Opinion
B303160
04-30-2021
CITY OF PASADENA et al., Plaintiffs and Respondents, v. MARK JOMSKY et al., Defendants and Respondents; GEORGE BERNALES et al., Real Parties in Interest and Appellants.
Law Offices of Stanley H. Kimmel and Stanley H. Kimmel, for Real Parties and Appellants. Pasadena City Attorney's Office, Michele Beal Bagneris, Theresa E. Fuentes; Strumwasser & Woocher, Fredric D. Woocher, Dale K. Larson, for Plaintiffs and Respondents. Alvarado Smith, Raul F. Salinas, for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 19STCP04690) APPEAL from an order of the Superior Court of Los Angeles County, Mary H. Strobel, Judge. Affirmed. Law Offices of Stanley H. Kimmel and Stanley H. Kimmel, for Real Parties and Appellants. Pasadena City Attorney's Office, Michele Beal Bagneris, Theresa E. Fuentes; Strumwasser & Woocher, Fredric D. Woocher, Dale K. Larson, for Plaintiffs and Respondents. Alvarado Smith, Raul F. Salinas, for Defendants and Respondents.
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INTRODUCTION
George Bernales and Susan Gomez, real parties in interest (appellants or proponents), appeal the trial court's order granting a petition for writ of mandate filed by plaintiff City of Pasadena (city) and ordering respondent Mark Jomsky, the clerk of the city of Pasadena (city clerk) to refrain from including a certified initiative on the March 3, 2020 ballot.
The certified initiative at issue in this appeal is titled the "People's Initiative to Preserve the Existing Operation of Non-Offending Commercial Cannabis Businesses," (initiative, § 1) and will be referred to and cited in this opinion as the initiative. Proponents submitted the initiative along with a "Notice of Intent to Circulate" to the city clerk on March 6, 2019.
FACTUAL AND PROCEDURAL BACKGROUND
A. History and background
Statewide initiative: Proposition 64
"On November 8, 2016, California voters passed Proposition 64 as an initiative measure. Proposition 64 legalized adult, recreational use of marijuana and reduced the criminal penalties for various offenses involving marijuana, including its cultivation and possession for sale." (County of Kern v. Alta Sierra Holistic Exchange Service (2020) 46 Cal.App.5th 82, 88.) Current law does not restrict cities and counties from prohibiting or regulating commercial marijuana businesses within their jurisdictions through mechanisms such as business license requirements, zoning and land use requirements, and health and safety regulations. (Bus. & Prof. Code, § 26200.)
Measure CC
Measure CC, proposed by the city and approved by the voters on June 5, 2018, amended the Pasadena Municipal Code to add chapters legalizing and regulating the cultivation, sale, and delivery of cannabis within the city's boundaries. The measure requires both a commercial cannabis permit and a land use permit to operate, and places restrictions on the number and types of permits available citywide and in each council district. (§§ 5.78.060, 17.50.066.) Measure CC authorizes city staff to create and implement an administrative process to receive, consider, rank, and grant applications for commercial cannabis permits. (§§ 5.78.070, 5.78.080.) Measure CC provides that commercial cannabis permits are valid for one year and must be renewed; cannot be transferred and do not run with the land; and are valid only at the original location, unless the City approves transfer to a new location pursuant to Zoning Code requirements. (§ 5.78.110.) Measure CC also prohibits the issuance of a commercial cannabis permit to any business that had previously conducted commercial cannabis activity within the city in violation of city law and, after having been notified by the city of its non-compliance, failed to discontinue its unlawful operations in a timely manner. (§ 5.78.100(D).) Measure CC requires permitted cannabis retailers to be located in areas zoned for the central district, or commercial and industrial uses, and also to be located a certain distance away from identified uses such as schools, places of worship, and residences, and between each of the businesses themselves. (§ 17.50.066(D)(5).)
Pasadena Ordinance No. 7326.
All statutory references are to the Pasadena Municipal Code, unless stated otherwise.
Section 5.78.070(A) states: "The city manager shall promulgate the procedures to govern the application process and the manner in which the decision will ultimately be made regarding the issuance of any commercial cannabis permit, which shall require the city manager to provide detailed objective review criteria to be evaluated on a point system or equivalent quantitative evaluation scale tied to each set of review criteria. The city manager or his/her designee shall appoint a selection committee[.]" Section 5.78.080 sets forth the selection process for awarding business permits. Under direction of the City Manager, the selection committee is directed to "review and score each application" for a permit, and to "rank applications" using specific criteria, such as commercial cannabis business experience, knowledge of cannabis strains and products, employee training, social equity and employee benefits, and security. (§ 5.78.080(A), (B), & (C).) The top ranked applicants who secure a viable business location and the required land use approvals from the planning and community development department obtain commercial cannabis business permits. (§ 5.78.080(F), (G), & (I).)
Section 5.78.110 provides, in part: "A commercial cannabis permit may be renewed if the permittee meets the renewal requirements including: (1) pays the renewal fee; (2) has complied with all provisions of this chapter for the past year; and (3) documents and provides any changes that have occurred to the information on the current commercial cannabis permit application."
State law restricts cannabis retailers' distance from schools, but not from the other sensitive uses included in the Municipal Code. (Health & Saf. Code, § 11362.768, subd. (b).)
Unauthorized businesses
Until the enactment of Measure CC in June 2018, the city prohibited any commercial marijuana business or activity. Despite the prohibition, several cannabis retail businesses were operating within the city. The city identified 18 commercial cannabis businesses that were operating in the city in 2018, and took steps to close them. By November 2019, only 4 of the 18 identified businesses were still in operation.
Throughout their opening brief, appellants refer to the initiative as the "zoning initiative." The initiative proposes amendments to ten different sections of the Pasadena Municipal Code, with nine of the sections falling under Title Five (Business Licenses and Regulation), and only one falling under Title Seventeen (Zoning).
Section 2 of the initiative presents findings and declarations, acknowledging the enactment of Measure CC in June 2018 and the fact that certain cannabis businesses would not be able to continue to operate. The initiative's last two declarations state that "WHEREAS, existing non-offending commercial cannabis businesses which operated without criminal conviction during calendar year 2018 should be allowed to continue to operate in their present locations, provided that they comply with PMC Chapter 5.28 (Cannabis Business Tax), and [¶] WHEREAS, the voters of the City of Pasadena wish to permit said non-offending commercial cannabis businesses to continue to operate in their present location." (Initiative, § 2.)
The initiative defines a "non-offending commercial cannabis business" (NOCC business), as a "commercial cannabis business which operated in calendar year 2018," and "did not cause adverse secondary effects resulting in a criminal conviction in calendar 2018, and did not create burdens on neighboring businesses and residential neighborhoods resulting in a criminal conviction in calendar 2018." (Initiative, § 3, ¶ 2.)
One key provision of the initiative would add the following language to section 5.78.060, which under the existing provisions enacted by Measure CC requires all commercial cannabis businesses to have a valid permit from the City: "[NOCC] businesses may continue engaging in commercial cannabis activity within the City of Pasadena without a commercial cannabis permit from the City of Pasadena until December 31, 2024. [NOCC] businesses operating without a permit pursuant to this subdivision shall not be deemed, ordered discontinued, modified, or removed as, a public nuisance pursuant to the Pasadena Municipal Code based solely on their engagement in commercial cannabis activities permitted by this Chapter. Owners of [NOCC] businesses operating without a permit pursuant to this subdivision may apply for a commercial cannabis permit from the City of Pasadena at any time. After December 31, 2024, all commercial cannabis businesses may operate only after such businesses apply for and receive a commercial cannabis permit pursuant to this Chapter." (Initiative, § 3, ¶ 3, amending § 5.78.060.)
Existing law prohibits granting a permit in certain situations, including prior non-compliance or failure to pay taxes or fees. (§ 5.78.100.) The initiative would delete the current municipal code's prohibition on granting a permit to any applicant who was operating a cannabis business ("conducting commercial cannabis activity") as of December 14, 2017, in violation of state and local law. (Initiative, § 3, ¶ 4, amending § 5.78.100.)
The initiative would amend Title Five of the municipal code to require city officials to allow NOCC businesses to register and pay cannabis taxes, and would specify that no NOCC business could be deemed to be in violation of the municipal code for operating as such. (Initiative, § 3, ¶ 8, amending § 5.78.180.)
The proposed new language would be added to section 5.78.180, and state: "Neither the City of Pasadena tax administrator nor any other Pasadena City official shall prevent or deny a non-offending commercial cannabis business from registering for or tendering or paying applicable City cannabis taxes, and no non-offending commercial cannabis business shall be deemed in violation of the Pasadena Municipal Code for operating as a non-offending commercial cannabis business."
The initiative's tenth proposed amendment to the municipal code is to Title Seventeen, Zoning. Specifically, the initiative proposes amendments to section 17.50.066(D). Existing law, as enacted by Measure CC, requires a commercial cannabis retailer to obtain both a commercial cannabis permit and a use permit, limits number of cannabis retailers city-wide and in each city council district, and places restrictions on the permissible locations of cannabis businesses. (§ 17.50.066(D)(1)-(D)(3) & (D)(5).) The initiative would amend the law to specify that NOCC businesses would not be subject to the permitting requirements or location restrictions. In addition, NOCC businesses would not be counted against the restriction on total number of cannabis businesses within the City, and within each district. (Initiative, § 3, ¶ 10, amending § 17.50.066(D).)
In the initiative, section 3, paragraph 10 is mislabeled as paragraph 6. However, based on the fact that it appears after paragraph 9, we will refer to it as paragraph 10.
C. Certification and staff report
Appellants submitted the initiative along with a "Notice of Intent to Circulate" to the city clerk on March 6, 2019, followed by signed initiative petitions on July 31, 2019. The city clerk certified the sufficiency of the petition and signatures on September 12, 2019.
On September 16, 2019, acting pursuant to Elections Code section 9215, the city council directed staff to prepare a report on the impacts of the proposed initiative. Summarizing the proposed initiative's impact, the report stated it "would allow more cannabis retailers to operate in Pasadena and at locations other than those approved by the voters when Measure CC was passed." According to the city's report, nothing in the initiative would prevent NOCC businesses from relocating from the place they were doing business in 2018 to a different location in Pasadena. While cannabis retailers seeking a city permit would need to go through the process put in place by Measure CC, a NOCC business would be exempt from the business permit and the conditional use permit processes until December 31, 2024.
The staff report identified 18 businesses that would qualify as NOCC businesses, noting that 14 of the 18 were no longer in operation. All 18 businesses had been cited for operating illegal cannabis dispensaries, and of the 4 that were still operating, 3 had been criminally charged.
On October 7, 2019, the city council directed that the initiative be placed on the ballot for the next regularly scheduled municipal election, which was scheduled for March 3, 2020, consolidated with the statewide primary election.
D. Trial court proceedings
On October 30, 2019, the city filed a petition for writ of mandate and complaint for injunctive and declaratory relief, seeking an order preventing the initiative from being placed on the March 2020 ballot. On November 6, 2019, the court set an expedited briefing schedule, with a hearing set for December 12, 2019, in light of the deadlines for preparing the March ballot.
On December 12, 2019, the trial court granted the writ of mandate, finding that pre-election review was appropriate, and that the initiative was invalid on two distinct grounds. First, the initiative violated Article II, section 12 of the California Constitution because it identifies private corporations to have a power and duty. Second, the initiative invalidly usurped the city's administrative and adjudicative functions, rather than exercising the electorate's legislative authority.
Appellants filed a notice of appeal on December 18, 2019.
DISCUSSION
We conclude the initiative is not an exercise of legislative authority, but rather an exercise of administrative and adjudicative functions. It is therefore "clearly invalid" under California initiative law. (Brosnahan v. Eu (1982) 31 Cal.3d 1, 4 (Brosnahan); see also Save Lafayette v. City of Lafayette (2018) 20 Cal.App.5th 657, 662 (Save Lafayette).)
Given that the initiative is invalid because it is not legislative, we do not need to determine whether it is additionally invalid as a violation of Article II, section 12 of the California Constitution.
A. Court review of initiatives
Rules of construction
Since 1911, the California Constitution has reserved to the people of California the powers of initiative and referendum. (Cal. Const., art. IV, § 1; City of Morgan Hill v. Bushey (2018) 5 Cal.5th 1068, 1078 (Morgan Hill); Associated Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, 591.) The duty of the courts "is to '"jealously guard"' the referendum and initiative powers, and to liberally construe those powers so that they '"be not improperly annulled."' [Citations.]" (Morgan Hill, at p. 1078.) "[W]e resolve doubts about the scope of the initiative power in its favor whenever possible [citation], and we narrowly construe provisions that would burden or limit the exercise of that power [citations]." (California Cannabis Coalition v. City of Upland (2017) 3 Cal.5th 924, 936 (California Cannabis).)
Preelection review
Courts examining the validity of statewide or local initiatives have expressed a preference to defer such examination until after an initiative has been approved by the electorate. (See, e.g., California Cannabis, supra, 3 Cal.5th at p. 948; Independent Energy Producers Assn. v. McPherson (2006) 38 Cal.4th 1020, 1024, 1029-1030 (Independent Energy); Save Lafayette, supra, 20 Cal.App.5th at pp. 663-664 [standard on preelection review is one of great deference].) "[I]t is usually more appropriate to review constitutional and other challenges to ballot propositions or initiative measures after an election rather than to disrupt the electoral process by preventing the exercise of the people's franchise, in the absence of some clear showing of invalidity." (Brosnahan, supra, 31 Cal.3d at p. 4.)
For certain types of challenges, however, preelection judicial review is necessary and warranted. When the California Constitution specifies that an initiative which fails to meet certain criteria "may not be submitted to the electors," preelection review is warranted, in part because "deferring a decision until after the election not only will defeat the constitutionally contemplated procedure reflected in the language of [the constitution], but may contribute to an increasing cynicism on the part of the electorate with respect to the efficacy of the initiative process." (Senate of the State of Cal. v. Jones (1999) 21 Cal.4th 1142, 1154 (Senate) [initiative may not be placed on ballot where there is a clear showing that it violates the single subject rule in Cal. Const., art. II, § 8, subd. (d)].) Similarly, when an initiative is challenged on the grounds that it is adjudicative or administrative, as opposed to legislative, preelection review is permitted because the challenge centers on "the power of the people to adopt the proposed initiative." (American Federation of Labor v. Eu (1984) 36 Cal.3d 687, 695-696 (AmFed); see also Senate, supra, 21 Cal.4th at p. 1153 [reviewing cases granting preelection relief]; City of San Diego v. Dunkl (2001) 86 Cal.App.4th 384, 394 (Dunkl) [preelection review is proper when measure is not legislative in nature].) "If the local government believes an initiative or referendum is unlawful and should not be presented to voters, it should file a petition for a writ of mandate seeking to remove it from the ballot." (Save Lafayette, supra, 20 Cal.App.5th at p. 663.)
Save Lafayette involved a pre-election challenge where the city refused to put an arguably invalid referendum on the ballot, and the referendum proponents then sought a writ of mandate. The trial court denied the writ, agreeing with the city that the proposal would impermissibly create an inconsistency with the general plan. (Save Lafayette, supra, 20 Cal.App.5th at pp. 661, 662.) The appellate court reversed, finding that the city lacked discretion to keep the referendum off the ballot, absent a compelling showing that the referendum was invalid or illegal, and to the extent the city believed the referendum was invalid, it should have sought a writ of mandate. (Id. at pp. 663, 671.)
Standard of review
A party seeking to keep an initiative off the ballot bears the burden to show the invalidity of the initiative. (See, e.g., Save Lafayette, supra, 20 Cal.App.5th at p. 663.) Where a court considers a challenge to an initiative as falling outside the scope of the electorate's initiative power, the parties disagree as to whether a preelection challenge requires a stronger showing of invalidity than a challenge to an initiative that has already been adopted by the voters. Here, appellants contend that such a challenge cannot succeed unless the initiative is "clearly invalid," citing the Supreme Court's guidance in Brosnahan, supra, 31 Cal.3d at p. 4 ["it is usually more appropriate to review constitutional and other challenges to ballot propositions or initiative measures after an election rather than to disrupt the electoral process by preventing the exercise of the people's franchise, in the absence of some clear showing of invalidity"]. The city counters that the heightened standard applies only when the opponents of an initiative challenge its substantive constitutionality, not the voters' authority to enact the initiative. (Independent Energy, supra, 38 Cal.4th at pp. 1024-1025 [Brosnahan's general rule is inapplicable to a challenge "not based on the alleged unconstitutionality of the substance of the initiative measure but rather on the contention that the measure in question is not the type of measure that may be adopted through the initiative process."].)
Appellate case law does not articulate a uniform standard of review. In Bailey v. County of El Dorado (1984) 162 Cal.App.3d 94, 99 through 100, for example, the court reasoned that if a proposed initiative's substantive invalidity was not clear, any challenge should be denied and further analysis deferred until after the initiative was approved by the voters. (Ibid., citing Legislature v. Deukmejian (1983) 34 Cal.3d 658, 666.) Similarly, in Save Stanislaus, the court explained on the question of whether a preelection challenge warranted a higher standard of review, "We do not construe AmFed, supra, 36 Cal.3d 687 as creating a dual standard for judicial review. Rather, the sole standard is that the opponent of a duly qualified initiative must make a 'compelling showing' that the measure should be removed from the ballot. Whether fundamental jurisdiction or a less-fundamental conflict with state statutes is alleged to render an initiative invalid, a court retains discretion to 'resolve doubtful cases in favor of submitting an initiative to the electorate.' (Citizens for Responsible Behavior v. Superior Court [(1991)] 1 Cal.App.4th [1013,] 1021-1022 [(Citizens for Responsible Behavior)].) Thus while a trial court has the power to order an initiative removed from the ballot if the court is convinced during preelection review that the matter is invalid for any reason, the court also retains discretion to deny that relief if it entertains significant doubt about the invalidity of the measure." (Save Stanislaus Area Farm Economy v. Board of Supervisors (1993) 13 Cal.App.4th 141, 151 (Save Stanislaus).)
In Save Stanislaus, a trial court issued a writ of mandate directing the city to place an initiative on the ballot, and opponents of the initiative appealed. (Save Stanislaus, supra, 13 Cal.App.4th at p. 144.) Although the initiative had already been defeated, the appellate court affirmed, emphasizing that a measure's opponents bore the burden of making a compelling showing that the measure was invalid and should be removed from the ballot. The trial court retained discretion to resolve cases in favor of submitting an initiative to the electorate, so when the trial court expressed doubt about whether opponents had made the necessary compelling showing of invalidity, and the doubts were supported by the record, the trial court's decision would be affirmed. (Id. at pp. 150-153.)
Another appellate court, however, rejected the notion that an initiative that was determined to be invalid should remain on the ballot if that invalidity was not clear: "Invalidity, like pregnancy, admits of no half-measures. If an ordinance proposed by initiative is invalid, routine deference to the process will often require the charade of a pointless election." (Citizens for Responsible Behavior, supra, 1 Cal.App.4th at p. 1022.) The same court continued: "if the court is convinced, at any time, that a measure is fatally flawed, it should not matter whether that decision is easy or difficult, simple or complicated. Certainly it would be unconscionable for this court, at this time, to rule in favor of [the initiative's proponent] on the basis that the issue is close—only to be faced with a postelection challenge should the measure pass." (Ibid.)
The procedural posture of the current case raises some interesting questions about whether the caution against preelection review should affect our analysis at all. Because the Elections Code establishes deadlines by which an initiative or referendum must be placed on the ballot, courts conducting preelection review are usually subject to strict time constraints. (See, e.g., Senate, supra, 21 Cal.4th at pp. 1155-1156 (maj. opn.); id. at pp. 1169-1172 (dis. opn. of Kennard, J.); but see California Cannabis, supra, 3 Cal.5th at p. 933 [reviewing preelection orders after initiative was defeated].) In the current case, however, the election date passed well before the appellate briefing was complete, and neither party sought expedited review. From the perspective of judicial economy, if we believe we would find the initiative invalid after it is enacted, we see no reason to apply a more stringent standard on a preelection review, knowing that if the initiative is passed by the voters and the initiative is challenged again, we would find it invalid. Merely deferring that decision until after an election runs counter to the Supreme Court's caution in AmFed that "[t]he presence of an invalid measure on the ballot steals attention, time and money from the numerous valid propositions on the same ballot. It will confuse some voters and frustrate others, and an ultimate decision that the measure is invalid, coming after the voters have voted in favor of the measure, tends to denigrate the legitimate use of the initiative procedure." (AmFed, supra, 36 Cal.3d at p. 697.)
Ultimately, we agree with the trial court that the initiative is invalid as beyond the scope of the initiative power because it impermissibly encroaches on administrative decision-making. Moreover, in this case, we do not find it necessary to delve into whether there is a meaningful difference between a showing of invalidity and a "clear showing of invalidity." (City and County of San Francisco v. Patterson (1988) 202 Cal.App.3d 95, 99-100 [reviewing competing positions on when preelection review is warranted].) As we explain below, there has been a compelling showing that the initiative is outside the electorate's legislative power, making it clearly invalid.
B. The initiative is not legislative action
Appellants contend the initiative is valid, as it involves an exercise of legislative action. The city disagrees and argues the trial court correctly found the initiative invalid as a proposed exercise of administrative or adjudicative action by the voters.
Legal framework
The local electorate's initiative power "is generally co-extensive with the legislative power of the local governing body." (DeVita v. County of Napa (1995) 9 Cal.4th 763, 775; Save Lafayette, supra, 20 Cal.App.5th at p. 670; see also Legislature v. Deukmejian, supra, 34 Cal.3d at p. 675.) "Legislative acts are those that declare a public purpose whereas administrative, sometimes called adjudicative or quasi-adjudicative, acts implement the steps necessary to carry out that legislative purpose." (Citizens for Planning Responsibly v. County of San Luis Obispo (2009) 176 Cal.App.4th 357, 367 (Citizens for Planning Responsibly).) "The electorate has the power to initiate legislative acts but not administrative or adjudicatory ones." (The Park at Cross Creek, LLC v. City of Malibu (2017) 12 Cal.App.5th 1196, 1203 (Cross Creek); Citizens for Planning Responsibly, supra, 176 Cal.App.4th at p. 367 ["Only legislative acts are subject to the initiative process"].) In determining whether an initiative measure is legislative, it is the substance, not the form, of the measure that controls. (AmFed, supra, 36 Cal.3d at p. 710.)
Considering the validity of a referendum that sought to unwind a city's actions, the court in Dunkl, supra, 86 Cal.App.4th 384 explained that while the electorate's referendum power encompasses legislative matters, "'administrative or executive acts are not within the reach of the referendum process [citations]. The plausible rationale for this rule espoused in numerous cases is that to allow the referendum or initiative to be invoked to annul or delay the executive or administrative conduct would destroy the efficient administration of the business affairs of a city or municipality [citations].' [Citation.]" (Id. at p. 399; see also Citizens for Jobs & the Economy v. County of Orange (2002) 94 Cal.App.4th 1311, 1332 (Citizens for Jobs).) In Dunkl, a prior voter-adopted measure authorized the city to enter into an agreement with a baseball team to work towards a redevelopment project that would include a new major league ballpark, with certain broad goals as well as conditions that needed to be met for the project to proceed. (Dunkl, supra, at pp. 389-390.) A second initiative sought to end the agreement by finding that certain conditions for the redevelopment project had not been satisfied, and requiring a two-thirds vote in a later election to reauthorize the original or any similar project. (Id. at pp. 390-391.) Before the proponents of the second initiative had gathered the required number of signatures, the city filed suit to declare the initiative invalid. (Id. at p. 389.) After noting the caselaw permitting preelection review of the purely legal question of whether an initiative should be submitted to the voters if it is not legislative in character (id. at pp. 394-395), the appellate court examined in some depth the distinction between legislative acts and administrative acts. (Id. at pp. 399-402.) The Dunkl court noted that "[o]nce a legislative policy has been established, the administrative acts that follow therefrom are not subject to referendum or initiative." (Id. at p. 400.) Legislative acts declare a public policy or purpose, and make provision for accomplishing that policy or purpose, whereas administrative acts are "'"those which are necessary to be done to carry out legislative policies and purposes already declared by the legislative body . . . ."'" (Ibid.) The appellate court concluded that the second initiative was "beyond the powers of the voters to adopt," because it did not seek to change existing legislative policy, but rather "to change the substance of the implementing decisions that were created by [the prior initiative]," and "replace City administrative discretion with voter approval." (Id. at p. 402.)
In Citizens for Jobs, a county initiative placed spending and procedural restrictions on the county board of supervisors with respect to planning and implementation of a project converting a former military air station to civilian use. After voters had voted in favor of the initiative, the trial court struck it down, finding it impermissibly interfered with administrative or executive acts, restricting the county board of supervisors' ability to define the project, hold hearings, and prepare environmental impact reports. (Citizens for Jobs, supra, 94 Cal.App.4th at pp. 1323-1324.) The appellate court agreed, reasoning that a prior measure, passed six years earlier, declared a certain legislative policy and dictated the means of carrying out that policy, and the challenged subsequent initiative added new procedural requirements, in an effort to "'administratively negate the legislative purpose'" of the prior measure. (Id. at p. 1333, quoting Dunkl, supra, 86 Cal.App.4th at p. 402.) The challenged initiative was an administrative act, not a legislative one, and was therefore invalid. (Citizens for Jobs, supra, 94 Cal.App.4th at p. 1336 [the initiative "resembles less a governing body's legislative acts, than its administrative or executive acts, which are not properly subject to initiative and referendum"].)
In the land use context, there is a categorical distinction between legislative acts, on the one hand, and administrative or adjudicative acts on the other. (See, e.g., Arnel Development Co. v. City of Costa Mesa (1980) 28 Cal.3d 511, 523-525 (Arnel) [zoning ordinances are legislative, while decisions such as variances or subdivision map approvals are adjudicative]; Wiltshire v. Superior Court (1985) 172 Cal.App.3d 296, 303-304 (Wiltshire) [the granting of a special use permit is an adjudicatory act].)
In Arnel, the California Supreme Court reaffirmed the settled principle "that zoning ordinances, whatever the size of parcel affected, are legislative acts" that may be accomplished by initiative. (Arnel, supra, 28 Cal.3d at p. 514.) In doing so, it emphasized the distinction between zoning ordinances and other "administrative decisions, such as variances and use permits," which are adjudicative. (Id. at p. 518.) In classifying such decisions as adjudicative, "courts have emphasized that the decisions generally involved the application of standards established in the zoning ordinance to individual parcels [citation] and often require findings to comply with statutory requirements or to resolve factual disputes [citation]." (Id. at pp. 518-519, fn. 8.)
A zoning amendment, which is a legislative act, changes the zoning of a specified area. (Arnel, supra, 28 Cal.3d at pp. 516-518.) In contrast, a use permit, which is adjudicative, "allows a particular use not permitted under a zoning ordinance if that use promotes the public welfare and does not impair the character of the zoned area [citation]. Special use permits within a zoning pattern allow uses considered to be desirable to a community but which, by their nature, . . . militate against their existence in every location within a zone or in any location without restrictions tailored to fit the special problems which the use presents [citation]." (Wiltshire, supra, 172 Cal.App.3d at p. 303.) Division Three of this court helpfully explained that "'A conditional use permit [CUP] is administrative permission for uses not allowed as a matter of right in a zone, but subject to approval.' [Citation.] A CUP is not a personal interest. It does not attach to the permittee; rather, a CUP creates a right that runs with the land. [Citations.] . . . A condition which relates solely to the individual or applicant for the CUP does not relate to the property's use and zoning." (Cross Creek, supra, 12 Cal.App.5th at p. 1209.)
Analysis
The appellants attempt to characterize the initiative as legislative, arguing that Measure CC was a zoning law, and because zoning is considered legislative action, their initiative proposing amendments to Measure CC must also be considered legislative. We disagree.
First, contrary to appellant's characterization, Measure CC was not principally a zoning law. Rather, its provisions set forth an administrative process to regulate commercial cannabis activity in the city. Measure CC added provisions to business and licensing requirements in the municipal code that are independent of location. (§§ 5.78.060-5.78.120.) Measure CC added a chapter to the Pasadena Municipal Code titled "Commercial Cannabis Activity." (§ 5.78.010 et seq.) The purpose and intent of the chapter is to "regulate the cultivation, processing, manufacturing, testing, sale, delivery, distribution, and transportation of medicinal and adult-use cannabis and cannabis products in a responsible manner to protect the health, safety, and welfare of the residents of the City of Pasadena and to enforce rules and regulations consistent with state law. It is the further purpose and intent of this chapter to require all cannabis operators to obtain and renew annually a permit to operate within the City of Pasadena." (§ 5.78.010.) The initiative would add the following words to the end of the above quoted section of Section 5.78.010: "except insofar as [NOCC] businesses may temporarily continue operation without undergoing these new permitting procedures." (Initiative, § 3, ¶ 1.)
The proposed initiative would place NOCC businesses outside of the existing administrative business permitting process, at least until December 31, 2024, while leaving the permitting requirements and restrictions in place for all other cannabis businesses. (Initiative, § 3, ¶ 3, amending §5.78.060.) By providing NOCC businesses with a time-limited exemption from the permit requirement, the initiative undermines the basic structure of the administrative scheme created by Measure CC to review and rank cannabis businesses based on identified criteria (i.e., experience, knowledge, employee training and systems, treatment of employees, and security), and to award to only a limited number of the most qualified businesses a permit to operate. By allowing NOCC businesses to operate outside the normal permitting scheme, the initiative also exempts such businesses from the requirement to obtain annual renewals of a permit. (§ 5.78.110.) Unlike a cannabis business operating under a city permit, which is required to have complied with all provisions of Chapter 5.78 over the prior year to renew, NOCC businesses are effectively given a multi-year term to operate where non-compliance with those provisions does not prevent continued operation. The initiative also requires city officials to accept tax payments from unpermitted NOCC businesses (initiative, § 3, ¶ 8), and prevents the same officials from declaring NOCC businesses a public nuisance or commencing any action against such businesses for engaging in cannabis sales without a permit. (Initiative, § 3, ¶ 3.)
For example, Section 5.78.160, titled "Security measures," contains detailed requirements for security, including provisions relating to limiting access, surveillance cameras, panic buttons, professionally monitored alarm systems, on-site security personnel, and reporting requirements to the city manager relating to theft, criminal activity, loss of records and more. A permitted business that violates such provision in the prior year would not fit the criteria to continue in business with a renewed permit. (§ 5.78.110.) In contrast, even if a NOCC business violated such provisions, it could continue in operation (at least through the end of 2024) without obtaining or renewing a permit.
All of the initiative's proposed amendments to Title Five of the municipal code relating to business licensing and regulation limit the city's administrative and adjudicative powers under the law. With respect to NOCC businesses, the initiative completely usurps the administrative process for permitting as a method of regulating the conduct of commercial cannabis activity occurring within the city. Although framed as exempting NOCC businesses from permitting requirements, the initiative, in substance, grants those businesses a non-reviewable multi-year business permit to operate. This is not a change in existing legislative policy. Measure CC's entire regulatory scheme remains in place for all other commercial cannabis businesses in Pasadena, and will apply to NOCC businesses after the end of 2024. The targeted, limited scope of the initiative's intended effect, when considered against the backdrop of the comprehensive regulatory scheme that remains in place, demonstrates that the initiative does not reflect legislative policymaking. Rather, the initiative seeks "to change the substance of the implementing decisions" that Measure CC entrusted to the city administrators, and to "replace City administrative discretion with voter approval." (Dunkl, supra, 86 Cal.App.4th at p. 402.) As such, the initiative is clearly invalid as "beyond the power of the voters to adopt." (Ibid.)
To the extent appellants might contend that there is a difference between the initiative, which by its terms exempts NOCC business from the permitting requirement, and a hypothetical initiative that expressly provided for giving permits to such businesses, we reject any distinction. (AmFed, supra, 36 Cal.3d at p. 710 [In determining whether an initiative measure enacts a law, it is the substance, not the form that controls].) The initiative states in its preamble that, "WHEREAS, the voters of the City of Pasadena wish to permit said non-offending commercial cannabis businesses to continue to operate in their present location." (Initiative, § 2.)
Second, to the extent Measure CC also amends Title 17, the city zoning code, the initiative does not propose changes to existing legislative policy, but rather proposes to dictate specific administrative and adjudicatory actions. Measure CC requires commercial cannabis businesses to obtain a land use permit to operate within specified commercial, industrial, and city center zones, precluding cannabis businesses from operating in other zones, such as residential zones. Further, Measure CC establishes restrictive criteria that the planning and community development department applies when deciding whether a use permit may be granted to a commercial cannabis business. (§§ 5.78.080(F), 17.50.66(D)(2)-(5).)
The initiative does not propose any changes to the zoning of any parcel of land or to any geographical area in the city. Nor does it change the long-term operation of the land use provisions implemented by Measure CC. Instead, the initiative temporarily (i.e., until the end of 2024) exempts NOCC businesses from the land permitting processes and restrictions established by Measure CC.
As with the exemption for the commercial cannabis business permit, we see no substantive difference between exempting NOCC business from land use restrictions and granting them a use permit to operate in the city over the next several years. In substance, the initiative seeks to have the voters grant the equivalent of a conditional use permit or variance. The decision to grant a use permit or variance is adjudicatory in nature, and any initiative allowing a cannabis retailer to operate without obtaining a use permit impermissibly impacts the city's administrative and adjudicatory functions. In both Cross Creek and Wiltshire, the appellate court held that the land use initiatives under consideration were invalid because they impermissibly withdrew from city government the adjudicatory function of granting a use permit or project approval. (Cross Creek, supra, 12 Cal.App.5th at pp. 1207-1208 [measure withdraws city's ability to issue discretionary land use entitlements or permits]; Wiltshire, supra, 172 Cal.App.3d at p. 303 [initiative withdraws city's power to issue a special use permit in compliance with its zoning ordinance].) Similarly here, the initiative withdraws from city administration the adjudicatory function of deciding whether to grant a use permit to a NOCC businesses, giving it instead to the voters. Because the initiative is administrative or adjudicatory rather than legislative, it is clearly invalid and cannot be placed on the ballot.
Appellants attempt to characterize the initiative as implementing a "grandfathering" provision. We reject that characterization. This is not a situation where businesses operating legally in certain locations are faced with a change in licensing and zoning requirements, and are permitted to continue operating under a grandfathering clause. Prior to Measure CC, cannabis businesses were not permitted to operate at all. Indeed, the initiative defines NOCC business as those operating in Pasadena in 2018 (when such operation was not permitted) which did not suffer a criminal conviction in that year.
DISPOSITION
The writ of mandate is affirmed. Petitioner City of Pasadena and respondent Mark Jomsky, clerk of the City of Pasadena, are awarded costs on appeal.
MOOR, J.
We concur:
RUBIN, P. J.
KIM, J.