A referendum on a redevelopment plan for San Francisco's Bayview and Hunters Point districts will not appear on the ballot. The First District Court of Appeal upheld a Superior Court judge's ruling that referendum proponents violated elections law by not including a copy of the redevelopment plan in referendum petitions.

The referendum petition contained the ordinance adopting the plan, but the ordinance was mostly a series of findings. All of the key ingredients – such as boundaries, eminent domain provisions, affordable housing and community development components – were in the plan, the court noted. Without being able to review the plan itself, petition signers would not understand what was at issue, the court concluded.

"[T]he focus and substance of the challenged measure was found in the text of the plan which, although incorporated by reference in the ordinance, was not attached to or included in the petition," Justice Sandra Margulies wrote for the court. This was a violation of the Elections Code.

The San Francisco Board of Supervisors approved the plan for the Bayview Hunters Point project area in mid-2006 after 10 years of planning and community outreach. The plan covers about 1,300 acres east of Highway101, near Candlestick Point. The area is largely African-American and one of the city's poorest. The plan devotes 50% of redevelopment tax increment to affordable housing, limits use of eminent domain, and emphasizes localized economic development and community enhancements (see CP&DR Redevelopment Watch, September 2006).

Bayview Hunters Point residents, however, have been skeptical of the city's intentions, fearing the city sought to gentrify the area at the expense of existing residents. After supervisors approved the redevelopment plan, a group called Defend Bayview Hunters Point Committee (DBHPC) circulated referendum petitions and gathered enough signatures to qualify the measure for the ballot. However, in September 2006, City Attorney Dennis Herrera advised the city clerk that the petition did not comply with Elections Code § 9238, which requires that each referendum petition contain "the text of the ordinance or the portion of the ordinance that is the subject of the referendum." The city clerk notified the DBHPC that she would not accept the petition. Referendum advocates went to court, but San Francisco Superior Court Judge Patrick Mahoney ruled for the city.

On appeal, DBHPC argued that Judge Mahoney had misconstrued § 9238 and relevant case law. The group argued that prior court rulings proved the group did not have to attach a document that was merely incorporated by reference in the ordinance to be voted on, nor did the group have to include an exhibit that was not physically attached to the ordinance.

In rejecting these arguments, the First District undertook an extensive discussion of the earlier cases. In Metropolitan Water Dist. v. Marquardt, (1963) 59 Cal. 2d 159, the state Supreme Court upheld the state's decision not to include the full text of the general bond law when placing a water bond on the ballot. The court accepted the state's approach because the omitted material was an existing law that would remain in place and because the general bond law "was entirely peripheral to the substance and purpose" of the water bond, Margulies explained. The situation with the redevelopment referendum was different.

In three appellate court cases, courts blocked referenda because the petitions lacked crucial exhibits of the ordinances in question. (The cases: Billig v. Voges, (1990) 223 Cal.App.3d 926; Chase v. Brooks, (1986) 187 Cal.App.3d 657; Nelson v. Carlson, (1993) 17 Cal.App.4th 732.)

"Billig, Chase and Nelson all found that exhibits incorporated into ordinances are part of the ‘text' of the ordinance for referendum petition purposes," Margulies wrote.

The DBHPC argued that none of the cases involved an exhibit that was not physically attached to the ordinance, but the court said physical attachment was unimportant. In all of the cases, courts ruled "that lengthy or highly technical documents may not be omitted from the petition if they provide necessary information for prospective signers," Margulies wrote.

"Here, the critical text enacted into law by the ordinance was the text of the plan, not the printed words of the ordinance. The plan supplied vital information about the effect of the ordinance, including the boundaries of the redevelopment project area, the allowed use of and limitations on eminent domain, the development of affordable housing, the promotion of jobs and business opportunities for local residents, and the community's role in the planning process," Margulies continued.

"We don't hold here that all documents a local legislative body chooses to incorporate by reference in or attach to an ordinance must be included in a referendum petition. We hold only that when a central purpose of the ordinance is to adopt and enact into law the contents of an incorporated or attached document, a referendum petition of the ordinance does not satisfy Elections Code § 9238 unless it includes a copy of that document," Margulies explained.

The court rejected the argument that its interpretation of the statute would burden DBHPC's free speech by requiring petition circulators to carry around huge stacks of paper. "[T]he state's interest in ensuring that prospective signers understand what they are signing fully justifies the requirement," the court ruled.

The Case:
Defend Bayview Hunters Point Committee v. City and County of San Francisco, No. A119061, 08 C.D.O.S. 13374, 2008 DJDAR 15977. Filed October 21, 2008.
The Lawyers:
For DBHPC: Michael A. Grob, (916) 441-0996.
For San Francisco: Therese M. Stewart, city attorney's office (415) 554-4700.