DAVIS v. Gene Mann et al., Interveners and Respondents.

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Court of Appeal, First District, Division 1, California.

Sarah E. DAVIS et al., Plaintiffs and Appellants, v. CITY OF BERKELEY et al., Defendants and Respondents; Gene Mann et al., Interveners and Respondents.


Decided: July 27, 1987

Tony J. Tanke, Susan Burnett Luten, San Francisco, for plaintiffs and appellants. Manuela Albuquerque, City Atty., Marjorie Gelb, Deputy City Atty., Berkeley, for defendants and respondents. Peter E. Sheehan, Katharine S. Miller, Legal Aid Society of Alameda County, Oakland, for intervenors and respondents. R. Frederic Fisher, Lillick McHose & Charles, San Francisco, for amicus curiae appellants. Jane Lang McGrew, Weissbrodt, Mirel, Swiss & McGrew, Washington, D.C., California Housing Finance Agency, Robert L. McWhirk, Gen. Counsel, Ana M. Montano, Sacramento, James K. Hahn, City Atty., Pedro Echeverria, Asst. City Atty., Julie P. Downey, Deputy Asst. Atty., Dov S. Lesel, Deputy City Atty., Los Angeles, for amicus curiae respondents.

This appeal by five residents of the City of Berkeley (hereafter Berkeley or the City) mounts a constitutional challenge to the City's proposed construction of 75 units of public housing on sites located within the City on the theory that the enabling voter-approved ballot proposals phrased in general language fail to comply with the requirements of article XXXIV, section 1 of the California Constitution.1  Appellants also contend that in any case the Berkeley ballot proposals adopted by the local electorate do not authorize a sufficient number of public housing units to allow development of the proposed 75 units.   This appeal is taken from the judgment denying appellants' mandamus petition seeking to compel further elections.   For the extensive reasons discussed, we conclude that the appeal is without merit, and we affirm the judgment.

Factual Background

In July 1984, the Berkeley Housing Authority, a public agency established under statute (Health & Saf.Code, § 34240 et seq.), and the City decided to pursue the development of 75 units of low income public housing in Berkeley.   The City determined that two ballot measures approved by the voters in 1977 and 1981 authorized construction of these units without necessity of other approval by referendum.   The only previous allocation by the City under the general approval of 500 units of public housing involved a 14–unit development in 1984 and a 62–unit project in 1983.   No other article XXXIV housing has been constructed in Berkeley since 1977.

In July 1984, the City applied to the United States Department of Housing and Urban Development (HUD) for funds to finance the project and submitted the required certification that sufficient article XXXIV approval existed for the project.

In December 1984, HUD reserved funds for the 75–unit project.   Additional financing was secured from other federal funding agencies, city funds, a private developer and a redevelopment tax increment—limited to redevelopment and low income housing uses.   Between March 1985 and March 1986, the City held numerous public meetings concerning the 75–unit project and its impact on City residents.

In April 1986, the City received final approval from HUD for the 75–unit project conditioned upon the commencement of construction by April 1987.

Procedural Background

On August 22, 1985, appellants through counsel formally requested the city attorney to advise the Berkeley Housing Authority to submit the 75–unit project for voter approval pursuant to article XXXIV.   Following denial of this request, appellants promptly filed a mandamus petition in the superior court seeking to compel voter approval and to halt all further development of the project pending the referendum election.   The named defendants included the City and City Council, Berkeley Housing Authority and the Berkeley Planning and Community Development Commission.

In February 1986, a complaint in intervention was filed by two individuals eligible to reside in the proposed project.2

On February 11, 1986, appellants filed a motion for summary judgment or adjudication of issues without substantial controversy, arguing that there was no article XXXIV authority for the 75–unit project or, alternatively, that any authority granted by the two previous ballot measures had been fully exhausted in constructing other projects.

In March 1986, the City and interveners also filed motions for summary relief arguing that article XXXIV does not require identification of specific projects in ballot propositions and that previously adopted local Measures A and D provided sufficient authorization for the proposed project.   On June 4, 1986, the court granted the motions of the City and interveners and denied appellants' motion.

On August 13, 1986, the superior court entered judgment denying the petition for writ of mandate.   This appeal ensued.3


 The need for an adequate supply of low income public housing is a matter of statewide concern.   Subdivision (a)(1) of section 65009 of the Government Code states:  “The Legislature finds and declares that there currently is a housing crisis in California and it is essential to reduce delays and restraints upon expeditiously completing housing projects.”   As we observed in Bruce v. City of Alameda (1985) 166 Cal.App.3d 18, 21, 212 Cal.Rptr. 304 (quoting from various legislative expressions of policy), “ ‘[T]here continues to exist throughout the state a seriously inadequate supply of safe and sanitary dwelling accommodations for persons and families of low income.   This condition is contrary to the public interest․’  (Health & Saf. Code, § 33250.)   And ‘[T]he early attainment of decent housing and a suitable living environment for every California family is a priority of the highest order’;  and that, ‘[t]he provision of housing affordable to low and moderate income households requires the cooperation of all levels of government.’  (Gov.Code, § 65580.)”

Notwithstanding the strong policy considerations favoring low income housing, appellants advance a series of arguments which, if valid, would severely restrict local government's ability to implement the expeditious construction of such housing.   In discussing the principal issue whether project specificity in local ballot proposals is mandated for article XXXIV housing, we undertake a comprehensive review of the constitutional provision and analogous statutes in light of relevant history and past interpretations.   We conclude that none of these sources indicate that the constitutional provision mandates the inclusion of specific details of a low income housing proposal in the enabling measure ultimately submitted for voter approval.


The Language of Article XXXIV

We begin our analysis in this case with an examination of the pertinent language of the amendment itself.

As earlier noted, voter approval is constitutionally prescribed for any “low rent housing project ․ developed, constructed, or acquired ․ by any state public body.”   The operative term “low rent housing project” is defined to mean any government financed or assisted development of residential dwellings or “living accommodations” for persons of low income.

The several participants herein advance various dictionary definitions of the word “project” in support of their respective arguments.4  While dictionary definitions will often prove useful in attempting to understand the meaning of ambiguous language, not infrequently the suggested definitions will support differing interpretations or constructions tending merely to confirm the very ambiguity.   As Justice Holmes once reminded, “[a] word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.”  (Towne v. Eisner (1918) 245 U.S. 418, 425, 38 S.Ct. 158, 159, 62 L.Ed.2d 372.)   The use of the generic term “project,” with its varying meanings, demonstrates the need for careful analysis to determine its intended purpose within the constitutional framework.

Amici supporting appellants argue that the words “such project” found in article XXXIV compel a conclusion that the local electorate must be afforded the opportunity to vote on the specific project at issue.   In so doing, however, they disregard the notable fact that the language “such project” (in the first paragraph) contextually relates to the immediately preceding phrase “low rent housing project,” which is subsequently defined as “any development” financed or assisted by state or federal government.   To suggest that a specific project is mandated by the language of the amendment by reading the subject phrase in isolated context is unreasonable and unconvincing.

In Blodget v. Housing Authority (1952) 111 Cal.App.2d 45, 50, 243 P.2d 897, the court relied on federal housing legislation to define the term “development” as used in article XXXIV as including “ ‘any or all undertakings necessary for planning, land acquisition, demolition, construction, or equipment, in connection with a low-rent housing project.’ ” 5  Blodget expressly determined that a “development” included the planning of buildings and that a “housing project” need not be a “tangible building or buildings on a definitely located site” for purposes of entering into a valid contract for financial assistance within the meaning of article XXXIV.  (Id., at p. 51, 243 P.2d 897.)

Amici also argue in support of appellants that Health and Safety Code section 34313, which contains language comparable to article XXXIV, has been applied to prohibit a city from approving a general public housing proposal, citing Housing Authority v. Shoecraft (1953) 116 Cal.App.2d 813, 254 P.2d 628, cert. den., sub. nom. Torres et al. v. Housing Authority of the City of Los Angeles et al. (1953) 346 U.S. 859, 74 S.Ct. 77, 98 L.Ed. 372.6  Indeed, the operative language of that statute is remarkably similar to article XXXIV.   The relevant portion states:  “[N]o low-rent housing ․ project shall be developed, constructed, or owned ․ until the governing body of the county or city in which it is proposed to develop, construct, or own the project, approves it by resolution.”   This language, added in 1945, obviously preexisted the 1950 constitutional amendment and thus bears some analytical relevance to the intended meaning of virtually identical language found in article XXXIV.

Contrary to the assertions of amici, section 34313 was interpreted by the Supreme Court as not requiring approval of specific construction details of a proposed low income housing project.   In Drake v. City of Los Angeles (1952) 38 Cal.2d 872, 243 P.2d 525 (cert. den., sub. nom. City of Los Angeles et al. v. Housing Authority of the City of Los Angeles (1952) 344 U.S. 836, 73 S.Ct. 46, 97 L.Ed. 651) the court cogently explained as follows:  “The approval of the city council gave the housing authority the signal to proceed to formulate plans for the proposed 10,000 unit project,” and “[u]ntil the city council authorized the project by its approval, there was no project as to which any directed action with respect to plans, surveys, and the like could be taken.”  (Id., at p. 875, 243 P.2d 525.) 7  The court specified that the housing authority could take no steps to formulate plans for the project at issue until the city approved its application for preliminary federal loans.  (Id., at p. 876, 243 P.2d 525.)  “Sites for the project were not acquired nor required to have been selected prior to the city's approval.”  (Ibid.)

Nor is Housing Authority v. Shoecraft, supra, 116 Cal.App.2d 813, 254 P.2d 628, in conflict with Drake.   The language in Shoecraft upon which amici rely as authority for a requirement of specific site locations pertains only to the city's authorization of a housing authority request to condemn specified sites for the project.   Drake, Shoecraft, and Housing Authority v. City of L.A. (1952) 38 Cal.2d 853, 243 P.2d 515, all concerned the same proposed project;  and all stand for the proposition that a city not only may, but must, approve a project prior to any planning activity by the housing authority.

Appellants argue that despite the identical statutory language, Drake 's relevance is limited because the crucial language occurs in a wholly different context.   The statute under consideration in Drake was intended to provide the means for utilizing available federal funds to construct low rent housing.  (See Housing Authority v. City of L.A., supra, 38 Cal.2d 853, 861, 243 P.2d 515;  and Drake v. City of Los Angeles, supra, 38 Cal.2d 872, 876, 243 P.2d 525.)   The purpose of article XXXIV is to allow voter approval or rejection of a low rent housing proposal.   This difference in purposes, argue appellants, requires us to disregard Drake as an analytical aid to the meaning of the constitutional language.   Yet, the objectives of the two provisions are similar:  both the statute and the constitutional provision serve as checks on the authority of a public agency to proceed with the planning and development of public housing.   Although the reasoning in Drake is not dispositive herein, its analysis of nearly identical language possesses probative utility.

In conclusion, having considered the several arguments advanced regarding the specific language of article XXXIV, we are satisfied that the governing constitutional provision contains no requirement of specificity for a low rent housing project proposal.

Historical Context of Article XXXIV

In California Housing Finance Agency v. Patitucci (1978) 22 Cal.3d 171, 148 Cal.Rptr. 875, 583 P.2d 729, our Supreme Court noted that the “varying interpretations” of article XXXIV require resort to many sources, including examination of the “historical context of the amendment, and the ballot arguments favoring the measure,” to evidence its purpose.  (Id., at p. 177, 148 Cal.Rptr. 875, 583 P.2d 729.)   Obedient to that instruction, the several participants herein have submitted and analyzed voluminous historical information in support of their respective positions.*  Appellants, and the entities aligned in interest with them, conclude that the history of the amendment impels a conclusion that article XXXIV requires, at a minimum, that voters be furnished with factual details permitting them to evaluate the financial burden of the specific development proposed, the financial effect of a reduced tax base by reason of loss of property taxes on low rent housing, the environmental and aesthetic impact of low rent housing and the need for housing in comparison to the actual cost of the project.   The City and similarly interested entities make the counter-argument that the available historical materials lead to a contrary conclusion:  that article XXXIV requires only general voter approval (a “yes” or “no” vote) and that authorization may be necessary for a specified number of units of low cost housing but not for a specific project.

The historical events surrounding the adoption of article XXXIV lend support to the City's contention that a specific project need not be identified in a ballot proposition.   In 1950, the Eureka City Council approved the application of its Housing Authority for a preliminary loan to cover the initial costs of surveying and planning 500 units of low rent housing.  (Housing Authority v. Superior Court (1950) 35 Cal.2d 550, 553–554, 219 P.2d 457.)   A referendum petition on the subject of the city's approval was presented to the city clerk who refused to file it.   Ultimately, the Supreme Court held that the city's action approving the application, being administrative rather than legislative in nature, was not subject to a referendum election.  (Id., at pp. 557–559, 219 P.2d 457.)   In apparent reaction to that decision, article XXXIV was adopted later that year.  (James v. Valtierra (1971) 402 U.S. 137, 138–139, 91 S.Ct. 1331, 1332, 28 L.Ed.2d 678.)   If, as suggested in James v. Valtierra, the Housing Authority decision led to adoption of the amendment, the pivotal issue concerned approval of a preliminary loan application for funds to cover the costs of planning, which contained no details as to project identification.  (Housing Authority v. Superior Court, supra, 35 Cal.2d 550, 553–554, 219 P.2d 457.)   Thus, if Housing Authority describes the problem initially intended to be remedied by article XXXIV, we can find no suggestion in that case that specific project details were involved.

In the ballot arguments supporting adoption of article XXXIV, it was stated that a vote in favor of the amendment was a “vote for the future right to say ‘yes' or ‘no’ when the community considers a public housing project.”  (Ballot Pamp., Proposed Amends. to Cal. Const. with arguments to voters, Gen.Elec. (Nov. 7, 1950) p. 12.)   These sources indicate a requirement only that general authority to pursue a public housing project must be sought from the voters.

In its own examination of the historical context of the amendment, the Supreme Court determined that the “proponents of article XXXIV were moved by two primary concerns, the direct drain on a community's finances and the effect on its aesthetic environment, represented by the tax exempt publicly owned low income housing of that day.”  (California Housing Finance Agency v. Patitucci, supra, 22 Cal.3d at p. 178, 148 Cal.Rptr. 875, 583 P.2d 729.)   This conclusion was buttressed by ballot arguments of the successful opponents to a legislative referendum seeking to repeal article XXXIV stating that “ ‘[i]t is important to remember that the constitutional provision which Proposition 15 seeks to repeal applies only to conventional public housing which is publicly owned and tax exempt.   It does not apply to other low income housing programs for which the housing remains on the tax rolls and, therefore, contributes its fair share to the financial obligations of the community.’ ”  (Ibid.) 8

Appellants point to a legislative analysis of the 1982 repeal attempt which stated, in part, that the measure would remove the requirement that “every low-rent housing project be approved by a vote of the people.”  (See the Ballot Pamp. analysis of Prop. 4 by the Legislative Analyst as presented to the voters for the Gen.Elec. of 1982, emphasis added.)   But reliance on the emphasized adjective provides little indication that each specific project must be submitted for voter approval;  indeed, the language could just as easily support a conclusion that only a general authorization was required to proceed.

Nor can appellants take comfort in a 1968 study by the California Constitution Revision Commission which mentioned, inter alia, that supporters of the amendment argued that “public housing proposals should be submitted to ․ the voters ․ to ascertain whether a proposed project was necessary, whether its location was appropriate, and whether proper financing had been undertaken.”  (Cal. Const.Rev. Com., Article XXXIV Public Housing Background Study 1 (June 1968) p. 10.)   None of the ballot arguments submitted in this case made such a claim.   Although the historical background of a constitutional amendment is relevant in ascertaining the intent of the voters, we cannot accept as fact a statement contained in the report of a government commission.  (See, e.g., Beckley v. Reclamation Board (1962) 205 Cal.App.2d 734, 741–742, 23 Cal.Rptr. 428 [court may judicially notice fact of state commission report, but not truth of statements therein].)   Furthermore, cities in general are required by funding agencies to certify that article XXXIV authorization has already been obtained prior to funding of low income housing loans.

 A fair assessment of the historical background of article XXXIV reveals that its intended purpose was to give the electorate the right simply to approve or disapprove a proposed undertaking of a public housing development motivated by concerns about the financial and aesthetic impact of public housing in general.

Case Law and Analogous Statutes

Not surprisingly, appellants also rely on language in California Housing Finance Agency v. Elliott (1976) 17 Cal.3d 575, 131 Cal.Rptr. 361, 551 P.2d 1193, and California Housing Finance Agency v. Patitucci, supra, 22 Cal.3d 171, 148 Cal.Rptr. 875, 583 P.2d 729, that particular design and construction “amenities” such as augmented handicapped accessibility, draperies, floor coverings, landscaping and patios are factors that must be submitted to a vote.   However, Elliott merely stated that voters may consider stated differences between a proposed project and a conventional public housing project when such details are submitted to them.  (Id., 17 Cal.3d at pp. 592–593, 131 Cal.Rptr. 361, 551 P.2d 1193.)   But Elliott contains no hint that the constitutional provision required submission of those details.   As Patitucci noted, it was the effect of tax-exempt public housing on tax rolls as well as the aesthetic impact of conventional low income housing which provided the motivation for adoption of article XXXIV.   Of greater importance, the Patitucci court discussed only general descriptions of public housing in approving the Legislature's exemption of any privately owned, nontax-exempt mixed income development where less than a majority of residents were low income people because it satisfied the major concerns underlying the adoption of article XXXIV.  (Patitucci, supra, 22 Cal.3d 171, 178–179, 148 Cal.Rptr. 875, 583 P.2d 729.)   Equally important, specific details of a project were not discussed.   Thus, Patitucci does not stand for the proposition that voter approval of specific details of an existing low income project is essential.9

Finally, we believe that the analogy to bond elections lends added weight to City's argument that general ballot authorization is legally proper.   The arguments contained in the voters' pamphlet concerning the 1950 proposition stated that “the financing of public housing projects is an adaptation of the principle of the issuance of revenue bonds.   Under California law, revenue bonds, which bind a community to many years of debt, cannot be issued without local approval given by ballot.   Public housing and its long years of hidden debt should also be submitted to the voters to give them the right to decide whether the need for public housing is worth the cost.”  (Ballot Pamp., Proposed Amends. to Cal. Const. with arguments to voters, Gen. Elec. (Nov. 7, 1950).)   We do not consider such language as merely a citation of precedent for voter approval of costs as amici suggest.   To the contrary, we find the analogy to bond issuances, coupled with the express concern for the financial impact of public housing, forcefully appealing.

“Bond propositions may be validly submitted to the voters in broad and general terms.  [Citations.]”  (East Bay Mun. Util. Dist. v. Sindelar (1971) 16 Cal.App.3d 910, 919, 94 Cal.Rptr. 431.)   The purpose for the debt may be stated in general terms, so long as there is sufficient certainty to inform the voters.  (Ibid.)  Details of particular projects are not required.   (Ibid.)  Although the amount of the bond must be stated in a ballot proposition, we cannot agree that this express statutory requirement somehow mandates a construction of article XXXIV to provide a similar restriction in context.  (See, e.g., Pub.Util.Code, § 13207.)  “Where possible, the Constitution must be given a liberal, practical common-sense construction to meet changed conditions and the growing needs of the people.  [Citations.]”  (Housing Authority v. Peden (1963) 212 Cal.App.2d 276, 280, 28 Cal.Rptr. 11.)   Thus, the bond analogy is well taken in support of City's position that ballot authorizations may be simply stated in general terms.   Nor, as is evident, do we believe that the analogy imposes a mandatory requirement that specific cost figures be supplied, particularly in light of the absence of legislative direction.10

Improper Delegation of Power By Electorate

Amici supporting appellants also contend that if the voters approve a “blanket” authorization of construction of low cost housing, it would amount to an unlawful delegation of power by the electorate to the City.   Without citation of supporting authority, amici boldly proclaim that the resulting “delegation” of power constitutes a violation of the constitutional separation of powers.   The purported reliance on State Board of Education v. Levit (1959) 52 Cal.2d 441, 343 P.2d 8, involving the Legislature's attempt to interfere with the functions of a state administrative board whose duties were expressly delegated under the Constitution, is misconceived.   This novel argument appears to be nothing more than a restatement of the claim that the nature of the power possessed by the voters as defined solely by the terms of article XXXIV includes the power to authorize specific project details.

To the extent that amici contend that a general approval by the voters is insufficient under the terms of article XXXIV, that argument is addressed elsewhere in this opinion.   Clearly, no issue of separation of powers is presented.

Administrative Interpretation of Article XXXIV

The City submitted a number of sample referenda from other cities which are phrased in general terms,11 together with declarations from officials of the California Department of Housing and Community Development, HUD, and the California Housing and Finance Agency (CHFA),12 expressing their uniform acceptance and endorsement of general voter authorizations such as Measures A and D.

Amici supporting appellants argue that these agencies are in violation of the law, thus rendering their interpretations irrelevant.   Appellants renew their objection below, that the subject agencies have no duty to enforce article XXXIV but rather seek to encourage public housing;  consequently, they argue, the declarations of these officials are inadmissible.

It is undisputed that an important purpose of the named agencies is the encouragement of construction of public housing.   CHFA is charged with the implementation of the Home Finance Act (former Health & Saf.Code, § 41000 et seq.;   now § 50000 et seq.), which has been judicially construed to incorporate article XXXIV.  (See California Housing Finance Agency v. Elliott, supra, 17 Cal.3d 575, 579, 131 Cal.Rptr. 361, 551 P.2d 1193.)   Elliott explains that CHFA's role of “extensive supervision” under the Zenovich-Moscone-Chacon Housing and Home Finance Act (former Health & Saf.Code, § 41000 et seq.) provides “a means to insure that the overall public policies and purposes of the program will be achieved.”  (Id., at p. 590, 131 Cal.Rptr. 361, 551 P.2d 1193.)   Although CHFA appears as amicus on appeal, an advisory pamphlet containing the broad interpretation of the requirements of article XXXIV adhered to by all the challenged agencies existed well before commencement of the underlying litigation.  (Cf. Carmona v. Division of Industrial Safety (1975) 13 Cal.3d 303, 311–312, fn. 8, 118 Cal.Rptr. 473, 530 P.2d 161 [declaration of party's employee entitled to no weight];  Jones v. Tracy School Dist. (1980) 27 Cal.3d 99, 106–107, 165 Cal.Rptr. 100, 611 P.2d 441 [fact that internal memo proposed after agency became amicus diminishes probative force].)

The authorities cited by appellants do not hold that such evidence is inadmissible, but only that it may be accorded little or no weight when the declarant either participates in the litigation or has some other interest which detracts from the impartiality of the evidence.  (Carmona v. Division of Industrial Safety, supra, 13 Cal.3d at pp. 311–312, fn. 8, 118 Cal.Rptr. 473, 530 P.2d 161.)

Although we are mindful of appellants' claim of illegality, we cannot conclude that the established practices of these governmental agencies concerned with implementing state policy favoring public housing are completely irrelevant as an aid in interpreting the ambiguous constitutional language at issue.

 But in the final analysis, the interpretation of the constitutional provision here remains a question of law solely within the province of the court.  (See, Carmona, supra, at p. 310, 118 Cal.Rptr. 473, 530 P.2d 161.)   The history of article XXXIV and the ballot information previously discussed provide ample bases to uphold and affirm the trial court's construction without resort to government agency practices.   Nor will we presume that the trial court gave improper weight to the challenged declarations.  (Cf. Mission Pak Co. v. State Bd. of Equalization (1972) 23 Cal.App.3d 120, 126, 100 Cal.Rptr. 69 [party's long-standing failure to challenge agency's construction is relevant to issue of reasonableness of such interpretation];  see also, Steelgard, Inc. v. Jannsen (1985) 171 Cal.App.3d 79, 88, 217 Cal.Rptr. 152 [agency interpretation long acquiesced in by all interested parties is relevant to construction of ambiguous language].)

In summary, our review of the language of article XXXIV, taken in historical context, together with relevant judicial and administrative interpretations, leads inevitably to the conclusion that there is no constitutional impediment to voter approval of a public low rent housing project by means of open-ended general authorizations as shown herein.


We next consider the issue whether the specific ballot measures utilized by the City in this case authorized a sufficient number of units to allow the development of the 75–unit project.   Appellants claim that because Measures A and D referred to many types of low income housing, every type of low or moderate income housing built since 1977 must be counted toward the 500 units authorized.   Appellants also claim that the voters were unaware they were voting for low income housing and were defrauded by the City.   We will address these contentions in some detail below in reaching a conclusion that Measures A and D pertained exclusively to article XXXIV housing, that the voters were adequately informed, and that a sufficient number of authorized units remain available to permit construction.

Units Authorized by Measures A and D

Appellants argue that even if the general language of Measures A and D is compatible with article XXXIV, the description of other types of housing requires that they be included in determining the number of authorized units which remain unallocated.13  The claim rests largely on the declaration of a former Berkeley planning commissioner that 466 units of “publicly or privately sponsored housing” have been developed in Berkeley for low or moderate income persons, “through financing provided by local, state, federal or private resources.”   But the declaration does not claim that the 466 units are all article XXXIV housing.   In contrast, a declaration of the Berkeley Housing Authority housing development specialist, supported by the City's certification to HUD of article XXXIV authority, stated that only 76 units of article XXXIV housing have been constructed, developed, or acquired since 1977.   And the fact of such minimal development of article XXXIV housing remains undisputed.

Moreover, the former commissioner's declaration is not confined to the public housing categories defined in Measures A and D but also includes privately sponsored housing, a housing category undefined in either measure.   Such patent defect creates considerable doubt as to the credibility of the declarant's assertion regarding the number of units actually built.

Assuming, arguendo, that more that 76 units of non-article XXXIV public housing have been built since 1977, we address the merits of appellants' argument.   As previously discussed, both measures are general authorizations, and very little is specifically described.14

 In interpreting a local initiative or ordinance, traditional rules of statutory construction apply.  (C–Y Development Co. v. City of Redlands (1982) 137 Cal.App.3d 926, 929, 187 Cal.Rptr. 370.)   Thus, a court looks first to the words of the measure, and if the language is ambiguous, to historical documents to ascertain the intent of the electorate.  (California Housing Finance Agency v. Patitucci, supra, 22 Cal.3d 171, 177, 148 Cal.Rptr. 875, 583 P.2d 729.)   On occasion, literal language may be disregarded in order to avoid a result that thwarts the apparent intent of the voters.  (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 245, 149 Cal.Rptr. 239, 583 P.2d 1281.)

 In this case, the language of the measures literally includes cooperatively owned housing, which, appellants argue, does not come within the description of article XXXIV housing.  (See Health & Saf.Code, § 37001, subd. (c);  51 Ops.Cal.Atty.Gen. 42, 45 (1968);  59 Ops.Cal.Atty.Gen. 211, 214 (1976).)   However, the record before us discloses that CHFA has consistently required article XXXIV authorization for certain cooperatively owned projects out of an abundance of caution in the event the legality of the projects were ever challenged.

Appellants next question the designations of moderate income housing and housing financed through private sources described in Measures A and D as pertaining to non-article XXXIV housing.   In 1977, when Measure D was placed on the ballot, the Supreme Court had held that certain mixed low and moderate income projects were subject to article XXXIV.  (California Housing Finance Agency v. Elliott, supra, 17 Cal.3d 575, 131 Cal.Rptr. 361, 551 P.2d 1193.)   The following year the court decided in Patitucci that a mixed project with less than half of the units designated for moderate income persons could still be subject to article XXXIV approval.  (California Housing Finance Agency v. Patitucci, supra, 22 Cal.3d 171, 148 Cal.Rptr. 875, 583 P.2d 729.)   Thus, the inclusion of “moderate income” projects in the two measures did not necessarily refer to non-article XXXIV housing.15

Amici supporting appellants claim that since the measures contain no definition of the term “public housing,” all types of public housing listed in the measures must be counted in determining the remaining authorized units available.

As earlier noted, article XXXIV itself is expressly entitled “Public Housing Project Law.”   Its scope is defined to apply to low rent housing projects financed or assisted in any part by the federal or state government.   Furthermore, Measures A and D first list specific types of public housing which may be authorized and then provide general authorization for any other public housing not specifically listed, subject to article XXXIV requirements.   Both the city attorney's analysis of Measure D and the ballot argument expressly explain that the ordinance is a response to the constitutional requirement of voter approval.  (Ballot Pamp., with arguments to voters, Gen.Municipal Elec., City of Berkeley (April 19, 1977) p. 44.)   Likewise, the city attorney's analysis of Measure A states that under certain conditions “Article 34 of the California Constiution [sic ] requires the approval of the electorate ․ prior to the development of residential housing for low and moderate income persons․”  (Ballot Pamp., with arguments to voters, Gen.Municipal Elec., City of Berkeley (April 21, 1981).)

In light of the explicit language of the measures and related analyses and arguments submitted to the voters, we find the argument of appellants and amici untenable.   Measures A and D sought voter approval only for public housing projects as contemplated by the Constitution.   Nothing in the history or language of the measures indicates that the electorate intended to approve anything other than article XXXIV housing.16

We conclude that Measures A and D are valid voter authorizations exclusively applicable to article XXXIV public housing, and that a sufficient number of unallotted units exists authorizing the proposed 75–unit project.

Voter Knowledge

 Relying on Housing Authority v. Peden, supra, 212 Cal.App.2d 276, 28 Cal.Rptr. 11, appellants argue that the Berkeley voters had insufficient notice of the meaning of Measures A and D.   Specifically, they assert that the pre-election publicity provided little information concerning the location and aesthetic impact of the 75–unit project, the degree of any opposition, and the fact that the measures did not employ the constitutional terms “low rent housing project” to alert the voters that such form of public housing was being submitted for approval.   We disagree.

Peden involved a challenge to a county-wide low income housing ballot measure based, in part, on a claim that the election notice did not specifically advise voters that part of the housing project would be located within the City of Hanford.  (Id, at pp. 280–281, 28 Cal.Rptr. 11.)   The Peden court determined that the election would not be invalidated unless the notice contained an omission which deprived a “ ‘sufficient number of the qualified electors ․ of the opportunity of exercising their franchise so as to change the result of the election.’ ”  (Id., at p. 281, 28 Cal.Rptr. 11.)   The court looked to contemporaneous newspaper articles, public meetings, the activities of opposition groups and other publicity regarding the election to determine that the voters had sufficient notice of the content of the ballot proposition.  (Id., at pp. 282–283, 28 Cal.Rptr. 11.)   Notably, Peden did not hold that detailed publicity was constitutionally required in approving a substantially similar general measure.17  Although the court mentioned publicity which disclosed “details” of the proposed project, aside from the location and number of units and the number set aside for eligible elderly citizens, the court offered no explanation as to the nature of the details disclosed.  (Id., at pp. 281–282, 28 Cal.Rptr. 11.)

Here, the City submitted voters' pamphlets and newspaper articles regarding the measures which specifically informed the voters that they were voting for low rent housing, that Berkeley voters voted to repeal article XXXIV in 1974, and that the measures did not constitute approval of any specific construction.  (See Ballot Pamp., with arguments to voters, Gen.Municipal Elec., City of Berkeley (April 19, 1977);  Ballot Pamp., with arguments to voters, Gen.Municipal Elec., City of Berkeley (April 21, 1981);  Voters Service Bulletin, League of Women Voters of Berkeley, Measure D.)   In addition, an independent voter pamphlet informed the voters that a public subsidy was necessary to develop low and moderate income housing, and that “[i]n the process of planning for a subsidized residential development, before funding sources are determined, it is not possible to know whether Article XXXIV constraints will apply․”  (See League of Women Voters Guide, Berkeley Ballot Measures, Measure A (1981).)

Thus, as in Peden, the ballot arguments and accompanying publicity adequately notified the voters of the nature of the issues presented.

We are satisfied that the voters were not deprived of the opportunity to exercise their franchise knowledgeably.

Voter Fraud

 Appellants point to a number of circumstances which, they insist, perpetrated a fraud on the voter.   Most of the factors noted essentially reflect appellants' previously discussed argument that more specific construction and financing details should have been supplied to the voters.18

The additional factors claimed as misleading suggest that city officials knew of proposed article XXXIV projects and actively concealed such knowledge from the voters.   The apparent source of that complaint consists of the city manager's internal memorandum which mentioned Savo Island and another article XXXIV development as potential projects recommended for general ballot measures.   Far from being deceptive, the memo reflects concern in dealing with the pressing need for low rent housing with a minimum of administrative waste caused by multiple elections.   We know of no authority that requires city officials to include every possible future project in an article XXXIV ballot proposition.   The voters were clearly informed in the ballot pamphlets that the measures did not authorize any specific project.   The failure to list potential proposed projects in the ballot materials was neither deceitful nor misleading.

Finally, appellants argue that the inclusion of different types of public housing in the ballot propositions was fraudulent because the City failed to count every public housing project against the authorized total of 500 units.   To the extent that this claim differs from the earlier argument that no authorized units remain unallocated, it is without merit.   Appellants' citation of Hass v. City Council (1956) 139 Cal.App.2d 73, 293 P.2d 61 is inapposite.  Hass stands for the proposition that where a ballot measure states that approval by three-fourths of the voters is required, it will not be considered adopted by a smaller vote even if only a majority vote is legally required.   The pronouncement is merely illustrative of the general rule that propositions submitted to the voters may be stated either in broad or narrow terms, but that the language used limits the action that may be taken thereunder.  (Mills v. S.F. Bay Area Rapid Transit Dist. (1968) 261 Cal.App.2d 666, 668, 68 Cal.Rptr. 317;  see also, 59 Ops.Cal. Atty.Gen. 211 (1976) [ballot measure which fails to specify public agency authorized to construct public housing does not limit construction to a particular agency].)

Our determination that Measures A and D were intended by the electorate to apply only to authorized article XXXIV housing is dispositive of appellants' claim of voter fraud due to the listing of several types of public housing in the ballot measures.


The Legislature has determined that thousands of individuals and families in the state are homeless and that the creation of new low income housing is desperately needed.  (Gov.Code, § 65008;  Stats.1984, ch. 1691, No. 8 Deering's Adv.Legis.Service, p. 853.)   For the past 37 years, numerous state and federal agencies, the state Attorney General, many California cities and counties and housing organizations have consistently interpreted the requirements of article XXXIV as authorizing the electorate to simply vote its general approval or disapproval (“yes” or “no”) of publicly assisted low income housing in their city or county.   The strong policy considerations supporting the urgent need for such housing, the historical context of the constitutional provision itself, and the terms of the specific ballot measures approved by the voters of Berkeley, contribute persuasively to our resulting determination that California Constitution article XXXIV requires no more than general voter approval of public housing, and that enacted Measures A and D validly authorize City's contemplated 75–unit project.19

The judgment denying the petition for writ of mandate is affirmed.

I concur, but with considerable reluctance.   Court of Appeal precedent in interpreting article XXXIV and California Supreme Court interpretation 1 of somewhat similar language in Health and Safety Code section 34313 provide abundant support for affirming.   However, by doing so, we are following a path almost certainly not intended or expected by whoever drafted article XXXIV or by the voters who enacted it.

In the plainest of plain language, article XXXIV applies to any “low rent housing project,” requires voter approval of “such project,” and defines “project” by describing “any development.”   All such references are in the singular, not plural.

The words “project” and “development” are distorted and rendered meaningless when construed to mean, as in the present opinion, creation of a “bank” of 500 authorized units which can be built in units of 14, 62, 61, etc., at any time in the future, at any number of places, and with any number and variety of consequences to the neighborhoods of the city.   Its attorney at oral argument, indeed, postulated that the city could stretch out implementation of its authorization for 50 or 100 (or more?) years.

Certainly, article XXXIV does not require that detailed specifications of any particular project be printed on the ballot. But, neither should ballot propositions for 200 and 300 units 2 be deemed a blank check for 500 units of any nature, to be built anytime, any place.

Certainly, article XXXIV was intended to provide the voters with a meaningful role in deciding a sometimes-important local issue.   It is apparent now that article XXXIV should either be repealed as deadwood or amended so it works.   Or, the courts should rethink their virtual repeal of the provision.


1.   California Constitution, Article XXXIV, entitled the “Public Housing Project Law,” was adopted at the November 1950 general election.   Section 1 provides in relevant part:  “No low rent housing project shall hereafter be developed, constructed, or acquired in any manner by any state public body until a majority of the qualified electors of the city, town or county, as the case may be, in which it is proposed to develop, construct, or acquire the same, voting upon such issue, approve such project by voting in favor thereof at an election to be held for that purpose, or at any general or special election.  [¶]  For the purposes of this article the term ‘low rent housing project’ shall mean any development composed of urban or rural dwellings, apartments or other living accommodations for persons of low income, financed in whole or in part by the Federal Government or a state public body or to which the Federal Government or a state public body extends assistance by supplying all or part of the labor, by guaranteeing the payment of liens, or otherwise.”

2.   In addition to the briefs of the parties, we have accepted and reviewed amici curiae briefs on behalf of the following entities:  the National Association of Housing and Redevelopment Officials, the Pacific Southwest Regional Council of the National Association of Housing and Redevelopment Officials, the Housing and Development Law Institute, the Housing Authorities of the County of Santa Cruz, the City and County of Fresno, the County of Tulare, the City of Las Vegas, Nevada, the City of Rochester, New York, and the County of Davis, Utah, the California Housing Finance Agency, the cities of Los Angeles, Palm Springs, Villa Park and San Francisco, all of which support the City, and the Franklin Community Organization and Northwest Berkeley Neighborhood Association, who support appellants.   Contrary to appellants' assertion, there is no precondition that amicus curiae meet the requirements of standing or for intervention.  (Cal.Rules of Court, rule 14(b);  9 Witkin, Cal.Procedure (3d ed. 1985) Appeal, § 497, pp. 485–486.)

3.   Following the filing of a notice of appeal, appellants sought extraordinary relief in this court which was summarily denied (AO36029).  Appellants' subsequent petition for a writ of supersedeas was also denied (AO37987).   However, on January 6, 1987, we granted appellants' motion requesting preference for hearing.

4.   A standard reference provides no less than half a dozen (plus subsets) definitions of the noun form.  (See Webster's Third New Internat. Dict. (1965) p. 1813.)

5.   Blodget, of course, was concerned with the language in article XXXIV which exempted existing projects.   Although Blodget does not expressly endorse the general voter authorization at issue in this case, it does indicate that specifics such as site location are not required by article XXXIV.

6.   Appellants argue that Health and Safety Code section 37000 indicates an intent that specific project approval is required because it references the voters' interest in approving “architecture, design, and locational standards as well as the level of amenities provided.”   In fact, section 37000 lists those factors as ways in which conventional public housing differs from privately owned housing developments.   Section 37001 contains the preface that new forms of public housing are not subject to article XXXIV.   However, section 37000 does not indicate that voters must be given specific project details, but speaks only in generalized terms regarding the nature of public housing.

7.   Appellants make the circular argument that Drake supports their position because it states that there is no project prior to initial city approval.   If there is no project, the argument continues, there was nothing for Berkeley voters to approve in 1977 or 1981.   This argument exposes its own circularity:  if no project exists prior to the city's approval, it defies comprehension how the city council in Drake could ever approve a project$  The essence of the approval is that the project be in a preplanning stage prior to official sanction.   By its “no project” comment, the Drake court clearly meant there was no officially sanctioned project as to which any planning could proceed.   This does not mean that no approval can occur when the “project” is a generalized proposition to build a specified number of low income housing units.

FOOTNOTE.   Interveners' brief was particularly helpful to the court in tracking the relevant history.

8.   The court ultimately upheld the Legislature's exclusion from article XXXIV requirements of privately owned, nontax-exempt developments in which less than half of the units were intended for low income tenants.  (California Housing Finance Agency v. Patitucci, supra, 22 Cal.3d 171, 178, 148 Cal.Rptr. 875, 583 P.2d 729.)

9.   Of course, voters dissatisfied with the general nature of a ballot proposal may cast a negative vote for that very reason, thus compelling a city to provide more detail.  (See, e.g., Ballot Pamp. City and County Propositions, City and County of San Francisco, with arguments to voters, Gen. Elec. (Nov. 3, 1964) p. 29, and Sample Ballot, City of Albany, with arguments to voters, Gen. Municipal Elec. (April 8, 1980), arguing for a no vote on public housing because sufficient details as to location, aesthetics, and cost were not furnished.)

10.   We reject amici's suggestion that the California Environmental Quality Act of 1970 (CEQA) (Pub.Res.Code, § 21000 et seq.) is an apt illustration of the required approval of specific project details which should guide our interpretation of the Constitution's requirements.   The definitions governing CEQA review of a “project” involve federal regulations.   The concerns addressed by CEQA are different in nature from the issue involved here.   In addition, we fail to see how the 1970 CEQA legislation could have any relevance to the voters' intentions some 20 years earlier.

11.   In addition, the City of Los Angeles in its amicus brief filed on behalf of Berkeley states that in 1973 its voters approved 500 units of low income housing in very general terms;  that 500 more were approved in similar terms in 1977, and that 15,000 units of low rent housing were approved in 1980, using only a general statement of the total number of units, the number of units per council district, the number of non-elderly units per site, and a height restriction.

12.   The amicus brief submitted by CHFA on behalf of Berkeley states that its statutory function is to provide below market-rate mortgage capital through the sale of tax-exempt bonds with the proceeds utilized to provide low and moderate income rental housing.   CHFA declares that as of June 1986, it is the permanent lender on 9,775 multi-family article XXXIV rental units, amounting to $407,444,000 in financing.

13.   The text of Measures A and D is essentially identical.   Measure D reads in relevant part:“Section 2. SPECIFIC AUTHORIZATION FOR PUBLIC HOUSING“a. Any public entity, as defined herein, shall be empowered to develop, construct, or acquire public housing for the purpose of renting such housing to low income or moderate income persons in the City of Berkeley, provided such development, construction or acquisition is financed through local, state, federal or private sources, or any combination thereof.“b. Any public entity, as defined herein, shall be empowered to assist in the development, construction or acquisition of cooperatively owned housing for the purpose of cooperative ownership by low income or moderate income persons in the City of Berkeley, provided such assistance is in the form of direct or indirect financial support from local government sources.“c. Any public entity or any private sponsor acting in conjunction with a public entity shall otherwise be empowered to develop, construct or acquire public housing for low income or moderate income persons in the City of Berkeley, whether such housing is for the purpose of rental or cooperative ownership or otherwise, provided such housing is financed in whole or in part by local, state, federal or private sources.“d. In no event shall any development, construction or acquisition of public housing, as defined and authorized herein, exceed 200 units.“Section 3. GENERAL AUTHORIZATION FOR PUBLIC HOUSING.“Any public housing development not specifically authorized by this ordinance, but otherwise required to be approved by the electorate pursuant to Article 34 of the California Constitution, is hereby approved, provided such public housing development does not exceed 200 units.“Section 4. NECESSITY FOR OTHER APPROVALS.“Any public housing development, whether specifically authorized in Section 2 or generally authorized in Section 3, shall not be exempt from any other local, state or federal approval which may be required, notwithstanding the source of financing.”

14.   Each measure contains a section labeled “Specific Authorization for Public Housing” and a section entitled “General Authorization for Public Housing”.   The former section contains subdivisions which reference rental of low or moderate income housing by public entities, cooperatively owned housing developed by public entities, and public entities or private sponsors acting in conjunction with public entities which develop rental or cooperatively owned low or moderate income housing.   The general section authorizes any public housing which requires article XXXIV approval and is not otherwise specifically authorized.   The measures limit “development, construction or acquisition of public housing, as defined and authorized herein,” to the specified number of units authorized in each measure.

15.   The text of the measures discusses “private sponsors” only in the context of “acting in conjunction with a public entity,” which could subject such a project to article XXXIV compliance.

16.   The single instance of an express reference in the ballot argument to non-article XXXIV housing related to the proposed development of the Savo Island project, described as 55 cooperatively owned units to be financed by federal and local funds.   It appears that after passage of Measure D, funding was received from another source and the project was no longer subject to article XXXIV.   Since only 76 article XXXIV units have been developed to date, the inclusion of Savo Island as an authorized project could have no effect herein.   The significance of the Savo Island matter is that it points up the problems caused by the inclusion of specific project details in the authorizing ballot measures whenever funding sources, site locations, or project details are changed.

17.   The ballot measure in Peden read:  “ ‘Shall the Housing Authority of the County of Kings, California, develop, construct and acquire within the County of Kings, with Federal financial assistance, a low-rent housing project or projects of not to exceed two hundred and seventy five (275) dwelling units for living accommodations for persons of low income including eligible elderly persons of low income?’ ”  (Housing Authority v. Peden, supra, 212 Cal.App.2d 276, 281, 28 Cal.Rptr. 11.)

18.   An additional factor related to the ballot measure statement that there was no financial impact at that time.   The statement of course was obviously correct;  and if voters were concerned about future potential costs, it is equally apparent they were free to register their disapproval.Another factor focuses on the alleged disregard of environmental and aesthetic concerns.   But both measures specifically stated that the authorized developments would not be exempt from “any other [required] local, state or federal approval,” e.g., local planning and zoning regulations including environmental review requirements.   Moreover, the record discloses that the City held public hearings on site location, design concepts and alternatives, site plans, costs, use permits and variances, and conducted an environmental study in compliance with CEQA.   The negative declaration which issued was approved and considered on appeal to the city council.   Clearly, environmental and aesthetic issues were fully reviewed during the process of planning the development.

19.   Since we have concluded that no additional elections are necessary, appellants' request in its reply brief for judicial notice of pertinent documents is denied as being moot.

1.   Drake v. City of Los Angeles (1952) 38 Cal.2d 872, 243 P.2d 525, cert. den., sub. nom. City of Los Angeles et al. v. Housing Authority of the City of Los Angeles (1952) 344 U.S. 836, 73 S.Ct. 46, 97 L.Ed. 651.

2.   A ballot proposition passed in 1977 authorized 200 units, and one passed in 1981 authorized 300 units.

RACANELLI, Presiding Justice.

NEWSOM, J., concurs.