Menlo council's referendum delay not illegal, says attorney Menlo council's referendum delay not illegal, says attorney (March 31, 2004)

By Rebecca Wallace
Almanac Staff Writer

Despite accusations that the Menlo Park City Council is flouting the law by stalling a vote on new home-building rules, an attorney with the California Secretary of State's office says there's nothing illegal about the delay.

Because a referendum petition drive by a residents' group called Citizens for Sensible Neighborhood Development was successful, the council must either rescind the home-building rules or have the voters decide whether to do so. The group says the council should have made that decision March 2, the first council meeting after the petition was certified.

A divided council, however, put off the matter until June 8, with members in favor of the delay saying they need more time to see whether residents' opposition to the rules is based on fact or misinformation.

The delay infuriated the petitioners. But Tony Miller, legal counsel for the secretary of state, said the California Elections Code does not forbid the delay, as long as the council ultimately either repeals the law, puts it on a special ballot, or puts it on the ballot for the next regular election -- in this case, November 2. Council members have opposed having a special election because of its added cost.

"There's nothing in the code that specifies the timeline for the city council to act. There's nothing that precludes them from tabling the discussion," Mr. Miller said.

City Attorney Bill McClure said the code can be interpreted to mean that a council must act right away, but added that most city officials agree that the matter could be tabled, as long as the deadline for the November ballot is met.

To make that ballot, the city must submit all paperwork on the measure, including a legal analysis, to county elections officials by August 6. To have time to assemble the paperwork, the council would probably have to decide no later than the middle of July to put the matter on the ballot, Mr. McClure said.

Someone opposing the delay could seek a court order to force the council to act immediately. But the process has many steps that take time. For example, once that petition is filed in court, the city has 30 days to file a response.

Chuck Bernstein, a resident who has blasted the council for its failure to act, said he would not take what could be pricey legal action, adding, "Either we pay for it out of our own pockets or out of the city's pockets (if the city loses). I don't think anybody wants to do that."

The Citizens for Sensible Neighborhood Development group has not yet decided whether to take legal action, said Kelly Fergusson, the planning commissioner heading the effort.

Catherine Engberg, an attorney for the group, said she feels the requirement for the council to act right after a petition is certified is "implicit in the elections code."

"By requiring them (the council) to either repeal the ordinance or place it on the ballot, the law says you have to do one or the other," she said.

In a March 24 guest opinion piece in the Almanac, Mr. Bernstein cited several sections of the elections code that he said require the council to act right away on the referendum petition. But those sections refer either to county governments or the municipal initiative process. Mr. Miller said those processes are separate from the municipal referendum.

While acknowledging that he's not an attorney, Mr. Bernstein said it seemed logical to him that since the municipal referendum section did not have a specific timeline, he would turn to a similar section that did.

"There's parallel language all up and down. It just seems that the timing ought to be parallel also," he said.

Regardless of whether tabling is illegal, Ms. Engberg, Ms. Fergusson and Mr. Bernstein agreed that it makes the council look unresponsive to its constituents. In addition, they said, with the matter not yet on the ballot, money could be spent on the campaign opposing the referendum without having to be reported to elections officials.

Ms. Fergusson added, "The delay creates uncertainty for both current property owners thinking about developing and people thinking about buying."

Councilwoman Mickie Winkler, who supports the home-building rules and made the motion to table the question, said the delay had allowed her to speak to about 50 residents on both sides of the issue, which would help her decide how to vote. She said many of the people she talked to were not informed about the rules, which made her less likely to support rescinding them.

Both sides have accused each other of spreading misinformation during the petition drive, but Ms. Winkler said she had no intention of challenging the legitimacy of the petition.

In response to the concern that a delay could harm the real estate market, Ms. Winkler said current zoning law also contains uncertainty. She added that she did not know of anyone raising money for a referendum campaign.

Supporters of the new rules say they would create concrete rules that would make it easier for people building and remodeling homes to navigate the approval process. Opponents say they remove needed human discretion, making way for outsized housing.

Mayor Lee Duboc and Councilman Nicholas Jellins -- who support the rules -- also voted to table the matter on March 16. Councilmen Chuck Kinney and Paul Collacchi have opposed the rules and tabling the issue.

In the last Menlo Park referendum, opponents of a ban on gas-powered leaf blowers had their petition certified on June 26, 1998. At the next council meeting, on July 14, the council postponed the matter until July 21, then on that day chose to put the matter on the November ballot. The ban was voted down in November.

The state elections code is online at www.leginfo.ca.gov.

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