from processing their --referendum petition the trial court violated the fundamental rights secured by article IV, section 1, of the California Constitution, and thereby committed reversible error. We disagree. (1) While it has been generally said that the reserved power of initiative and referendum accorded by article IV, section 1, of the Constitutior~ is to be liberally construed to uphold it whenever reason- [Feb. 1975] CENTRAL RECORDS 234 LINCOLN PROPERTY Co. NO. 41, INC. v. L,,,w 45 C.A.3d 230: i 19 Cal. Rptr. 292 able (Beck v. Platt (1972) 24 Cal. App.3d 611 [I01 Cal. Rptr. 236]; Collins v. City & Co. hfS. F. (1952) 112 Cal.App.2d 719 [247 P.2d 3621), it is established beyond dispute that the power of referendum may be invoked only with .respect to matters which are strictly legislative in character (Wheelright v. County of Matin (1970) 2 Cal. 3d 448, 457 [85 Cal. Rptr. 809, 467 P.2d 537]; Johnston v. City of Claremont (1958) 49 Cal.2d 826, 834 [323 P.2d 71]). Under an unbroken line of authorities, administrative or executive acts are not within the reach of the referendum process (Wheelright v. County of Marin, supra; Simpson v. Hite (1950) 36 Cal.2d 125, 129 [222 P.2d 225]; Housing Authority v. Superior Court (1950) 35 Cal.2d 550, 557 [219 P.2d 4571; Hughes v. City of Lincoln (1965) 232 Cal. App.2d 741, 744 [43 Cal. Rptr. 306]). 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 adminis- tration of the business affairs of a city or municipality (Hopping v. Council of City of Richmond (1915) 170 Cal. 605, 611 [150 P. 977]; Duran v. Cassidy (1972) 28 Cal. App.3d 574, 581 [I04 Cal. Rptr. 793]; Martin v. Smith (1960) 184 Cal. App.2d 571, 575 [7 Ca[Rptr. 725]). (2a) The narrow issue confronting us, therefore, is whether the December Resolution constitutes a legislative or an administrative act. In answering this question, we are not without aid. In_.defining the legislative and administrative' functions the cases draw a careful distinc~ tion between the two: (3) Accordingly, acts constituting a declaration of public purpose and making provisions for ways and means of its accomplishment may be generally classified as calling for the exercise of legislative power. Acts of administration, on the other hand, are those which are necessary to carry out the legislative policies and purposes already declared by the legislative body (Reagan v. City of Sausalito (1962) 210 Cal. App.2d 618, 621 [26 Cal. Rptr. 775]; McKevitt v. City of Sacramento (1921) 55 Cai. App. 117, 124). Or, as the court put it in Martin v. Smith, supra, ' .... The power to be exercised is legislative in its nature/jr 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 ..... (italics added; see also: Valentine v. Town of Ross (1974) 39 Cal. App.3d 954, 957 [114 Cal. Rptr. 678]; Seaton v. Lackey (1944) 298 Ky. 188 [182 S.W.2d 336, 339]; 5 McQuillin on Municipal Corporations (3d ed.) pp. 213-214). (2b) Tested by the.foregoing standard, the instant r&ord°conclusively establishes that the ioning change which undoubtedly constituted a [Feb. 19751 CENTRAL RECORDS LINCOLN PROPERTY Co. No. 41, INC. v. LAw 45 C.A.3d 230; 119 Cal. Rptr. 292 235 legislative act (cf. Johnston v. City of Claremont, supra; Dwyer v. City Council (1927) 200 Cal. 505 [253 P. 932]) took place not in December 1972, but by the adoption of the new plan of development on January 24, 1972. The December Resolution, which is. the subject matter of the present litigation, was no more than an approval of the precise plan which, in turn, simply carded out and implemented the purposes and conditions that had been prescribed by the January resolution. This conclusion is in accord with the decision of the trial court, X and is abundantly supported by the record on appeal?' (4) It goes without saying that where, as here, the appeal has been taken 09 the clerk's -transcript alone, it is conclusively presumed that the evidence before the trial court was sufficient to support the findings (Winkelman v. City of Tiburon (1973) 32 Cal. App.3d 834, 841 [108 Cal. Rptr. 415]; Millbrae Assn. for Residential Survival v. City of Millbrae (1968) 262 Cal.App.2d 222, 226 [69 Cal. Rptr. 251]). (2c) In sum, we hold- that since the legislative objectives and conditions of development were laid down in the January 1972 resolu- tion of the City council and the acts of respondent approved at the December 1972 meeting were done merely to carry out the legislative policies already declared, the December Resolution must be classified as a purely administrative act which is not subject to the referendum process. In reaching our conclusion we are greatly aided by Andrews v. City of San Bernardino (1959) 175 Cal. App.2d 459 [346 P.2d 457] (cert. den., 364 U.S. 288 [5 L.Ed.2d 38, 81 S.Ct. 48]), and Valentine v. Town of Ross, supra, a case recently decided by this court. In Andrews, akin tO the case at bar, under a community redevelopment law, the city retained the fight ~The pertinent part of the trial court's memorandum decision granting the preliminary injunction reads as follows: "It has been established to the satisfaction ofth6Court that the action of the San Carlos City Council on December 1 !, 1972 was administrative and executive. The legislative action of the council which might have been subject to a referendum petition took place in January, 1972. The subsequent actions of the council related to the details of the plan previously established." 2Thus, the record indicates that commenting on the precise plan at the December 1972 hearing, Planning Consultant Byce stated inter alia that "this is a precise plan which was approved previously as a plan of development; . . . the plan that was originally bq£ore the Planning Commis'sion and City Council .... "In his sworn statement submitted to the trial court he likewise reaffirmed that "A new plan of development.for this property [Lands of Roth] was adopted by the City Council on January 24, 1972. This was an amended plan of development for th~ area...'. ' "On Deccmber !1, 1972, the City Council approved a specific plan of development which is accurately represented by the map attached hereto. . This map was submitted. along with a tentative subdivision map and a grading ~ian. ro detail the plan qf development in a manner that complied with the conditions imposed by the City Council on January 24, 1972. Said precise plan and grading plan were apt~roved stibject to the conditlons set forth .... "(Italics added.) [Feb. 1975] CENTRAL. RECORD~ FILl=' NO.: ...~---~ ~ 236 LINCOLN PROPERTY Co. NO. 41, INC. v. LAW 45 C.A.3d 230: 119 C~,l. Rptr. 292 to approve the final redevelopment plans. Un~er that circumstance the court held that the city's ordinance approving such plans was not a legislative act, but instead an administrative or executive function which was unaffected by the power ofrefer~'ndum. In Valentine, another case in point, there was a 1967 resolution by which the Town of Ross adopted schematic plans for a flood control project reserving rights to approve the. detailed plans later. The detailed plans for the construction were approved by the town council in three steps in 1969 and 1970. Plaintiffs sought a referendum election from Resolution 901 adopted in May 1970. In holding that Resolution 901 was an administrative act, not subject to referendum, the court pointed out that the declaration of public purpose was laid down in the 1967 resolution, and the later resolutions of the town-council were but' the administrative implementations of the previously declared public purpose, and that the approval of the final detailed plans constituted merely one of the means of accomplishing the primary objective. We are satisfied that Millbrae Assn. for Residential Survival v. City of Millbrae, and Wheelright v. County of Matin, both supra, are distin- guishable from the case at bench. It appears clear that the holding of Millbrae is based upon the circumstance that the later changes amounted to a substantia1 alteration of the general plan and were therefore tantamount to rezoning of the district. Nothing remotely similar can be found in the case at bench, where the precise plan decreased--rather than increased--the general size of the buildings (cf. Millbrae ,~ssn. for Residential Survival v. City of Millbrae, supra at pp. 245-246). In Wheelright, the deci sire factor was likewise a substantial change whereby a later ordinance approved a plan for an access road to the rezoned area which had not even been considered in the earlier adopted master plan. As emphasized before, in the case at bench all the changes that the December Resolution approved had not only been considered, but also .prescribed by the January plan. In view of our Conclusion, the additional issues raised in appellfints' briefs, i.e., denial' of motion to intervene, denial of motion to set aside judgment under Code of Civil Procedure, section 473, etc., become inconsequential and need not be discussed. The judgments ahd orders are, and each is, affirmed. Taylor, P. J., and Rouse, J., concurred. .A petition for a rehearing was denied March 13, 1975, and the petition of all the appellants for a hearing by the Supreme Court was denied April 16, 1975. Sullivan. J., did not participate therein. [Feb. 1975] CENTRAL. RE[C_.,ORD~ 506 [Deleted 492-505] FISHMAN V. CITY OF PALO ALTO 86 Cal. App.3d 506:150 CaI.Rptr. 326 Opinion (Baxter v. Scottish Rite Temple Assn. * and J'Aire Corp. v. Gregory'S) on pages 492-505 omitted. [Civ.. No. 43556. First Dist., Div. Four. Nov. 20, 1978.] JOYCE FISHMAN et al., Plaintiffs and Appellants, v. CITY OF PALO ALTO, Defendant and Respondent; PALO ALTO CONDOMINIUM OWNERS ASSOCIATION, Real Party in Interest and Respondent. SUMMARY The trial court granted defendant city's demurrer to plaintiffs' petition for a writ of mandate to compel defendant to submit to referendum a resolution permitting construction at an aFartment building of a shelter for a parking lot, and dismissed the petition. The petition alleged that the city council, by resolution, modified the development plans approved by a previous ordinance to permit construction of a screened enclosure which would cover 43 of 56 existing parking spaces adjacent to residential properties.'A petition was then circulated requesting that the city council rescind the resolution or submit the issue to referendum, but the city refused to do either. (Superior Court of Santa Clara County, No. P 32590, George H. Barnett, Judge.) The Court of Appeal affirmed. The court held that the resoiution modifying the development plans to permit construction of the screened enclosure did not amount to a substantial alteration of the zoning district, was not tantamount to a rezoning of the district, and therefore was an administrative act, rather than a legislative act, not subject to referendum. (Opinion by Christian, J., with Caldecott, P. J., and Brunn, J.,:~ concurring.) 1 ~2 HEADNOTES Classified to California Digest of Official Repons, 3d Series (1) Initiative and Referendum § 5---State Elections LegislatiVe Power--Referendum With Respect to Legislative Matters.--Al- *Deleted on direction of Supreme Court by order dated January 24, 1979. '~Hearing granted. See 24 Cal.3d 799 for Supreme Court opinion. :~Assigned by the Chairperson of the Judicial Council. [Nov. 1978] C~'NTRAL RE. CORD~ FISHMAN V. CITY OF PALO ALTO 86 CaI.App.3d 506; 150 CaI. Rptr. 326 though the powers reserved by the people of initiative and referendum under Cal. Const., art IV, § 1, are to be liberally construed to uphold those powers whenever it is reasonable to do so, the people may _ .invoke the power of referendum only with respect to matters that are legislative. An administrative act is not subject to referendum. This legislative-administrative dichotomy reflects a determination to balance the ideal of direct legislation by the people against the practical necessity of freeing municipal governments from time- consuming and costly referenda on merely administrative matters. 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. {2) Initiative and Referendum § 16--LOcal Elections.--Referendum Ad- rnlnistrative and Legislative Acts.--A municipal resolution of the city council modifying the development plans previously approved by an ordinance to permit construction of a screened enclosure to cover..43 of 56 existing parking spaces adjacent to residential property did not amount to a substantial alteration of the zoning district, was not tantamount to a rezoning of the district, and therefore was an administrative act, rather than a legislative act, not subject to referendum by the local voters. The resolution carried out the policies and purposes of the zoning district already declared in the previous ordinance and allowed the covering only of existing parking spaces and did not allow conversion of new land into a parking lot or garage. [See Cal.Jur..3d, Initiative and Referendum, § 56; Am.Jur.2d, Initiative and Referendum, § 11.] COUNSEL .' Ralph R. Gallagher and John Hargis for Plaintiffs and Appellants. Glynn P. Falcon, Jr., as Amicus Curiae on behalf of Plaintiffs and Appellants. [Nov. 1978] CENTRAL RECORDS 508 FISHMAN v. CITY OF PALO~ALTO 86 CaI.App.3d 506; 150 Cal. R~tr. 326 Roy C. Abrams, City Attorney, Marilyn Norek Taketa, Senior Assistant City Attorney, Louis B. Green, Donald H. Maynor and Carolyn B. Rose, Assistant City Attorneys, for Defendant and Respondent. Crist, Crist, Griffiths, Bryant, Schulz & Biorn, Robert A. Biorn and Patricia J. Gebala for Real Party in Interest. OPINION CHRISTIAN, J.--Joyce Fishman and others have appealed from a judgment upon demurrer, dismissing their petition for a writ of mandate. Appellants sought a writ to compel defendant City of Palo Alto to submit to referendum a resolution permitting construction at an apartment building of a shelter for parked cars. The petition incorporated as exhibits documents which present a full history of the dispute. Because the trial court acted on the basis of a demurrer, we may accept as true the following allegations of the petition. Real party in interest Palo Alto Condominium Owners Association is the exclusive authorized agent of owners of condominiums at 101 Alma Street with regard to common areas. In August 1976, the association filed a "Change of District (Zone Change) Application" requesting approval of a proposed covered parking facility at 101 Alma Street. The proposed "screened enclosure" would cover 43 of the 56 existing parking spaces, and would be adjacent to residential properties fronting on Palo Alto Avenue and Emerson Street. The city council in 1958 had rezoned 101 Alma Street into a Planned Community CP-C") district (Ord. No. 1802) pursuant to Palo Alto Municipal Code chapter 18.68. In March 1977, the city council by resolution modified the development plans approved by Ordinance 1802 to permit construction of the screened enclosure (Res. No. 5382). A petition was then circulated requesting that the city council rescind Resolution 5382, or submit the issue to a referendum. Sufficient valid signatures were collected to place the issue on a ballot. The city council refused to rescind the resolution or to submit the issue to a referendum. The question in this litigation is whether Resolution 5382, modifying the development plans approved by Ordinance 1802, was a legislative act subject to a referendum or an administrative act not so subject. CENTRAL RECOR~ .o.i.. [Nov. 19781 FISHMAN V. CITY OF PALO ALTO 86 Cal. App.3d 506; 150 Cal. Rptr. 326 509 (I) Although the powers reserved by the people of initiative and referendum (see Cal. Const., art. IV, § 1) are to be liberally construed to uphold those powers whenever it is reasonable to do so, the people may invoke the power of referendum only with respect to matters that are legislative. An administrative act is not subject to referendum. (See, e.g., Wheelright v. County of Marin (1970) 2 Cal.3d 448, 457 [85 Cal. Rptr. 809, 467 P.2d 537]; Lincoln Property Co. No. 41,. Inc. v. Law (1975) 45 Cal. App.3d 230, 233-234 [119 Cal. Rptr. 292].) This legislative- administrative dichotomy reflects a determination to balance the ideal of direct legislation by the people~ against the practical necessity of freeing municipal governments from time consuming and costly referenda on -merely administrative matters.2 (Note, supra, 3 Stan. L. Rey. 497, 504, 509; see also Note, supra, 29 Stan. L. Rev. 819, 831-836.) :: L~gislative 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. (See Lincoln Property Co. No. 41, Inc. v. Law, supra, 45 Cal. App.3d 230, 2.34, and cases cited.) Seaton v. Lackey (1944) 298 Ky. 188, 193 [182 S.W.2d 336, 339] stated the classic and often quoted test: "IT]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." (See, e.g., Lincoln Property Co. No. 41, Inc. v. Law, supra, 45 Cal.App.3d 230, 234.) The test is not precise, and there is some inconsistency of approach between the published decisions. (See Note, supra, 3 Stan. L.Rev. 497, 503, and cases cited.) l,, 'Every law which the people in person have not ratified is invalid; it is not a law.'" (Note, Limitations on Initiative, and Referendum (1951) 3 Stan. L. Rev. 497 at p. 497, quoting Rousseau, Contrat Social (1762) ch. XV.) ?'For example, the City of Palo .Alto, California (population 56,0130), which has a permissive referendum provision in its city charter, had no recorded referendum on rezoning before 1970, and has had only four such referenda since 1970. Interview with Francis Escherich, Office of City Attorney, in Palo Alto (Mar. 2, 1977). The planning commission of Palo Alto, annually. Of the petitions 7b8~c°ntrast' receives an average of 12 rezoning petitions were approved in 1974, 88% in 1975, and 75% in 1976. Interview with James Glanville, Palo Alto Planning Commission, in Palo Alto (Mar. 3, 1977). Since 1970, only 5.5% of the rezoning petitions have been referred to the Palo Alto voters, yet Palo Alto is considered to have a more active electorate than neighboring cities such as Mountain View, Santa Clara and San Jose. Interview with Byron Sher, Palo Alto Mayor 1975-76, in Palo Alto (Mar. 2, 1977). See also W. CROUCH, D. MCHENRY, J. BOLLEN & S. SCOTT, STATE AND LOCAL GOVERNMENT IN CALIFORNIA 89 0952)." (Note, The Proper Use of Referenda in Rezoning (1977} 29 Stan. L. Rev. 819, 822, fn. 18.) \ [Nov. !'978] CENTRAL RECORDS 510 FISHMAN V. CITY OF PALO ALTO 86 CaI.App.3d 506; 150 Cal. Rptr. 326 (2) A case closely analogous to ours is Lincoln Property Co. No. 41, Inc. v. Law, supra, 45 Cal.App.3d 230, which also concerned a P-C district. The legislative act in the instant case occurred in 1958 with the passage of Ordinance 1802, rezoning 101 Alma Street into a P-C district and permitting construction of a high-rise apartment building there. The Palo Alto City Council thereby prescribed a new policy or plan; it declared a public purpose concerning land use at 101 Alma and made provisions for the ways and means of accomplishing that purpose by adopting the development plans. Resolution 5382, which modified the development plans approved by the 1955 ordinance, is merely an administrative act pursuant to the planned community zoning already adopted by the city councir: The resolution, in the view of the city council, carried out the policies and purposes of the P-C district already declared in the 1958 ordinance. Persuasive in this regard is the trial court's reasoning that the city has allowed the association only to cover existing parking spaces, not, e.g., to convert new land into a parking lot or garage.. Approval of the parking enclosure did not amount to a substantial alteration of the P-C. district and therefore was not tantamount to a rezoning of the district. Cases holding land use modifications to be legislative acts subject to referenda involved substantial land use changes. (See, e.g., Wheelwright v. County of Matin, supra, 2 Cal.3d 448, 457-458 [construction of access road to previously planned community; "Road- ways are of sufficient public interest and concern to weight the scales in favor of construing this ordinance as being legislative and to be well within the referendum powers reserved by the people .... "(p. 458)]; Johnston v. City of Claremont (1958) 49 Cal.2d 826, 832 [323 P.2d 71] [change of property from single family residential zone to commercial zone], dis. on other grds., Associated Home Builders etc., v. City of Livermore (1976) 18 Cal.3d 582, 596 n. 14 [135 CaI.Rptr. 41, 557 P.2d 473]; Hughes v. City of Lincoln (1965) 232 Cal.App.2d 741,746-747 [43 Cal. Rptr. 306] [decision to fluoridate water]; O'Loane v. O'Rourke (1965) 231 Cal. App.2d 774, 784-785 [42 Cal. Rptr. 283] [resolution adopting general plan for city]; Reagan v. City of Sausalito (1962)210 Cal. App.2d 618, 624 [26 Cal. Rptr. 775] [resolution to acquire land for city park]; see also Note, The Scope of the Initiative and Referendum in California (1966) 54 Cal. L. Rev. 1717, 1734-1736.) The brief of amicus curiae Palo Alto Civic League raises an interesting argument, based on the nature of planned community districts, that any change of the regulations applicable to such a district is always a zoning change and therefore a legislative act subject to referendum. The argument runs as follows: FISHMAN V. CITY OF PALCO ALTO 86 Cal.App.3d 506:150 CaI. Rptr. 326 511 I. The development plan of a planned community district is the zone applicable to the proper~y and defines the requirements of that zone (see Palo Alto Mun. Code, ch. 18.68.070(a)). ~. Resolution 5382, the subject of this appeal, modified the develop- merit plan for 101 Alma Street. 3. Resolution 5382 therefore amended the zoning of the property. 4. A zoning ordinance constitutes the exercise of a legislative function. (Johnston v. City of Clarernont, supra, 49 Cal.2d 826, 834-83~5.) 5. The amendment of a legislative act-is itself a legislative act. "Rezoning of use districts or changes of uses and restrictions within a district can be accomplished only through an amendment of a zoning ordinance, and the amendment must be made in the same mode as its original enactment." (Johnston v. City of Clarernont, supra, 49 Cal.2d at p. 835.) Similarly,-"A zoning ordinance as amended becomes in effect a different ordinance. Even if it be granted that a reclassification of an area as small as that involved in the instant case cannot be said to effect a new scheme, the same rule must necessarily be followed as would be applied if a larger-,area had been reclassified, and it may be observed that a piecemeal rezoning of small areas may result in a plan differing in vital particulars from that originally contemplated." (Dwyer v. City Council (1927) 200 Cal. 505, 515 [253 P. 932] [residential property rezoned commercial].) 6. Because Resolution 5382 modified the development plan and therefore amounted to a zoning change, the resolution was a legislative act subject {o a referendum. Conclusion 6 does not follow because of faulty premises at 3 and 5. The language in Dwyer that "A zoning ordinance as amended becomes in effect a different ordinance" must be read in the context of the factual setting there. Dwyer involved the rezoning of property from residential to commercial use, a significantly greater alteration of land use than in the present appeal. Second, the language quoted from Johnston is dictum. Johnston, like Dwyer, held only that rezoning from residential to commercial use is a legislative act subject to a referendum. Both Dwyer and Johnston recognize that only a legislative act, not an administrative act, is subject to referendum. (200 Cal. at p. 511; 49 Cal.2d at p. 834.) Finally, treating any modification of a P-C district as a legislative act is [Nov. 1978] 512 FISHMAN V. CITY OF PALO ALTO 86 CaLApp.3d 506; 150 CaLRp, tr. 326 \ inconsistent with the policy behind the legislativ'e--~dministrative tes~; which permits the exercise of some judgment based on the costs and benefits of the referendum procedure. Some'changes in the development plan of a planned community · district may well be legislative and subject to referendum. That determin- ation must be made on a case-by-cas~ basis. Here, Resolution 5382 did ' not amount to a substantial alteration of the P-C district, was not tantamount to a rezoning of the district, and therefore was not subject to .... referendum. The judgment 'is affirmed. Caldecott, P. J., and Brunn, J.,* concurred. ~' A petition for a rehearing was denied December 8, 1978, and appellants' petition for a hearing by the. Supreme Court was denied February 1, 1979. *Assigned by the Chairperson of the Judicial Council. " CENTRAL RECO~D,~ [Nov. 1978] 1008 FRIENDS OF MOUNT DIABLO ¥. COUNTY OF CONTRA COSTA 72 Cal.Z~pp.3d 1006; 139.Cal. Rptr. 469 administration of government, and it i~; for this reason that the referendum power is withheld in cases of administrative decisions. [See Am.Jur.2d, Initiative and Referendum, §§ 11, 12.] COUNSEL Laurens H. Silver and Linda A. Mogdy for Plaintiffs and Appellants. John B. Clausen, County Counsel, and Victor J. Westman, Assistant County Counsel, for Defendants and Respondents. Van Voorhis & Skaggs and Daniel Van Voorhis for Interveners and Respondents, · OPINION DEVINE, J.*-- (la) The question before us is whether the resolution of the Board of Supervisors of Contra Costa County approving a reorganization of special districts is subject to referendum by the electors of the county. This question in turn must be answered by the solution to this problem: Is the action of the board of supervisors taken under the provisions of the District Reorganization Act of 1965 (Gov. Code, § 56000 et seq.) legislative action or is it an administrative decision made under the authority of the act and done in order to carry out state policy? Upon petition for writ of mandate, the trial court held that the resolution is an administrative action and denied referendum. We agree and we affirm. On September 3, 1974, the board of supervisors approved by ordinance the rezoning of Blackhawk Ranch, a vast tract to the south of Mount Diablo State Park, to a Planned United District. This would allow *Retired Presiding Justice of the Court of Appeal sitting under assignment by the Chairperson of the Judicial Council. CENTRA1 RE. CORD~, FII.K NO.: ...:-. [Aug. 19771 FRIENDS OF MOUNT DIABLO p. COUNTY OF CONTRA COSTA 72 Cal. App.3d 1006; 139 Cal. Rptr. 469 1009 the construction of 4,200 housing units on 4,800 acres,~ shopping areas, golf courses and recreation areas, and would require certain dedications for public parks and other purposes. The necessary environmental impact report (EIR) was approved. Although the rezoning ordinance was subject to referendum (Dwyer v. City Council (1927) 200 Cal. 505 [253 P. 932]; Johnston v. City of Clarernon[(1958) 49 Cal.2d 826 [323 P.2d 71]), the resolution was allowed to become law, unchallenged by the process of referendum.2 Following the rezoning, Blackhawk made the necessary dedication of land and the Local Agency Formation Commis- sion (LAFCO) decided that the spheres of influence for the Central Contra Costa Sanitary District and the East Bay Municipal Utilities District (EBMUD) should extend to and include all of Blackhawk's property, as permitted by Government Code section 56140 et seh. On April I0, 1975, Blackhawk petitioned for reorganization of districts within the rezoned area for the purpose of accomplishing an orderly arrangement of the various districts in which the area is situated. Twenty-one changes frOm the existing patterns were made. The petition was duly heard by LAFCO of the county as directed by Government Code sections 56000-56550. It was necessary to obtain consent of Alameda County under provisions of sections 56012 and 56012.5 of the Government Code because that county is the "principal county" as to the EBMUD. The consent was obtained. The LAFCO staff, its executive officer and all of the districts recommended the reorganization, and _ LAFCO approved. As required by Government Code sections 56274 and 56291, the matter was then submitted to the Contra Costa County Board 'of Supervisors which, following the hearing required by Government Code section 56434, passed a resolution, the object of the referendum, ordering the reorganization as approved by LAFCO. Under the statute, the board of supervisors is required to approve or to disapprove the reorganization; it has no power to modify, but it may file a written application with LAFCO, requesting any addition, deletion, amendment or revision of LAFCO's resolution. (Gov. Code, § 56275.) The board requested certain amendments, one of which was granted and two were denied. :Possibly (the record is not clear) a lesser number actually is in prospect. 2There is a suit against the county and Blackhawk Corporation in which the, adeouacy of the EIR is challenged, and the project is asserted to conflict with the county s General Plan. Writ of mandate was sought. This was denied by the superior court. An appeal is pending. [Aug. 1977] ~ENTRAi,,, RECORD~ 1010 FRIENDS OF MOUNT DIABLO v. COUNTY OF CONTRA COSTA 72 Cal.App.3d 100\6; 139 Cal. Rptr. 469 On July 3, 1975, the certification of completion of the reorganization was filed with the Secretary of State, and on July 8, 1975, the Secretary of State's certificate of filing was recorded in Alameda and Contra Costa Counties, thus causing the reorganization to be effective within the meaning of the District Reorganization Act (DRA). (Gov. Code, §§ 56452-56456.) Petition for referendum followed. The board of supervi- sors declined to take the action requested by the petitioners either to rescind the approval of the reorganization or to set the matter for election. The petition for writ of mandate prays that. respondents be compelled to have an election ton the reorganization or tb repeal the resolution. -'- (2) It is well to commence our discussion of the law by stating recognition of the principle stressed by appellants that the great reserved power of the people in respect of referendum (and initiative) must be construed liberally. (Associated Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, 591 [135 Cal. Rptr. 41, 557 P.2d 473]; Hunt v. Mayor & Council of Rigerside (1948) 31 Cal.2d 619, 628 [19I P.2d 426]; Collins v. City & Co. ofS. F. (1952) 112 Cal. App.2d 719, 729 [247 P.2d 362]; Mervynne v. Acker (1961) 189 CaI.App.2d 558, 564 [11 Cal. Rptr. 340].) But we note the limitation made by the Supreme Court in its opinion holding that general law cities may adopt zoning ordinances by initiative, Associated Home Builders etc., Inc. v. City of Livermore, sut~ra, in the passage at page 596, footnote 14, which says: "We distinguish those decisions which bar the use of the initiative and referendum in a situation in which the state's system of regulation over a matter of statewide concern is so pervasive as to convert the local legislative body into an administrative agent of the state. (Housing Authority v. Superior Court (I950) 35 Cal.2d 550 [219 P.2d 457]; Simt~son v. Hite (1950) 36 Cal.2d 125 [222 P.2d 225]; Riedman v. Brison (1933) 217 Cal. 383 [18 P.2d 947]; cf. Hughes v. City of Lincoln (1965) 232 Cal.App.2d 741 [43 Cal.Rptr. 306].) In. enacting the instant ordinance, the voters of Liver- more were acting ~n a legislative, not an administrative, capacity. (See San Diego Bldg. Contractors Assn. v. City Council, supra' 13 Cal.3d 205, 212-213, fn. 5 [118 Cal. Rptr. 146, 529 P.2d 570].)" (3) That the DRA is an encompassing regulation over a matter of such statewide concern as to convert the local legislative body into an administrative agent of the state is demonstrated by its history, its purpose and its content. [Aug. 1977] FRIENDS OF MOUNT DIABLO V. COUNTY OF CONTRA COSTA 72 Cal.App.3d 1006; 139 Cal.Rptr. 469 1011 The history of the DRA is described in a monograph entitled California Local Agency Formation Commissions (1970), published by the Institute of Governmental Studies of the University of California, Berkeley, written by Richard LeGates, and in Del Paso Recreation & Park Dist. v. Board of Supervisors (1973) 33 Cal.App.3d 483 [109 Cal. Rptr. 169]. In brief, the DRA was designed to halt the proliferation of special districts, to contain urban sprawl and to deal with annexations, some of which had been designed to bring a high tax base within a city, others "defensively" to prevent annexation. (LeGates, supra, pp. 2-8.) LAFCO has been described as the Legislature's "watchdog" to guard against wasteful duplication of services. (City of Ceres v. City of Modesto (1969) 274 Cal.App.2d 545 [79 Cal. Rptr. 168].) Plainly, the ~atter was of pervasive state concern. The Attorney General has given his opinion that LAFCO's are created by the'state for the purpose of executing a part of the functions of state government even though these are locally performed. (45 Ops. Cal.Atty. Gen. 82 (1965).) It has been held that LAFCO is a public entity created by legislative fiat, is a body of special and limited jurisdiction, exercising the function of achieving the fundamental policies which have been determined by the Legislature. (Simi Valley Recreation & Park Dist. v. Local~lgency Formation Corn. (1975) 51 C'al.App.3d 648, 670, 688 [124 Cal. Rptr. 635].) The nature of LAFCO's acts fits the description given in Walker v. City of Salinas (1976) 56 Cal.App.3d 711 [128 Cal. Rptr. 832] (wherein it was held that referendum does not apply to proceedings under the Community Development Law, Health & Saf. Code, §§ 33000-33738). At page 716, the court, borrowing language from Hughes v. City of Lincoln (1965) 232 Cal. App.2d 741, 745 [43 Cal. Rptr. 306], stated: "'If the subject is one of statewide concern ~n which the Legislature has delegated decision-making power, not to the local electors, but to the local council or board as the state's designated agent for local implemen- tation of state policy, the action receives an "administrative" characteri- zation, hence is outside the scope of the initiative and referendum. [Citations.]'" special complication in Contra ~osta County, [Aug. 1977] Moreover, the DRA does provide for elections in certain situations at the LAFCO step but these admittedly are not present in this case. In the instances in which elections are permitted, the voting is by the inhabitants of the district, s, not by the electors of the county. There is a this case: if referendum were mandated in the electors of Alameda County would not CENTRAL RE 1012 FRIENDS OF MOUNT DIABLO v. COUNTY OF CONTRA COSTA 72 Cal.App.3d 1006; 139 Cal. Rptr. 469 participate in the election because of the cession referred to above under Government Code sections 56012 and 56012.5. Here, there is evidence that the Legislature, by providing such cession from county to county, did not regard the matter as truly legislative. Indeed, if the cession were a legislative act, it would seem that it would have to be subject to referendum in Alameda County. Petitioners are not attempting to apply referendum to the actions of LAFCO, but to those of the board of supervisors. But its actions under DRA are of the same character as are those of LAFCO. Although the board of supervisors is primarily the legislative body of a county (Gov. Code, § 50002), .it has many nonlegislative functions. (13 Cal. Jur.2d, Counties, § 28, p. 376.) A brief analysis of its functions under the DRA shows that these are merely supplemental to the accomplishment of purposes of the state. Ordinarily, a legislative body may initiate the process of lawmaking; but under the DRA, the board of supervisors cannot act so; it acts upon receiving the proposed reorganization from LAFCO (Gov. Code, §§ 56274, 56291) or it applies to LAFCO (Gov. Code, § 56195). Ordinarily, a legislative body may amend proposed legislation; the board cannot change proposed reorganization under the DRA (Gov. Code, § 56275). Ordinarily, a legislative body need not ask anyone to agree to a desired change; under the DRA, the 'board must request LAFCO for any alteration (Gov. Code, § 56275). ApPellants cite Norlund v. Thorpe (1973) 34 Cal.App.3d 672 [110 Cal. Rptr. 246] as authority for the proposition that even if a subject be of statewide concern, in that the Legislature has provided by statute how a local legislative body shall act in attaining a desired result, referendum' may lie. 'But Norlund is readily distinguishable; it relates to annexation of land to a city; the court believed that a single annexation to one city would not be of public concern to others hundreds of miles away. But the chaotic condition of heterogeneous districts throughout the state was and is a matter of concern to the entire commonwealth, as described above. The annexation statute (Gov. Code, § 35310.1) provides that the resolution of annexation shall be considered the same as an ordi- nance-thus deferring the effective date, a prime purpose of which is to preserve the right of referendum. But when the resolution ordering reorganization is filed with the Secretary of State, it is effective as of the date fixed in the resolution (Gov. Code, § 56456), or if no date is fixed, on the date of recordation with the county recorder (or recorders if filed in more than one county). (Gov. Code, § 56455.) No intent by the Legislature to allow time to permit the process of referendum appears. [Aug. 1977] CENTRAL PILE NO,, ..... ~ '~/"~'/.~.....~c~'('~ FRIENDS OF MOUNT DIABLO V. COUNTY OF CONTRA COSTA 72 Cal. App.3d 1006; 139 Cal. Rptr. 469 1013 (lb) Finally, the conclusion is inescapable from the history of the events that petitioners' real quarrel is with the rezoning itself and that the attack upon the reorganization of the districts (which, of course, was accomplished for the purpose of facilitating the development project) is designed to impede the development. But the rezoning has been enacted by the representatives of the electors, the board of supervisors. Unresisted by referendum, it stands as law. The reorganizing process provided by the DRA, although in this particular case ancillary to the object of the rezoning, may be used in effecting changes relatively small, as well as major ones. To hold that resolutions of reorganization are subject to referendum w6uld subject all of them throughout the state to uncertainty o/' effective date, to vote by the electors of the entire county whether the county be large or small (and the number of required referendum signatures inconsiderable) and, in the case of districts having interests in two or more counties, to vote by the electors of the principal county which, perhaps, had attained this position only by the statutory cession. (4) The reason for withholding referendum in cases of administrative decision is that to allow referendum to annul or delay executive or administrative, conduct would destroy the efficient administration of government. (Hopping v. Council of City of Richmond (1915) 170 Cal. 605, 611 [150 P. 977]; Lincoln Property Co. No. 41, Inc. v. Law (1975) 45 .Cal.App.3d 230 [119 Cal.Rptr. 292]; Duran v. Cassidy (1972) 28 Cal.App.3d 574, 581 [104 Cal.Rptr. 793]; Martin v. Smith (1960) 184 Cal. App.2d 571 [7 Cal. Rptr. 725].) The judgment denying the petition for writ of mandate is affirmed. Scott, Acting P. J., and Good, J.,* concurred. Appellants' petition for a hearing by the Supreme Court was denied November 30, 1977. *Retired judge of the superior court sitting under assignment by the Chairperson of the Judicial Council. [Aug. 1977] ELECTIONS CODE SECTIONS RE: P~FERENDUM Article 2 REFERENDUM Sec. , 4050. Effective date of ordinances. 4050.1. Revenue bonds; joint powers entity; effective date of ordinances; petitions; ballot wording. 4051. Petition signed by 10 percent of voters. 4051a. Repealed. 4051.1. to 4051.3. Repealed. 4052. Affidavits re petition sections. 4053. Determination; filing. 4053.1. Repealed. 4054. Examination of signatures. 4055. Submission to voters; effect of adverse vote. 4056. Circulation time limit. 4056.5. Repealed. 4057. 4058. 4059. 4060. 4061. Initiative provisions applicable. Veto. ~ Date of final passage. Election duties. ~' Scope of chapter. Article ~ was added by ~tats.1976, c. ~48, § 3. Cress References Abuse of initiative, referendum and recall, see 8 29720 et seq. Constitutional provisions, see Const. Art. 4, 8 1. Initiative and referendum, County elections, see 88 3700 et seq., 3750 et seq. General provisions, see 8 29710 et seq. State laws and constitutional provisions, see 8 3500 et seq. Ordinances, see Government Code § 36900 et seq. § 4050. Effective date of ordinances No ordinance shall become effective until 30 days from and after the date of its final passage, except: (a) An ordinance calling or otherwise relating to an election. (b) An ordinance for the immediate preservation of the public peace, health or safety, which contains a declaration of, and the facts constituting, its urgency and is passed by a four-fifths vote of the city council. (c) Ordinances relating to street improvement proceedings. (d) Other ordinances governed by particular provisions of state law prescribing the manner of their passage and adoption. (Added by Stats.1976, c. 248, § 3.) -1- § 4050.1. Revenue bonds; joint powers entity; effective date of ordinances; petitions; ballot wording (a) Notwithstanding the provisions of Section 4050, ordinances authorizing the issuance of revenue bonds by a city as part of a joint powers entity pursuant to Section 6547 of the Government Code shall not take effect for 60 days. (b) When the number of votes cast for all candidates for Gover- nor at the last gubernatorial election within the boundaries of the city described in subdivision (a) exceeds 500,000, such ordinance is sub- ject to referendum upon presentation of a petition bearing signatures of at least 5 percent of the entire vote cast within the boundaries of the city for all candidates for Governor at the last gubernatorial elec- tion. When the number of votes cast for all candidates for Governor at the last gubernatorial election within the boundaries of the city is less than 500,000, such ordinance is subject to referendum upon pre- sentation of a petition bearing signatures of at least 10 percent of the entire vote c~st withi~'~he boundaries of the dity for all candidates for Governor at the last gubernatorial election. (c) For the purpose of submitting the question to the voters pur- suant to subdivision (b), the ballot wording shall approximate the following: "Shall the , as a member of the (city name) , authorize the issuance of revenue bonds (joint powers entity name) by the joint powers entity in the amount of $ pursuant to ordi- nance number , dated __., such bonds to be used for the following purposes and to be redeemed in the following manner: 7" (Added by Stats.1976, c. 754, § 2.) § 4051. Petition signed by 10 percent of voters If a petition protesting against the adoption of an ordinance and circulated by any qualified registered voter of the city, is submitted to the clerk of the legislative body of the city within 30 days of the adoption of the ordinance, and is signed by not less than 10 percent of the voters of the city according to the county clerk's last official re- port of registration to the Secretary of State, or, in a city with 1,000 or less registered voters, is signed by not less than 25 percent of the voters or 100 voters of the city whichever is the lesser, the effective date of the ordinance shall be suspended, and the legislative body shall reconsider the ordinance. (Added by Stats.1976, c. 248, § 3.) -2- CENTRAL § 4052. Petitions; forms; affidavits Across the top of each page of the referendum petition there shall be printed the following: "Referendum Against an Ordinance Passed by the City Council" Each section of the referendum petition shall contain the identifying number or title and text of the ordinance or the portion of the ordinance which is the subject ot: the referendum. ~ The petition sections shall be designed in the same form as specified in Section 3516. Each section shall have attached thereto the affidavit of the person soliciting the signatures. This affidavit shall be substantially in the same form as set forth in Section 3519, except that the affidavit shall declare that the circulator is a voter'of the city and shall state his or her voting address at the time of the execution of the affidavit, (Amended by Stats.1982, c. 201, p. (~75, § 1.) § 4053. Determination; filing Petitions shall be accepted for filing by the clerk and the deter- mination of the number of signatures thereon shall be made by the clerk in accordance with the provisions set forth in Sectibn 4008. (Added by Stats.1976, c. 248, § 3.) "- § 4054. Examination of signatures After the petition has been filed, as herein provided, the clerk shall examine the petition and certify the results in the same manner as are county petitions in Sections 3707 and 3708 except that, for the purposes of this section, references to the board of supervisors shall be treated as references to the legislative body of the city. This petition shall be preserved by the city clerk in the same manner as are county measures as set forth in Section '3756. (Added by Stats.1976, c. 248, § 3.) § 4055. Submission to voters; time for holding election; effect of adverse vote If the legislative body does not entirely repeal the ordinance against which the petition is filed, the legislative body shall submit the ordinance to the voters, either at a regular municipal election occurring not less than 88 days nor more than 103 days after the order of the legislative body or at a special election called for the purpose not less than 88 days after the order of the legislative body. To avoid holding more than one special election within any six months, the date for holding the special election may be fixed later than 103 days, but at as early a date as practicable after the expiration of the six months from the last special election. When it is legally possible to hold a special election under this chapter within six months prior to a regular municipal,election, the legislative body may submit the proposed ordinance at the regular election instead of at a special election. The ordinance shall not become effective until a majority of the voters voting on the ordinance vote in favor of it. If the legislative body repeals the ordinance or submits the ordinance to the voters and a majority of the voters voting on the ordinance do not vote in favor of it, the · ordinance shall not again be enacted by the legislative body for a period of one year after the date of its repeal by the legislative body or disapproval by the voters. (Amended by Stats.1980, c. 710, p. 2128, § 8; Stats.1980, c. 1287, p. 4360, § 11.7, urgency, elf. Sept. 30, 1980; Stats.1981, c. 1045, p. 4030, § 7; Stats.1983, c. 812, p. __, § 6.) -3- § 4056. Circulation time limit Signatures upon petitions, and sections thereof, shall be secured, and the petition, together with all sections thereof, shall be filed within 30 days from the date of the adoption of the ordinance to which it relates. If such petitions are not filed within the time per- mitted by this section, the same shall be void for all purposes. (Added by Stats.1976, c. 248, § 3.) § 4057. Initiative provisions applicable Elections, pursuant to this article, shah be held in accordance with the provisions of Section's 4013 to 4020, inclusive. (Added by Stats.i976, c. 248, § 3.) § 4058. Veto Whenever the legislative body of a city has voted in favor of the repeal of an ordinance protested against by the voters, as provided in this article, and the mayor, or like officer, has vetoed the repeal, the failure of the legislative body to pass the repeal over the veto shall be deemed a refusal to repeal the ordinance. (Added by Stats.1976, c. 248, § 3.) § 4059. Date of final passage If approval of an ordinance by the mayor or like officer is neces- sary, the date of approval shall be deemed the date of its final pas- sage by the legislative body within the meaning of this article. If an ordinance becomes law when the time for approval or veto has expired and no action has been taken, the date of the expiration of that time shall be deemed the date of its final passage by the legis- lative body within the meaning of this article. (Added by Stats.1976, c. 248, § 3.) § 4060. Election duties Any duty imposed in this chapter upon the legislative body of a city in regard to calling a municipal election, or in connection with an election called pursuant to this chapter, is likewise imposed upon any officer having any duty to perform connected with the election, so far as may be necessary to carry out the provisions of this chap- ter. (Added by Stats.1976, c. 248, § 3.) -4- CENTRAL RECORDS OFFICE OF THE CITY C LI:" R K (415) 877-8s[e September 13, 1985 Ms. Edna Donaldson San Mateo Times P.O. Box 5400 San Mateo, CA 94402 Subject: Legal Publication - Notice of Special Election Dear Ms. Donaldson: Please find enclosed for publication in the South San Francisco Enterprise Journal a Notice of Special .Election. Please publish on: Wednesday, September 18, 1985 .and ' ' Wednesday, September 25, 1985 (Twice only) · Please acknoWledge receipt of the above-referenced publication by signing below and send a Proof of Publication to this Office. Very truly yours, Barbara A. Battaya ~ RECEIVED City Clerk SEP ! 2 )985 BAB: cg s~~ ~,rnr~ I~ tim & Enclosure The undersigned acknowledges receipt of the above-referenced advertisement. South San Francisco Enterprise Journal CE~ J r(AL. 400 GRAND AVENUE -- P, O, BOX 711 - 94080 NOTICE AND PROCLAMATION OF SPECIAL MUNICIPAL ELECTION CITY OF SOUTH SAN FRANCISCO NOTICE AND PROCLAMATION ARE HEREBY GIVEN AND MADE by the City Council of the City of South San Francisco, San Mateo County, California, that a Special Municipal Election has been called and will be held on Tuesday, the lOth day of December 1985, by Resolution No. 202-85 adopted September 11, 1985, for the pur- pose of submitting to the qualified voters of said City the following referendum measure: REFERENDUM AGAINST A RESOLUTION PASSED BY THE CITY COUNCIL We, the undersigned residents and registered, qualified voters of the City of South San Francisco, protest against the adoption of Resolution No. 156-85, by the City Council of the City of South San Francisco, entitled, "A Resolution Approving and Authorizing Execution of an Amendment to the San Bruno Mountain Habitat Area Conservation Plan to Permit Site-Specific Geotechnical Repairs", the text of which is set forth below. We respectfully request that the City Council reconsider Resolution No. 156-85 and either repeal it entirely or submit it to the voters, either at a regular municipal election or at a spe- cial election called for the purpose. TEXT OF RESOLUTION NO. 156-85: A RESOLUTION APPROVING AND AUTHORIZING EXECUTION OF AN AMENDMENT TO THE SAN BRUNO MOUNTAIN AREA HABITAT CONSERVATION PLAN TO PERMIT SITE-SPECIFIC GEOTECHNICAL REPAIRS "WHEREAS, on July 10, 1985, this Council conducted a public hearing on a proposed amendment to the San Bruno Mountain Area Habitat Conservation Plan (HCP), the Agreement with respect to the San Bruno Mountain Area Habitat Conservation Plan (HCP Agreement) and a permit issued pursuant to Section lO(a) of the Endangered Species Act (Section lO(a) Permit), which amendment would per- mit site-specific geotechnical repairs on the South Slope of San Bruno Mountain; and WHEREAS, this Council has considered the Final Supplemental Environmental Impact Report and Environmental Assessment (Final EIR/EA Supplement) and the Addendum thereto previously certified by the San Mateo County Board of Supervisors, and upon conclusion of said hearing, adopted findings, and adopted a Statement of Overriding Considerations, all in accordance with the California Environmental Quality Act (CEQA) and National Environmental Policy Act (NEPA); and WHEREAS, the Council at said hearing adopted Alternative 2 as identified in the final EIR/EA supplement, as the project to be implemented pursuant to the amendJ ment; and WHEREAS, said amendment, entitled 'Amendment to San Bruno Mountain Area Habitat Conservation Plan to Permit Site-Specific Geotechnical Repairs' reference to which is hereby made for further particulars, has been presented to thiSRC~(~ for its review and approval; and (~NTRAk- WHEREAS, this Council has reviewed and accepted the Biology Study, required by Section IXB of the HCP Agreement, prepared with respect to said Amendment; and WHEREAS, this Council has examined and approved said Amendment as to form and content and now desires to enter into same; NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of South San Francisco that: 1. Approval of Agreement. The Agreement entitled 'Amendment to San Bruno Mountain Area Habitat Conservation Plan to Permit Site-Specific Geotechnical Repairs' is hereby approved, and a copy of said Amendment is attached hereto as Exhibit '1'. 2. Execution of Agreement. The Mayor is hereby authorized to execute said Amendment on behalf of the City, and the City Clerk attest his signature thereto. 3. Actions by City Manager. The City Manager is hereby authorized and directed to take all actions and sign all other documents necessary on behalf of the City of South San Francisco, accomplish the Amendment to the HCP, the HCP Agreement and the Section lO(a) Permit to permit the Site-Specific Geotechnical Repairs identified in said Amendment to the HCP. I hereby certify that the foregoing Resolution was regularly introduced and adopted by the City Council of the City of South San Francisco at a regular meeting held on the lOth day of July, 1985, by the following vote: AYES: NOES: ABSENT: Councilmembers Richard A. Haffey, Gus Nicolopulos and Roberta Cerri Teglia Councilmember Mark N. Addiego Councilmember Emanuele N. Damonte ATTEST: /s/ Barbara A. Battaya City Clerk". (Copy of Amendment, Exhibit 1, is available upon request at the City Clerk's Office, 400 Grand Avenue, South San Francisco (415) 877-8518). NOTE IS FURTHER GIVEN THAT: 1. The POLLS shall be opened at 7:00 a.m. and shall be kept open until 8:00 p.m. of said day when the polls shall be closed, except as otherwise pro- vided in Section 14301 of the Elections Code. 2. ARGUMENTS in support of the measure shall be filed with the City Clerk on or before September 25, 1985 and REBUTTAL ARGUMENTS shall be filed with the City Clerk on or before October 15, 1985. 3. THIS SPECIAL ELECTION is not consolidated with any other election on December 10, 1985. By order of the City Council of the City of South San Francisco, County of San Mateo, State of California, at a Regular Meeting September 11, 1985. Dated: September 13, 1985 rbara A. Battaya, City CI~ City of South San Francisco cENTRAL. R~'GORD~ SOUTH SLOPE REFERENDUM PETITION RECEIVED 8/9/85 11:14 a.m. in the City Clerk's Office During the past 30 days our group, the South San Francisco Citizens For Our Mountain gathered 3314 signatures of South San Francisco registered voters who wished to orotest the Cit?? Council's a'p~rroval of Dean's latest proposal-for the develooment of the South Slooe of San Bruno Mountain. These South San Francisco voters expressed strong over~,~elming o0position to the project in their comments while signin~ the petition. They !eft no doubt that the City Council is co~olete!y out of touch with the community's feeling concerning the Dean project. ~ever have so many people in South San Francisco formally e~xpressed such opoosition to a council actior~. End this is city which h~s tra~ditionally been tolerant ~nd supportive of ~ve 1 o ome nt. But the overwhelming m~Jority of South San Francisco residents who signed the referendum petition said it loudly rand clearly tha~t the~ ~ra~r the line on the Dean project.~ The words used r~ost often by the petition signers to d'escribe~ the South Elope project w~re ugly, unsafe and overbuilt. This petition is Just the I~test in ~ long line of citizen opposition to the development. Recently, for instance, the Council received ~00 letters in opposition. ~t~ this time the petition which ~e ~re submitting asks that the Council either reconsider its decision of aporoval or in the cause of preserving the 8emocratic process in South San Francisco that it submit the issue to the voters at an election. Chairman South S.F. Citizens For Our Mountsin.