The state attorney general will support a Norco resident's lawsuit against the Norco City Council seeking to force a referendum on a controversial zoning change.
The zoning enacted by the council last June allows homes to be built in the northern end of the city on lots smaller than half an acre, the city's traditional lower limit for lot size.
When opponents of the zoning change presented petitions requesting that the matter be put to a citywide vote, the council refused, saying the referendum's outcome could place the city in violation of state law.
Reversal of the council's action would cause the area to revert to its old, half-acre agricultural zoning, which would be inconsistent with the broad land-use plan for the city adopted by the council.
That inconsistency would violate state law, which requires zoning--the specific plan for an area--to conform to the city's more general land-use plan, the city attorney advised the council.
But Louis deBottari, a former councilman and leader of local opposition to small-lot zoning, said he believed that the City Council erred not only in making the zone change, but also in rejecting the referendum.
"If I didn't pursue it," he said, "the right of voter referendum with regard to zoning would be completely gone."
Sued and Lost
So deBottari sued the council in Riverside County Superior Court--and lost.
Now deBottari is appealing the lower court's decision to the 4th District Court of Appeal in San Bernardino. The attorney general's office will file a friend-of-the-court brief supporting his appeal, Deputy Atty. Gen. David Hamilton said.
"The issue we think is so important," Hamilton said, "(is that) the City Council has no discretion to refuse to submit a properly qualified referendum to the voters."
Under state law, he explained, a city council has only two options when its receives referendum petitions with sufficient signatures: to reverse its earlier action that prompted the petition drive or to submit the question to the city electorate.
"If council members feel . . . that the ordinance is somehow illegal, they still have no discretion," he said. "They still have to submit it to the voters."
If the referendum reversed the council decision, the council could then file suit to overturn the voters' decision, Hamilton said. "That would be an option for the City Council. . . .
"What they don't have the option to do," he added, "is keep it from the voters."
But City Atty. Barry Brandt, who in June advised the council to reject the referendum, disagreed with the attorney general's statement. "That's simply not true," Brandt said.
Court Backed Landowners
In several cases, courts have granted landowners' requests to stop referendums like deBottari's, Brandt said. "The court said, 'You're right, it would be an illegal act and you can't go to an election.' "
Citizens have a right to challenge zoning decisions, the city attorney said, but must first change the city's general plan when the proposed zoning would cause a conflict. To reverse the zoning decision first, Brandt said, "is like the tail wagging the dog."
DeBottari said he chose to attack the zoning change, rather than the general plan amendment enacted by the council the same night, partly because the less-abstract zoning is easier to explain to voters.
In addition, the City Council enacted the zoning change by ordinance, an action which takes effect 30 days after approval, allowing opponents time to challenge it by referendum.
The council amended the general plan, however, by a different procedure. It passed a resolution, which took effect that night and could only be overturned by initiative--a more time-consuming process than a referendum.
The state law requiring consistency between the general and specific land-use plans "doesn't say, 'If you change one, you instantaneously have to change the other,' " deBottari said. "The statute doesn't rise above the election code; it doesn't rise above the California Constitution."
Could Amend Plan
The City Council could easily amend the general plan for consistency after voters rejected a zoning change, he said.
DeBottari has until March 13 to file his arguments with the appellate court and the city will then have 30 days to respond.
The 52 acres at the center of the legal wrangling are in the northern end of Norco, along the bluffs overlooking the Santa Ana River, west of Hamner Avenue, the city's main street.
Deane Financial, the company that wants to build 128 homes on the land, received approval of its tentative tract map from the Norco Planning Commission Wednesday night. The tentative map and, later, a final tract map, still require City Council approval before construction can begin.