Legal Opinion Does Not Reflect History of Citizen Votes on Zoning Reclassification
” … and no zones shall be reclassified without submitting the question to a vote at a general or special election.” Section 9.02 of the Piedmont City Charter
The City’s refusal to submit new proposed reclassified City zones to a vote by the citizens rests on the meaning of the word “reclassified” in the City Charter. A newly released undated, unsigned legal opinion relies on a 2017 definition of “reclassification” inserted in the City Code, but not submitted to the voters as an amendment to the City Charter.
History shows Piedmont citizens have been urged to vote approval of “reclassifications” of City zones at general or special elections in recent decades, yet the newly released legal opinion ignores these votes.
The City’s legal conclusions are inconsistent with the City Charter, City practices, and ballot measure history of asking Piedmont voters to approve zoning changes and Conditional Use Permit processes.
(Read the City’s legal opinion here)
No legal eagle here so I welcome learned attorneys to explain what I have wrong about the City Attorney’s opinion.
“Statutory construction”: a legal way of saying words matter and the simplest interpretation is best. By that definition, I think the City has it wrong. The City defines a zone change by either a redrawing of the map or a reclassification of the zone. But both achieve the same result – a change in the total area of the zone – so why use two terms? Why doesn’t the Charter just specify no change to the size of the zone shall occur without a vote? I think the simplest answer is that the Charter intended for reclassification to mean that a change in use, not just area, requires a vote. The opinion cites the use of “extrinsic aids”, namely administrative interpretation, to support its position. There are other aids – residents who worked on the Charter revision (and still reside in Piedmont) and minutes from those and other meetings – have they been consulted?
Can changes made to the City Code (the 2017 amendment) override the City Charter which can only be amended by a vote of the public? The City’s interpretation has the cart before the horse. 17.62.030.C addresses the reclassification of a property, not a “district”. Extrapolating this interpretation to a whole zone doesn’t seem supported by that Code section.
The legislative history speaks to what a property owner and the City do when either “propose” to reclassify a zone – that does not dismiss the requirement that the proposal be voted on. The one exception is Section 17.36.5 when all the owners of a property agree to be reclassified to zone A (private land). What does that have to do with reclassification of Zone B (public land)? By analogy, reclassifying zone B would also require all owners (the voters) to agree.
I think the best that can be said of the City Attorney’s opinion is that the Charter is open to “reasonable interpretation”.
The footnote to the legal opinion cites examples of zone reclassifications since January 2006 to support its conclusion that no vote is required to reclassify a zone. Visit this site to learn more about these “modifications”: https://piedmont.ca.gov/government/city_council/staff_reports. Searching through the staff reports you will find reports associated with the dates given in the footnote. I assume that is what the footnote refers to, which could have been cited better.
These examples are mostly City Council hearings on conditional use permits for businesses and schools that simply set conditions for hours of operation, parking etc. The January 2006 example is the hearing for Mulberry’s. I think the Zone E modification is the permit for Zion school. That’s a pretty flimsy record to justify a whole zone reclassification. Does City Council really believe these routine administrative permits allow for wholesale reuse of a zone, like adding multi/family housing to Zone B?
With such a low bar for reclassification, it will be easy for Council to add multi-family housing to any zone in Piedmont.