City Attorney Kenyon’s legacy
Michelle Kenyon, Piedmont City Attorney
Burke, Williams and Sorensen, LLP
Legal Interpretation of Section 9.02 of Piedmont City Charter
INTRODUCTION
Questions have been posed regarding whether a vote of the electorate is required under City Charter Section 9.02 to modify the permitted or conditional uses or increase densities within an established zone. Both the Charter and City Code language support the City’s longstanding interpretation that zone reclassification is the changing of property from one zone to another, not modifying the permitted or conditional uses, or densities, that are allowed within each zoning classification. As a result, while changing the zoning boundaries, including by changing a property from one zone to another, does require a vote, modifying uses or densities within an established zone does not require a vote at a general or special election under the City’s Charter.
DISCUSSION
The principles of statutory construction apply to the interpretation of charter provisions. (White v. City of Stockton (2016) 244 Cal.App.4th 754, 759.) The first step in construing a charter provision is to review the language of the charter, giving effect to its plain meaning, and where the words of the charter are clear, the plain language governs. (Don’t Cell Our Parks v. City of San Diego (2018) 21 Cal.App.5th 338, 349.) In doing so, courts “give effect to every word in a statute and avoid a construction making a statutory term surplusage or meaningless.” (See e.g., In re Jerry R. (1994) 29 Cal.App.4th 1432, 1437.) In the event the charter is susceptible of more than one reasonable interpretation, courts consider the use of extrinsic aids, including the longstanding interpretation by the agency tasked with administering the law. (Don’t Cell Our Parks, 21 Cal.App.5th at 350.)
The City’s Charter provides that “[t]he Council may classify and reclassify the zones established, but no existing zones shall be reduced or enlarged with respect to size or area, and no zones shall be reclassified without submitting the question to a vote at a general or special election.” (City Charter, § 9.02 [emphasis added].) The term “reclassify” is not explicitly defined by the Charter. However, Section 17.02.010.C of the City Code, which was amended in 2017, does make clear that “reclassify” means changing a property from one zone to another. The Code provides: “the prohibition not to reduce, enlarge, or reclassify a zone without a vote is understood to mean the city may not change the zone boundaries, or change (reclassify) a property from one zone to another.” (City Code, § 17.02.010.C.) This definition of “reclassify” contained in the City Code has significance in determining what the City Charter meant when referring to “reclassify”. (C.f. California Housing Finance Agency v. Patitucci (1978) 22 Cal.3d 171, 175 [Legislative interpretations of a governing document such as a Constitution is of “persuasive significance”.] In addition, the interpretation that reclassification refers to changing property from one zone to another is reflected in Section 17.62.030.C: “If a property reclassification from one zoning district to another has been proposed by a person other than the property owner, including the city, the city will mail notice of all hearings to the property owner.” (Emphasis added.) Thus, the language of both the Charter and City Code support the City’s interpretation that a zoning reclassification is the changing of property from one zone to another.
Moreover, the legislative history demonstrates that “reclassification” or “reclassify” referred to changing property from one zone to another. Prior to the City’s Code revisions in 2017, the City Code contained language confirming that the City’s current interpretation. Section 17.36.1 of the City Code previously provided that “[u]pon the filing of a petition by an individual, the Council may also propose reclassification of property from one zone to another or to redraft the boundaries of any zone.” (Emphasis added.) Section 17.36.3 of the City Code provided that “[w]hen an individual proposes reclassification of property from one zone to another, a written application shall be filed with the Director of Public Works.” (Emphasis added.) Lastly, Section 17.36.5 of the City Code provided that “[t]he Council may also reclassify property to Zone A with the written consent of all property owners, as provided in section 9.02 of the City Charter.” (Emphasis added.) These three sections were adopted by the City in 1987, and had been part of the City Code for almost 30 years until revisions referred to above in 2017.
Collectively, the current and prior provisions of the zoning code make clear that reclassification was intended to apply to changing properties from one zone to another. Using these City Code provisions to assist in interpreting our Charter is supported not only by the language of the provisions themselves, but is also supported in case law. Courts have readily relied on use of similar language in other statutes to help interpret the meaning of words and phrases. (In re Do Kyung K. (2001) 88 Cal.App.4th 583, 589 [“To understand the intended meaning of a statutory phrase, we may consider use of the same or similar language in other statutes, because similar words or phrases in statutes in pari materia [that is, dealing with the same subject matter] ordinarily will be given the same interpretation.”].
Moreover, no provision in the Charter or City Code suggests that modification of the permitted or conditional uses or densities allowed within each zone constitutes a “reclassification” of the zone requiring a vote at a general or special election. The Code divides the City into five separate zones and establishes the “intent” for each zone, which describes the purpose and character of each zoning classification. (City Code, §§ 17.3 through 17.14.) The City Code does not contain any restrictions on the authority of the Council to modify those permitted and conditional uses, and does not contain any language to suggest that a modification of those uses or densities would constitute zone reclassification. (Id.)
Finally, the City’s consistent interpretation of a statute over the years also provides additional legal support for the City’s current interpretation of Section 9.02. Consistent construction of a statute, ordinance, or charter provision, especially when it originates with an agency that is charged with putting the statutory machinery into effect, is accorded great weight. This deference to a local agency’s interpretation is particularly warranted when an agency’s interpretation is of long standing.” (Mason v. Retirement Bd. of City and County of San Francisco (2003) 111 Cal.App.4th 1221, 1228; and City of Walnut Creek v. County of Contra Costa (1980) 101 Cal.App.3d 1012, 1021 [citations omitted]). Here, the relevant City Code provisions that discuss what constitutes a “reclassification” of City property were adopted almost 30 years ago in October of 1987. Since then, there have been several modifications of the permitted and conditional uses within the established zones,1 and the City has consistently interpreted Charter Section 9.02 as not requiring a vote at a general or special election before the City Council takes such action. This longstanding and consistent interpretation of Charter Section 9.02 by the City is reasonable in light of the language in the Charter and City Code, and must be accorded great weight. Thus, the City’s interpretation of the term “reclassify” is supported by the Charter, current and past language in the City Code and the City’s longstanding interpretation of that section of the Charter.
CONCLUSION
The City has never interpreted zone “reclassification” under Charter Section 9.02 as changing permitted uses, conditional uses, or densities, within established zones. Rather, the City has always interpreted the requirement for a vote of electorate to only come into play when the City is moving property from one zone to another, not modifying the permitted or conditional uses, or densities, that are allowed within each established zoning classification. This is a reasonable interpretation of the Charter given relevant language in both the Charter and City Code and the City’s longstanding practice of interpreting reclassification. Therefore, the City Council may modify the permitted or conditional uses or densities within an established zone without submitting the question to a vote at a general or special election.
1 The permitted and conditional uses for Zones A and C were modified in January of 2006, May of 2012 and December of 2013. The permitted and conditional uses in Zone B, D and E were modified in May of 2012, December of 2013 and in 2017. Finally, densities in Zone D were also modified in 2017.
A resident’s critique of the opinion and the City Attorney
1. Sec. 9.02 of City Charter set forth verbatim
2. Sec. 9.02 of City Charter—portions considered by City Attorney opinion and portions not referred to or discussed.
3. Principles of construction and interpretation—read as a whole; do not assume surplusage;
4. History of Sec. 9.;02 of Charter from original charter to present charter, including 1980 revision.
5. Construction of City Charter based on language and history. (Fill out analysis of language used, including separation of geographical changes and classification changes, what classification means, and the 1980 Charter change which is not explained in City Attorney opinion)
6. No ambiguity re construction of City Charter, so administrative practice and City codes irrelevant because they are subservient to Charter. In addition, the City is unable to provide the 1979 Charter committee report to the Council, the best legislative history, although the City Attorney per Council minutes was provided a copy.
Piedmont City Charter Sec. 9.02:
SECTION 9.02 ZONING SYSTEM
The City of Piedmont is primarily a residential city, and the City Council shall have power to establish a zoning system within the City as may in its judgement be most beneficial. The Council may classify and reclassify the zones established, but no existing zones shall be reduced or enlarged with respect to size or area, and no zones shall be reclassified [underlining added. Why the “and” in the foregoing provisions of Sec. 9.02 if the City Attorney’s interpretation is correct that to reclassify simply means “changing of property from one zone to another”, doesn’t the City Attorney’s interpretation render superfluous the language and no zones reclassified if it adds nothing to the preceding language, No zone shall be reduced or enlarged? The City Attorney may be arguing that the two circumstances are (1) geographically enlarging or reducing a zone and (2) moving a property from one geographical zone to another geographical zone, but category (2) seems simply a restatement of category 1 and hence the language is rendered senseless ] without submitting the question to a vote at a general or special election. No zone shall be reduced or enlarged and no zones reclassified [underlining added. Again, even though the City Attorney in her opinion never even refers to this third sentence of Sec. 9.02, doesn’t the City Attorney’s interpretation of the second sentence apply as well to the third sentence and render the two separate clauses identical and the second clause therefore superfluous?] unless a majority of the voters voting upon the same shall vote in favor thereof; provided that any property which is zoned for uses other than or in addition to a single-family dwelling may be voluntarily rezoned by the owners thereof filing a written document executed by all of the owners thereof under penalty of perjury stating that the only use on such property shall be a single-family dwelling, and such rezoning shall not require a vote of the electors as set forth above [Underlining added. This third sentence, ignored by the City Attorney in her opinion, contains an apparently important proviso that would appear to make no sense if the City Attorney’s interpretation is correct, i.e., if her conclusion is correct, that the City Charter should be interpreted so that changing the zoning of a property within a zone from other than residential to residential, or from a multiple of uses to only residential, does not move the boundary of a property from one zone to another and therefore no vote at a general or special election is required. The City Charter’s Sec. 9.02 provided that language in the third sentence is simply run out of the Charter by the City Attorney’s interpretation of Sec. 9.02. The provided that language would seem to make sense only if Sec. 9.02 is interpreted to mean that changing the use of property within a zone is a zoning reclassification, and that only if the change in zoning results in a property being zoned for solely residential use is a vote at a general or special election not required.]
The City Attorney’s opinion does not set out the entire language of Section 9.02, a relatively short provision. The City Attorney simply ignores the most critical language in Section 9.02, the provided that exception which was added in the 1980 revised City charter. Addition of the provided that language obviously was not intended to be superfluous language, but clearly by ordinary interpretation of English language is an exception to the requirement that changes in permitted zoning use requires a vote of the electorate. By referring only to short portions of the Sec. 9.02 and ignoring the critical addition in the 1980 charter revision, the City Attorney neglects to consider the critical language necessary to properly interpret Section 9.02. The City Charter discloses no other language regarding zoning, except for the first and third sentences of Sec. 9.02, and Sec. 3.12 which would appear to shed no light on the issue of reclassification. Sec. 3.12 provides:
SECTION 3.12 PLANNING DIRECTOR
There shall be a Planning Director who shall be responsible for administering the City’s continuing planning activities as assigned by the City Council, including, but not limited to, maintenance of the general plan, overseeing the zoning system and building regulations and codes.). (Underlining added)
Therefore, the City Attorney’s opinion relies almost exclusively on the City Code and City practice in reaching her conclusion. Clearly, the City Charter controls over any inconsistency in the City Code or the City administration of the City Charter. But in her opinion the City Attorney never deals with the comments above that City Charter Section 9.02 by its express language, (a) in the first sentence establishes two circumstances, (1) reduction or enlarging of a zone and (2) reclassifying a zone and (b) that notwithstanding (provided that) the general rule that No zone shall be reduced or enlarged and no zones reclassified, Sec. 9.02 provides that a change of zoning of a property to only residential shall not require a vote of the electors as set forth above. What could possibly be the intention of the provided that language if changing the zoning of a property without changing the property from one zone to another is not a reclassification? This provision must have been intended to have some meaning and the only apparent meaning is to establish an exception to the rule that reclassification, meaning a change in zoning of a property, requires a vote of at a general or special election, separate and apart from reduction or enlargement of a zone, if the change in zoning is to permit only residential use.
The City Attorney’s assertion on p. 2 of her opinion, that the language of both the Charter
and City Code support the City’s interpretation that a zoning reclassification is the changing of property from one zone to another, is coupled with no citation in the opinion of what, if any, City Charter language supports her conclusion. No such language in the City Charter exists to support the City Attorney’s conclusion. In her opinion the City Attorney sets forth only the second sentence of Section 9.02, ignoring the third sentence and the provided that clause of that sentence. The City Attorney assets on p. 2 of her opinion that, Moreover, none of the language in the Charter . . .suggests that modification of the permitted or conditional uses allowed within each zone constitutes a “reclassification” of the zone requiring a vote at a general or special election. But contrariwise, the Charter’s repeated establishment of the two categories ( 2nd sentence: no existing zones shall be reduced or enlarged with respect to size or area, and no zones shall be reclassified and third sentence, No zone shall be reduced or enlarged and no zones reclassified) strongly suggest that the election requirements of Sec. 9.02 apply to more than boundary changes, and the provided that language of the third sentence of Sec. 9.02 directly contradicts the City Attorney’s conclusion.
The reason for the provided that language in the third sentence of City Charter Sec. 9.02 seems readily apparent. The first sentence of Sec. 9.02, ignored by the City Attorney in her opinion, sets forth the intention of the City Charter to protect and foster residential use in the City of Piedmont. That first sentence begins, The City of Piedmont is primarily a residential city. This intention could easily be frustrated by, e.g., rezoning residential properties in a residential zone commercial. On the other hand, rezoning commercial or mixed use zoned property in a zone to solely residential, as contemplated in the provided that provisions of the third sentence of Sec. 9.02, fosters the primary character of Piedmont as a residential City. To protect the primary character of Piedmont as residential the Charter should not be read to allow destruction of that primary character by rezoning residential to commercial without a general or special election majority vote in favor, especially when the language explicitly sets out two categories, reclassification of a zone as well as reduction or enlargement of a zone. To foster the primary residential character of the city, Sec. 9.02 makes an exception to the requirement for a special or general election majority vote, and by voluntary action of the property owner allows a change in use to solely residential use.
In this respect, the Municipal Code is consistent with the City Charter Sec. 9.02, in that the Code introduces the chapter on zoning (Charter 17) as follows in Section 17.1, entitled Intent:
The City of Piedmont consists primarily of unique single family residences set among mature trees and other vegetation. The residents of Piedmont believe it to be in the welfare of all residents to preserve the beauty and architectural heritage of the City’s housing stock, the mature vegetation, and the tranquility and privacy which now exist.
It is not the law that the City Council by ordinance may enact a zoning code that conflicts with the City Charter, the organic law of the City. The code regulations must be read in harmony with the language and intention of the City Charter. Indeed, the code is consistent with Sec. 9.02 properly read and explained above.
Section 17.4 of the Piedmont Municipal Code provides, in part: The Zoning Map shall show by boundaries and designation the boundaries and classifications have been established by this Code and the Charter, and any amendments thereto. (Underlining added). Section 17.4 recognizes by its own language that boundaries are separate from classifications. Again, the City Attorney in her opinion ignores provisions of law, such as Section 17.4, that are not consistent with her conclusion.
In at least one important matter, whether Section 9.02 of the City Charter (added to the Charter in 1927) allows a change in zoning use, the City Attorney’s written legal opinion was demonstrably incorrect and in direct contradiction to the simple, direct and unmistakable language and history (never mentioned by the City Attorney) of the City Charter, Section 9.02 prohibits a zoning change without a vote of approval by city residents. (“no zones shall be reclassified without submitting the question to a vote of the electors held at a general election or a special election to be called for the purposes, and . . . no zones reclassified unless a majority of the voters voting upon the same shall vote in favor thereof..” Such a City Attorney’s opinion provides no authority for the Council to proceed in violation of the very language of the Charter that was added to the Charter specifically for the benefit of the residents of the predominantly residential City.
In another more recent matter, the Linda dog run, the City Attorney, when telling Council that the Regional Water Board had authority to impose $66,000 per day for unpermitted water runoff from the dog run, failed to advise that the penalty was a legal maximum allowed in egregious circumstances and that there was no evidence whatsoever that such circumstances were present with the dog run, that the matter could not be rectified and the dog run continue to operate, or that the regional Water Board or its staff ever suggested, threatened or had a history of imposing such penalties or any penalty whatsoever in comparable circumstances. The Council was buffaloed by the failure of the City Attorney and City staff to provide a true picture of the issue and this resulted in harm to many City residents who lost a valuable and singular dog run in the City.
In a third matter, the proposed conversion to an electric auto charging facility of the former Shell gas and service station, the Council and public spent considerable time in public meetings with Shell discussing limitations on the proposed new electric charging facility. These public discussions were a farce and could have been avoided if the City Attorney had simply divulged to the Council and residents that Shell was legally exempt by state statute to any such attempted City limitations. The goal seemed to be to lull the City into accepting minor limitations that were simply unenforceable under state law; moreover, if the controlling state statute had been timely disclosed it may have led to development of other strategies for addressing nearby residents to feared adverse impacts from operation of the proposed EV station.
These examples contain an important lesson. The City Council and the City Attorney, appointed by the Council, each have a position of trust, with an obligation to City residents to exercise due diligence, to disclose relevant information and be truthful. The Council needs to exercise closer and better oversight of its appointed City Attorney to assure fidelity in legal services provided with funding from the City residents.