Friends of Mount Diablo v. County of Contra Costa

Opinion

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

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 Riverside (1948) 31 Cal.2d 619 , 628 [ 191 P.2d 426 ]; Collins v. City & Co. of S.F. (1952) 112 Cal.App.2d 719 , 729 [ 247 P.2d 362 ]; Mervynne v. Acker (1961) 189 Cal.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, supra, 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 (1950) 35 Cal.2d 550 [ 219 P.2d 457 ]; Simpson 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 Livermore were acting in 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 ].)”

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.

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 Agency Formation Com. (1975) 51 Cal.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: “ Tf the subject is one of statewide concern in 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 implementation of state policy, the action receives an “administrative” characterization, hence is outside the scope of the initiative and referendum. [Citations.]’ ”

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 districts, not by the electors of the county. There is a special complication in this case: if referendum were mandated in Contra Costa County, the electors of Alameda County would not

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 ordinance—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.