Another court of appeal has held that local special taxes adopted by a citizen-sponsored initiative do not require two-thirds voter approval. City of Fresno v. Fresno Building Healthy Communities, No. F080264. (5th Dist., Dec. 17, 2020).
In 2018, Fresno voters approved Measure P, a citizen-sponsored initiative that imposed a tax to fund improvements
A court of appeal ruled that provisions of the California Constitution requiring a supermajority vote for special taxes imposed by local government do not apply to a special tax enacted by local initiative. City and County of San Francisco v. All Persons Interested in the Matter of Proposition C, 51 Cal. App. 5th 703
The California Supreme Court ruled that water rates and other local utility charges are considered “taxes” for the purpose of California Constitution Article II, Section 9 and therefore exempt from the referendum process. Wilde v. City of Dunsmuir, No. S252915 (Cal. Supr. Ct., August 2, 2020).
The City of Dunsmuir adopted new water rates
Kern County’s ordinance banning marijuana dispensaries was validly reenacted because a “material change in circumstances” had occurred since the County previously repealed a similar ordinance in response to a referendum petition. County of Kern v. Alta Sierra Holistic Exchange Service, No. F077887 (5th Dist., March 6, 2020).
In 2011, the County adopted an ordinance banning medical marijuana dispensaries. Opponents of the ban presented a valid referendum petition to the County. In response, the County Board of Supervisors repealed the 2011 ordinance.
In 2016, the County adopted an urgency measure placing a moratorium on new medical marijuana dispensaries. Later that year, California voters passed Proposition 64, a statewide initiative legalizing recreational marijuana. In 2017, the County adopted an ordinance declaring the operation of both recreational and medical marijuana dispensaries a public nuisance.
The County brought nuisance abatement proceedings against the defendant marijuana dispensaries. Defendants argued that both the 2016 and 2017 ordinances violated the Elections Code by reenacting an “essential feature” of the 2011 ordinance despite the successful referendum petition. The appellate court disagreed and crafted a new rule for determining the circumstances under which a county may reenact essential features of an ordinance repealed by referendum.
The Material-Change-in-Circumstances Test
Elections Code section 9145, which governs county referenda procedures, does not provide a time limit for reenacting ordinances previously repealed by referenda. This contrasts with Elections Code section 9241, which prohibits cities from reenacting a protested ordinance within a year after the ordinance was disapproved by the voters. Analyzing the two statutes, the appellate court determined that the legislature’s silence in section 9145 on the “question of procedure involving the protection of the referendum power” left it to the court to create procedures to protect the power.
Continue Reading Counties May Reenact Essential Features of an Ordinance Previously Repealed by Referendum After a “Material Change in Circumstances”