San Francisco City Attorney Dennis Herrera’s ruling yesterday invalidating the recently-qualified referendum on Bayview Redevelopment has statewide implications. By concluding that referendum petitions must include every “critical” document “incorporated by reference” into the applicable Ordinance, Herrera’s ruling, if upheld by the courts, effectively kills the provision of California Redevelopment Law that gives citizens the power to stop the creation of Redevelopment Areas via referendum. Simply put, there is no way signatures can be collected on a phone-book size petition. The City Attorney had legal authority for his ruling, though he just as easily could have upheld the petition on the grounds that it contained the “critical text” necessary for voters.
The City Attorney had discretion to decide whether the missing documents were “critical” to a reasonable person deciding whether to sign. Since the text of the Ordinance was included, he could readily have concluded that nothing material was added by the absent documents.
Although attaching a phone-book size document to the petition would have made signature gathering impossible, the Court of Appeal in Nelson v. Carlson 17 Cal.App. 4th 732 (1993) rejected the petitions on the grounds that the test is not how voluminous are the missing materials, but rather “would reasonably assist someone considering whether to sign the petition.”
City Attorney Herrera easily could have found that signers of the petitions would not reasonably have been influenced by the missing documents. He found differently,
disenfranchising the over 33,000 who did sign.
None of the cases cited by the City Attorney closely parallel the Bayview petitions, and it will ultimately be up to the Court of Appeal to resolve the petition’s validity. Given a long string of pro-Redevelopment Agency opinions by California’s appellate courts, chances are in Herrera’s favor that his ruling will be affirmed.
The City Attorney’s ruling, after requested to investigate the issue by Mayor Newsom and Supervisors Peskin and Maxwell, explains the lack of mayoral and political reaction to the referendum’s qualifying last week. Clearly, political insiders had been tipped off as to the measure’s potential legal infirmities.
The City Attorney’s action comes on the heels of land use initiatives and referendums being recently removed from the ballot in Albany and Oakland on highly questionable grounds. If his ruling prevails, it essentially means that California Redevelopment Law’s providing of the option for a referendum for challenging the creation of Redevelopment Areas is no longer a viable option. All Agency proponents must do is incorporate enough documents “by reference” so as to prevent the practical ability to collect the necessary signatures.
On the night the referendum qualified for the ballot, Supervisor Maxwell issued a press release announcing she looked forward to the voters deciding the issue. But voters are unlikely to get this opportunity.
There is nothing to stop the Mayor and Supervisors from putting the question of Bayview Redevelopment on the ballot themselves. But as we have argued for months, the whole point of transforming Bayview into a Redevelopment Area is take decision-making away from the voters so that the community’s future can be carved out in backrooms by the San Francisco 49ers, Lennar Corp, and Forest City Enterprises.
The last thing these interests wanted was a citywide debate over the neighborhood’s future, which the referendum would have forced.
And after another legal ruling disenfranchising an African-American neighborhood, few will wonder why voter turnout and civic participation in Bayview-Hunters Point steadily declines.
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