Metropolitan News-Enterprise


Wednesday, November 16, 2016


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City Council May Propose That Initiative Be Repealed, Court of Appeal Rules


By a MetNews Staff Writer


A city council may propose, for voters’ consideration, an ordinance repealing an earlier ordinance that was enacted by initiative, the Court of Appeal for this district ruled yesterday.

Presiding Justice Dennis Perluss, writing for Div. Seven, rejected claims by a mobilehome park operator that the El Monte City Council exceeded its authority under the state Constitution when, in 2012, it successfully proposed that voters repeal a 12-year-old initiative that barred rent control.

The argument by Brookside Investments, Ltd., Perluss said, is based on a “fundamentally unsound” reading of a state Supreme Court decision.

Brookside sued the city to enjoin enforcement of its 2013 ordinance imposing rent controls on mobilehome parks of 100 or more spaces. It claimed that the ordinance was invalid because the 1990 initiative prohibited rent control, and that the 2012 vote to repeal the initiative was invalid because the earlier measure did not give the council authority to propose it.

Allegedly excessive mobilehome park rents became an issue in El Monte in 1988, when the council approved an ordinance requiring tenants and owners in parks of 60 or more spaces to arbitrate rent disputes. The park owners responded by supporting the 1990 Mobilehome Tenant Rent Assistance Program initiative, or MTRAP. MTRAP repealed the arbitration ordinance, barred rent control, and created a requirement that each park rent up to 10 percent of its spaces to senior citizens receiving a 10 percent discount on rents.

In 2012, however, the council proposed a new ordinance, repealing the earlier initiative and authorizing the council to enact rent control, which it did the following year. Brookside then sued for declaratory and injunctive relief, which was denied by Los Angeles Superior Court Judge John Shepard Wiley Jr., who granted summary judgment to the city.

Brookside based its argument on MTRAP §10, prohibiting the council from passing “any ordinance which requires or authorizes restrictions, ceilings, controls, or arbitration, mediation, administrative hearings, or trials concerning or which in any way relates to the subject of mobilehome park rents in El Monte which affects any Landlord.”

The plaintiff added an additional argument on appeal, that Art. II, §11 of the state Constitution, which grants voters in cities and counties the power to adopt legislation through the initiative process, withholds from local governing bodies (the authority to take any action at all on measures enacted by initiative—including originating ballot measures to amend or repeal a local initiative ordinance—unless the initiative ordinance itself specifically authorizes such action.

Perluss rejected both arguments.

He cited Elections Code §9222, which expressly authorizes a local governing body to submit to the voters a proposal to repeal or amend any existing ordinance or enact a new ordinance.

That section is not unconstitutional, he said, rejecting Brookside’s construction of People v. Kelly (2010) 47 Cal.4th 1008. The court held in that case that the Legislature could not prescribe a specific amount of marijuana that a qualified medical user could possess or cultivate, saying such legislation was an unauthorized amendment of Proposition 215, in violation of the constitutional provision saying that no initiative may be amended or repealed without the approval of the voters, unless such amendment or repeal is expressly permitted by the initiative.

Nothing in Kelly requires that the city council’s authority to propose that voters repeal an initiative be set forth in the initiative itself, Perluss concluded.

“The fallacy in Brookside’s argument is that the voters in 1911…expressly empowered the Legislature to establish procedures for the exercise by local voters of their right to enact ordinances by initiative,” Perluss wrote. He noted that a predecessor to §9222 already gave boards of supervisors the power to propose that voters amend or repeal initiatives, saying “the voters who enacted the 1911 constitutional amendments are presumed to have been aware of that statute…and to have anticipated that similar legislation would be adopted under the new constitutional provisions.”

Attorneys on appeal in Brookside Investments, Ltd. v.  City of El Monte, B B267081, were Edward Z. Kotkin and Elliot L. Bien for the plaintiffs and Jeffrey Z.B. Springer, Tammy Myong Hong, Ricardo Olivarez, and Joaquin Vasquez for the city.


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