Judge: James C. Chalfant, Case: 22STCP03172, Date: 2022-09-08 Tentative Ruling

Case Number: 22STCP03172    Hearing Date: September 8, 2022    Dept: 85

            Petitioner Susan Neuhausen (“Neuhausen”) petitions for a writ of mandate compelling Respondents Laura Aguilar (“Aguilar”), in her official capacity as Acting City Clerk of the City of Sierra Madre (“City Clerk”), and Dean Logan, in his official capacity as the County of Los Angeles Registrar-Recorder (“Registrar”), to delete or amend portions of the Argument Against Measure HR (“Argument Against”) for the November 8, 2022 General Election. 

            The court has read and considered the moving papers and opposition (no reply was permitted) and renders the following tentative decision.

            A. Statement of the Case

            1. Petition

            Petitioner Neuhausen commenced this proceeding on August 26, 2022, alleging a cause of action for mandamus, pursuant to Election Code[1] sections 9295 and 13314.  The verified Petition alleges in pertinent part as follows.

            In March 2020, the City learned of a potential housing development dubbed the Meadows at Bailey Canyon (“Meadows Project”) on a 17-acre portion of property (“Property”) owned by The Congregation of the Passion, Mater Dolorosa Community (“Mater Dolorosa”).  The Property is a large parcel of land in the City that abuts the San Gabriel mountains and is zoned for “Institutional” use.  The Meadows Project would require a General Plan Amendment and Zone Change. 

Measure HR, set for the November ballot, would rezone the Property for “Hillside/Hillside Management” (“Hillside”), which only would allow development of single-family residences on lots of at least two acres.

            The Argument Against claims that, when combined with a recent change in state law in SB 9, Measure HR would permit a developer to build as many as 68 units with limited design approval.  However, SB 9 (1) requires cities to approve applications to split lots located in single-family residential zones into no more than two parcels, (2) requires that the applicant occupy the subject parcel, and (3) prohibits the applicant from subdividing more than one plot. 

In March and April 2022, the City passed an ordinance implementing SB 9 that also required the applicant to reside on the parcel for three years prior to the application and prohibits the applicant from applying to split an adjacent parcel.

            These facts demonstrate that developers cannot take advantage of SB 9’s “urban lot split”.  The only way 68 units could be constructed as the Argument Against claims would be if every lot owner applied for an urban lot split, satisfied the criteria to do so, and then built two separate homes on the new lot.   Additionally, this scenario would require demolition of the Mater Dolorosa Passionist Retreat Center (“Center”), which will not happen. 

            The Argument Against gives voters a false and misleading impression that Measure HR would allow a developer to build a residential subdivision with virtually no City oversight and with far more units than is probable.  Neuhausen seeks (1) a writ of mandate compelling Respondents to delete or amend the false or misleading portions of the Argument Against in the Ballot Pamphlet for the November 8, 2022 General Election and (2) attorney’s fees and costs.

            2. Course of Proceedings

            On August 29, 2022, Neuhausen filed an ex parte application for order setting the hearing on the Petition on shortened time.  Respontent Registrar took no position on the merits but asked that the matter be heard by September 9, 2022 in order not to interfere with the election under section 13314.

            On August 30, 2022, Neuhausen filed a peremptory challenge to Dept. 82 (Hon. Mary Stroebel) as the Judicial Officer.  The court granted the challenge and the matter was reassigned to this court.

            On August 31, 2022, Dept. 86 (Hon. Mitchell Beckloff) granted the ex parte application and set the hearing on the Petition on shortened time for the instant date. 

            On September 1, 2022, the court informed the parties that no reply brief would be permitted for the hearing.

            B. Standard of Review

            A party may seek to set aside an agency decision by petitioning for either a writ of administrative mandamus (CCP §1094.5) or of traditional mandamus. CCP §1085. A petition for traditional mandamus is appropriate in all actions “to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station.” Ibid.

            A traditional writ of mandate under CCP section 1085 is the method of compelling the performance of a legal, ministerial duty. Pomona Police Officers’ Assn. v. City of Pomona, (1997) 58 Cal.App.4th 578, 583-584. Generally, mandamus will lie when (1) there is no plain, speedy, and adequate alternative remedy, (2) the respondent has a duty to perform, and (3) the petitioner has a clear and beneficial right to performance. Id. at 584. Whether a statute imposes a ministerial duty for which mandamus is available, or a mere obligation to perform a discretionary function, is a question of statutory interpretation. AIDS Healthcare Foundation v. Los Angeles Registrat Dept. of Public Health, (2011) 197 Cal.App.4th 693, 701.

            No administrative record is required for traditional mandamus to compel performance of a ministerial duty or as an abuse of discretion.

            C. Governing Law

            1. Elections Code

            Any elector may seek a writ of mandate alleging that an error or omission has occurred, or is about to occur, in the placing of a name on, or in the printing of, a ballot, county voter information guide, state voter information guide, or other official matter.  §13314(a)(1).  An “elector” is any person who is a United States citizen, is over 18 years old, and is a resident of an election precinct at least 15 days prior to election.  §321.  A peremptory writ of mandate shall issue on proof (1) that the error, omission, or neglect of duty is in violation of the Elections Code or Constitution and (2) that issuance of the writ will not substantially interfere with the conduct of the election.  §13314(a)(2); see Mann v. Superior Court (1986) 181 Cal.App.3d 372.

            The Legislature has expressed its determination that the state has a strong interest in providing the electorate with accurate information in voter pamphlets.  Washburn v. City of Berkeley, (1987) 195 Cal.App.3d 578, 585.  The California Supreme Court has long recognized that the essential purpose of ballot argument provisions is to give the voters information concerning the measures on the ballot.  Patterson v. Board of Supervisors, (“Patterson”) (1988) 202 Cal.App.3d 22, 29 (citation omitted).  The voter’s pamphlet can have a substantial impact on the equality and fairness of the electoral process because the arguments set forth therein are likely to carry greater weight in the minds of the voters than normal campaign literature.  Id.  at 30.  Restricting the information in the voter pamphlet to material which is neither false, misleading nor inconsistent with the purpose of the limited public forum is a way to foster the integrity of the election process and to aid citizens in making informed voting choices.  Id. at 30-31. 

            A peremptory writ of mandate will be issued only upon clear and convincing evidence that the material in question is false, misleading, or inconsistent with the requirements of the Election Code.  §9295(b)(2).  A ballot designation for a political candidate is misleading if “there is a substantial likelihood that a reasonably prudent voter would be misled as to the candidate’s principal profession, vocation or occupation…The determination shall take into account the plain meaning of the words constituting the proposed ballot designation and the factual accuracy of the proposed ballot designation based upon supporting documents or other evidence submitted by the candidate…”  2 CCR §20716(c).

The ballot pamphlet is a “limited public forum.”  Kaplan v. County of Los Angeles , (9^th Cir. 1990) 894 F.2d 1076, 1080.  In determining whether statements are relevant, courts must be extremely reticent in undertaking the essentially political task of playing copy editor with one side's wording of a voters’ pamphlet argument.  Huntington Beach City Council v. Superior Court, (“Huntington Beach”) (2002) 94 Cal.App.4th 1417, 1423.  In the political arena, “one person’s relevant argument is another person’s nonsense.”  Ibid.

            In determining whether statements are false or misleading, courts look to whether the challenged statement is subject to verifiability, as distinct from “typical hyperbole and opinionated comments common to political debate.”  Id. at 1432 (statement that a business was the only one in the city that did not pay the proposed tax was deliberately misleading).  An “outright falsehood” or a statement that is “objectively untrue” may be stricken.  Id.  at 1432.  The court will issue a writ of mandate when a petition contains undisputed, objective untruths calculated to mislead and misinform a reasonable voter.  San Francisco Forty-Niners v. Nishioka, (1999) 75 Cal.App.4th 637, 650.  Factual matters subject to dispute are not the type of untruths that may be deleted or edited by a court.  Id.

            The courts will distinguish between fact and opinion in determining whether a statement is false.  “Almost all, if not all, statements concerning the effect or application of an initiative can only be the opinion of the interpreter, and the voting public is generally aware of this.”  Chavez v. Citizens for Fair Farm Labor Law, (“Chavez”) (1978) 84 Cal. App. 3d 77, 82 (emphasis in original) (statement that proposition would deprive agricultural employers and others of personal property rights was opinion).  Opinion statements concerning the potential benefit or harm from an initiative measure are not subject to proof of their truth or falsity.  Mandicino v. Maggard, (1989) 210 Cal. App. 3d 1413, 1420 (statements about the measure’s future effects upon the community were opinion).

            Context may show that a statement that in one sense can be said to be literally true is still materially misleading.  Huntington Beach, supra, 94 Cal.App.4th at 1432.  A statement that the owner of an electricity-generating plant “refused to sign a contract for use of electricity solely in California” was true but misleading where the refusal only applied to two out of five plants, two others were pledged to the state’s independent system operator for use in California, and the fifth was reserved for a staged alert due to a shortage declared by the independent system operator.  Id. at 1435.  The court found that the statement implied that the owner only sells its electricity to out-of-state energy companies, which was misleading.  Ibid.

            2. Subdivision Map Act

            The Subdivision Map Act (“Map Act”), Government Code (“Govt. Code”) §66410 et seq., formerly SB 9, is ‘the primary regulatory control’ governing the subdivision of real property in California.”  Gardner v. County of Sonoma, (2003) 29 Cal.4th 990, 996 (citation omitted). 

            The Map Act generally requires that all subdivisions conform with local general and specific plans and all conditions of local ordinances.  Black Hills Investments, Inc. v. Albertson’s, Inc., (2007) 146 Cal.App.4th 883, 890.  A “subdivision” is the division by a subdivider of any improved or unimproved land.  §66424.  To comply with the Map Act, the landowner must secure local approval and record an appropriate map.  A tentative and final map generally are required for subdivisions of five or more parcels and a parcel map is required for four or fewer parcels.  Ibid; §66426.  A “tentative map” is a map showing the design and improvement of a proposed subdivision.  §66425.5.  A “parcel map” is a subdivision creating five or fewer lots.  The provisions of section 66452 et seq. govern tentative maps.  The procedure for processing the approval of parcel maps shall be as provided by local ordinance.  §66463. 

            A city or county’s legislative body shall deny approval of the tentative or parcel map if it finds that (1) the proposed map is not consistent with applicable general and specific plans (Govt. Code §66474(a)); (2) the design or improvement of the proposed subdivision is not consistent with applicable general and specific plans (Govt. Code §66474(b)), or (3) the design of the subdivision or the proposed improvements are likely to cause substantial environmental damage or substantially and avoidably injure fish or wildlife or their habitat (Govt. Code §66474(e)).

            Notwithstanding any other provision of the Map Act and any local law, a local agency shall ministerially approve a parcel map for an urban lot split only if the split subdivides an existing parcel to create no more than two new parcels of approximately equal lot area and the two parcels meet minimum square footage requirements.  Govt. Code §66411.7(a)(1).  Neither the owner of the parcel being subdivided nor any person acting in concert with the owner may have previously subdivided an adjacent parcel using an urban lot split.  Govt. Code §66411.7(a)(3)(G).  The local agency shall require the applicant to sign an affidavit stating that the applicant intends to occupy one of the housing units as its principal residence for a minimum of three years from the date of the approval of the urban lot split.  Govt. Code §66411.7(g)(1).

            3. Sierra Madre Municipal Code[2]

            a. Hillside Zoning Regulations

            SMMC Chapter 17.52 lists the regulations for the Hillside zone in the City.  Michel Decl., ¶¶ 17-18, Ex. I.  Uses allowed in a Hillside zone include (1) any primary or accessory use permitted in an R-1 one-family residential zone (SMMC §17.52.070(C)(1)); (2) construction of a detached single-family dwelling unit on an existing legal lot (SMMC §17.52.070(C)(2)); and (3) land divisions, whether by parcel map, tract map, or otherwise (SMMC §17.52.070(C)(3)).  Michel Decl., ¶¶ 17-18, Ex. I. 

            Any permit application must include (1) a flood plan including all measures, such as elevated building pads or floor plates, necessary to ensure adequate protection of persons and property (SMMC §17.52.100(A)(4)); (2) a suitability analysis that clearly delineates Category 4 slopes, riparian areas, drainage areas, flood plains, vegetation types, prominent ridgelines, and archaeological and paleontological resources upon director’s request (SMMC §17.52.100(A)(5)); (3) diagrams and photos and, if requested by the director, installation of three-dimensional story poles that outline the walls, roofs, and other features that will determine the location, mass, and bulk of the proposed structures (SMMC §17.52.100(A)(7)); (4) if requested by the director, a three-dimensional scale model of the subject property and the area 150 feet outside the boundaries of the subject property (SMMC §17.52.100(A)(8)); and (5) if requested by the director, a site-specific archaeological, historic and paleontological report identifying all such resources on a project site, analyzing potential adverse impacts to such resources, and identifying effective mitigation measures to reduce potential adverse impacts (SMMC §17.52.100(A)(9)).  Michel Decl., ¶¶ 17-18, Ex. I. 

Any land divisions in the Hillside zone must result in a minimum lot width and depth of 150 feet each and lots that are a minimum of two acres.  Michel Decl., ¶¶ 17-18, Ex. I (SMMC §17.52.140(3)(b), (c), (f)).  Grading in connection from land divisions must also conform with minimum requirements.  Michel Decl., ¶¶ 17-18, Ex. I (SMMC §17.52.140(4)).

            b. Ordinance No. 1452

            In March and April 2022, the City adopted Ordinance No. 1452 to implement its own version of the Map Act and establish objective standards and regulations to govern the subdivision of parcels as authorized therein.  Michel Decl., ¶¶ 12-13, Ex. E (SMMC §16.18.010).  The Ordinance limits urban lot splits to parcels in R-1 One-Family Residential Zones, R-C Residential Canyon Zones, and Hillside Zones.  Michel Decl., ¶¶ 12-13, Ex. E (SMMC §16.18.020(A)).

            The urban lot split applicant’s parcel cannot (1) have been established through a prior urban lot split; or (2) be adjacent to another parcel subject to an urban lot split by either the applicant or another person acting in concert with the applicant.  Michel Decl., ¶¶ 12-13, Ex. E (SMMC §16.18.020(B)(1)-(2)).  The urban split cannot split more than one parcel or create more than two new parcels.  Michel Decl., ¶¶ 12-13, Ex. E (SMMC §16.18.050(C)(1)).  Both new parcels must have access to or adjoin the improved public right-of-way, and the subdivision shall not result in a new parcel with an average width less than that of the original parcel unless it would preclude the construction of two units on either of the resulting parcels or result in units less than 800 square feet.  Michel Decl., ¶¶ 12-13, Ex. E (SMMC §16.18.050(C)(3)-(4)).  The new parcels must also be of approximately equal lot area provided that one parcel is not smaller than 40 percent of the lot area of the original parcel.  Michel Decl., ¶¶ 12-13, Ex. E (SMMC §16.18.050(D)(1)). 

            Upon issuance of a parcel map by the Director, the applicant shall sign and record a covenant stating that (1) all resulting parcels will be for residential use (SMMC §16.18.070(A)(1)); (2) the applicant will occupy one of the housing units on the subdivided parcels as the occupant’s principal residence for at least three years from the date of the approval of the urban lot split (SMMC §16.18.070(A)(5)); and (3) neither the applicant, a successor in interest, nor any person acting in concert with them may apply for an urban lot split for an adjacent parcel (SMMC §16.18.070(A)(10)). 

            D. Statement of Facts

            1. Petitioner Neuhausen’s Evidence[3]

            a. The Property, the Meadows Project, and Measure HR

            The Property is a 45-acre site on the edge of the San Gabriel mountains.  Michel Decl., ¶10, Ex. C.  Mater Dolorosa uses 35 acres of the Property for a Center while the remaining 17 acres are undeveloped.  Michel Decl., ¶10, Ex. C; Pet. Ex. C. 

            The Meadows Project is a proposal to build up to 42 single-family detached residential units on the Property’s 17 undeveloped acres.  Michel Decl., ¶¶ 9-10, Exs. B-C.  The Meadows Project would rezone the Property from Institutional to Single-Family Residential.  Michel Decl., ¶9, Ex. B. 

On August 25, 2022, the City provided notice that it would conduct a September 15, 2022 public hearing on the Meadows Project.  Michel Decl., ¶9, Ex. B.  The draft Specific Plan is pending the City’s final review and approval.  Michel Decl., ¶10, Ex. C.  In response to questions, the Center announced that it intends to remain on the Property for decades to come and be the closest neighbor to the homes built on the Property.   Michel Decl., ¶11, Ex. D. 

In response to the Meadows Project, on January 25, 2022, three citizens submitted notice of intent to circulate a petition to change the zoning of the 45-acre Property from Institutional to Hillside.  Michel Decl., ¶8, Ex. A.  According to a zoning map attached to the report, all other large properties adjacent to the San Gabriel Mountains are zoned either Hillside or Open Space.  Ex. A.  As of May 13, 2022, the petition had 1,300 “sufficient” signatures and will be placed on the ballot for the November 8, 2022 election.  Michel Decl., ¶8, Ex. A.  The petition became Measure HR. 

b. The Terner Center Report

            In a report from July 2021, the Terner Center at the University of California at Berkeley (“Terner Center”) analyzed whether SB 9 would increase the supply of new homes.   Michel Decl., ¶14, Ex. F.  Terner Center noted that some single-family lots were too small or have other physical conditions that prevent changes to the existing homes, and that other homeowners may not want to pursue new development or find it financially infeasible.  Ex. F.

            The report concluded that, while it would enable development of more units on 410,000 single-family parcels (5.4% of all current single-family parcels), only 110,000 single-family parcels realistically could be developed where it had not previously been financially feasible to do so.  Ex. F.  For the majority of single-family properties, the most financially viable outcome would be not to pursue any development.  Michel Decl., ¶14, Ex. F.  The report further noted that owner occupancy requirements, which SB 9 permits jurisdictions to impose, will dramatically decrease the number of owners willing to apply to split the lot.  Ex. F. 

            c. The March 22, 2022 City Council Meeting

            During a City Council meeting on March 22, 2022, City Attorney Aleks Giragosian (“Giragosian”) explained that SB 9 sought to prevent private equity developers from purchasing multiple lots next to each other, splitting the lots, making a profit from the development that follows, and leaving.  Michel Decl., ¶¶ 2, 4.  SB 9 therefore only provides an “urban lot split” option to property owners that live in the units they want to split.  Michel Decl., ¶3.  The City Attorney further described the requirement that an owner live in one lot for three years as “intended to prevent private equity firms from coming in and dividing them up and selling them and leaving.”  Michel Decl., ¶4.

            d. The City Attorney’s 9212 Report

            On July 8, 2022, the City Attorney issued a Report on Measure HR Prepared Pursuant to Elections Code Section 9212 (“9212 Report”).  Pet., Ex. C.  The 9212 Report explained that Measure HR’s Hillside zoning would allow subdivision of the undeveloped 17 acres into eight lots.  Ex. C.  Because 10 of the 45 acres on the Property are too steep, the 35 acres of developable land on the Property could yield a maximum of 17 two-acre lots.  Ex. C.  In either scenario, the General Plan only allows one housing unit per parcel.  Pet. at Ex. C.

            SB 9, Accessory Dwelling Unit (“ADU”) law, and Junior Accessory Dwelling Unit (“JADU”) law all preempt local density limits and would allow development of two units on each lot.  Ex. C.  SB 9 allows subdivision of the Property’s 35 acres into 34 lots or the undeveloped 17 acres into 16 lots.  Ex. C.  Through either duplexes or some combination of single-family homes and ADUs or JADUs, this could lead to either 32 units on the undeveloped 17 acres or 68 units on the 35 acres.  Ex. C.

            The 9212 Report included a comparison of (1) the Meadows Project, both with and without an ADU and JADU on each parcel; (2) development of the undeveloped 17 acres by Hillside standards under Measure HR; (3) development of the undeveloped 17 acres under state-permitted maximum density; (4) development of all 35 developable acres by Hillside standards under Measure HR after demolition of the Center; and (5) development of all 35 developable acres under state-permitted maximum density after demolition of the Center.  Ex. C.  Of these scenarios, the Meadows Project with an ADU and JADU on each parcel would result in the most units, 126.  Ex. C.  The City Attorney did not analyze development of the Meadows Project under SB 9’s maximum density because he did not find that scenario economically feasible.  Ex. C.  While SB 9 would allow the subdivision of 42 parcels and development of two units on each of the 84 new parcels, it would entail the demolition of new homes and subdivision on a lot-by-lot basis, which would be unlikely because of construction costs.  Ex. C. 

            The City Attorney noted that the Meadows Project would allow the City Council and the Planning Commission to exercise discretion during review.  Ex. C.  Measure HR would reduce this discretion because the Housing Accountability Act constrains the City’s ability to deny a project when the proposal “complies with applicable, objective general plan, zoning, and subdivision standards and criteria[.]”  Ex. C. 

            e. The July 12, 2022 City Council Meeting

            The City Attorney presented the 9212 Report at a July 12, 2022 City Council meeting.  Michel Decl., ¶5.  A chart from the report showed that the maximum theoretical development potential of the Meadows Project was 126 units, assuming ADUs and JADUs on each of the Project’s 42 housing units.  Michel Decl., ¶5.  A more realistic estimate of the development was 1% of 3,800 housing units for a total of 38 units.  Michel Decl., ¶5.

            The chart also showed that zoning the 17 acres of the Meadows Project as Hillside would result in eight lots because each lot must be at least two acres.  Michel Decl., ¶6.  The City Attorney reiterated that SB 9’s urban lot split provision would allow homeowners to divide each lot in half to create 16 lots.  Michel Decl., ¶6.  Through either a combination of homes and ADUs or duplexes, this could result in two units per lot for a total of 32 units.  Michel Decl., ¶6. 

            Real Parties/Councilmembers Robert Parkhurst and Kelly Kreibs asked if a developer could take the 17 acres and perform the lot split before work on development starts, which would reduce the minimum area per parcel to one acre and create 16 lots from the start.  Michel Decl., ¶7.  The City Attorney confirmed that once the Planning Commission approved a tentative tract map with eight two-acre plots, the developer could go to the City and have it approve an urban lot split without asking the Planning Commission.  Michel Decl., ¶7.  When asked if the developer could use that to make plans for 32 housing units before construction begins, Giragosian replied that he was unsure if the SMMC permitted combining that many steps into one.  Michel Decl., ¶7.[4]

            f. The Argument Against

The Argument Against as currently set to appear on the November 8, 2022 General Election Ballot Pamphlet, authored by City Councilpersons Gene Goss and Rachelle Arizmendi, states that Measure HR is an ill-conceived initiative and a potential disaster for the City.  Pet. Ex. B.  “Do we want 6,500 square foot mansions smack dab in the middle of a residential neighborhood of three-to-four-bedroom single family homes? With the recent change in state law, SB 9, a developer could build as many as 68 units with limited design approval by the City.”  Ex. B.  The Argument Against asks voters whether that is the intended “look and character” of the Property.  Ex. B.

The Argument Against contended that Measure HR would bypass the General Plan and circumvent zoning recognized by the City Council and would restrict mater Dolorosa from modifying or changing the Center.  Ex. B.  It targets one private property owner and exposes the City to legal action.  The proponents of Measure HR might not have realized its consequences when they collected signatures for the petition.  Ex. B. 

g. The Rebuttal Argument Against

            On August 28, 2022, Real Parties Gene Goss, Rachelle Arizmendi, Edward Garcia, Kelly Kriebs, and Robert Parkhurst, the five members of the City Council, submitted the Rebuttal Argument Against to the City Clerk.  Michel Decl., ¶15, Ex. G.  The Rebuttal Argument Against asserts that Measure HR is misleading and misguided.  Ex. G.  While most property owners would prefer to leave the area as open space, Measure HR would not prevent private property owners from building.  Ex. G.  In fact, “developers can build immense “MANSION-sized homes that do not fit the [City’s] character, and then allow homeowners to split the lots, resulting in as many as 68 units.”  Ex. G.  This would not fit the Residential Zoning in the neighborhoods surrounding all sides of the Property any more than the hospitals and retirement facilities that the Property’s owner, Mater Dolorosa could, but chooses not to, build under the Property’s current zoning.  Ex. G.  Real Parties claim that Measure HR unfairly restricts the owner's private property rights.  Ex. G. 

            2. Respondent City Clerk’s and Real Parties’ Evidence

            Developer New Urban West, Inc., Sierra Madre (“NUWI”) and Mater Dolorosa first proposed the Meadows Project on the Center’s open space in 2020.  Giragosian Decl., ¶7, Ex. 9.  Mater Dolorosa therefore opposes Measure HR.  Giragosian Decl., ¶7, Ex. 9. 

            On March 14, 2022, the City Attorney drafted the agenda report and the City’s SB 9 Ordinance for for the March 22 City Council meeting.  Aguilar Decl., ¶3, Ex. 1; Giragosian Decl., ¶3.

            The Planning Commission held meetings for public comment on the Meadows Project on April 7, May 5, June 2, July 7, and August 4, 2022.  Giragosian Decl., ¶5, Exs. 4-8.  Public comments concerned the effect of the Meadows Project on the Property.  Giragosian Decl., ¶5, Exs. 4-8.  Petitioner Neuhausen spoke at all meetings except the April 7, 2022 meeting.  Giragosian Decl., ¶5, Exs. 5-8.

            On July 12, 2022, the City Attorney presented the 9212 Report at a City Council meeting.  Giragosian Decl., ¶6.         On August 12, 2022, the City Attorney submitted a Revised 9212 Report to the City Clerk for publication on the City website.  Giragosian Decl., ¶7, Ex. 9.  He prepared both reports in collaboration with City executive staff, including the Director of Planning.  Giragosian Decl., ¶8.

            The Revised 9212 Report explained that Measure HR’s rezoning of the Property to Hillside would increase the minimum lot size.  Giragosian Decl., ¶7, Ex. 9.  Measure HR would make the Meadows Project in its current form impossible because rezoning the Property alters the required lot size.  Giragosian Decl., ¶7, Ex. 9.

            If the Center were demolished, the 35 developable acres on the Property would yield 17 two-acre lots.  Giragosian Decl., ¶7, Ex. 9.  SB 9 would then permit subdivision into 34 lots.  Giragosian Decl., ¶7, Ex. 9.  Through either duplexes or some combination of single-family homes and ADUs or JADUs, this could lead to 68 units.  Giragosian Decl., ¶7, Ex. 9.  Alternatively, if only the vacant 17 acres were developed, it would result in eight initial two-acre lots, up to 16 subdivided lots, and up to 32 housing units.   Giragosian Decl., ¶7, Ex. 9. 

            On August 29, 2022, the City Clerk received rebuttals from both proponents and opponents of Measure HR that would appear on the ballot.  Aguilar Decl., ¶8, Exs. 2-3.  The Rebuttal Argument Against asserts that Measure HR empowers Property residents to block the Meadows Project.  Aguilar Decl., ¶8, Ex. 3.  The Rebuttal Argument Against contends that the City Council’s statement that Measure HR would allow a developer to build 68 units is a lie because only homeowners who agree to live in a home for three years can apply to have the lot on which it sits split; the City then has to approve the request.  Ex. 3.  “No developer can build 68 units with limited review.  Don’t be fooled.”  Ex. 3.  The City’s zoning ordinances also include significant protections and restrictions for Hillside zones.  Ex. 3. 

Measure HR makes zoning consistent because it changes the zoning of the Property to match other parcels abutting the mountains.  Ex. 3.  In doing so, it reflects the same values as the General Plan and Zoning Ordinances – preserving and protecting hillside lands, while allowing Mater Dolorosa to continue operation.    Aguilar Decl., ¶8, Ex. 3. 

E. Analysis

 Petitioner Neuhausen seeks to delete or amend the following statement in the Argument Against: “With the recent change in state law, SB 9, a developer could build as many as 68 units with limited design approval by the City.”  As Respondent City Clerk and Real Parties (collectively, “City Council”) argue (Opp. at 7), Petitioner must show that this statement is false or misleading by clear and convincing evidence.

1. The Statement is False

In determining whether statements are false, courts look to whether the challenged statement is subject to verifiability, as distinct from “typical hyperbole and opinionated comments common to political debate.”  Huntington Beach, supra, 94 Cal.App.4th at 1432.  An “outright falsehood” or a statement that is “objectively untrue” may be stricken.  Id.  The court will issue a writ of mandate when a petition contains undisputed, objective untruths calculated to mislead and misinform a reasonable voter.  San Francisco Forty-Niners v. Nishioka, supra 75 Cal.App.4th at 650.  Factual matters subject to dispute are not the type of untruths that may be deleted or edited by a court.  Id.

Petitioner argues that a developer cannot legally build 68 units on the Property.  Both SB 9 and the City’s own SB 9 Ordinance preclude a developer from doing so because a single owner cannot subdivide more than one adjacent parcel (Govt. Code §66411.7(a)(3)(G)) and the applicant must occupy the property to be subdivided (Govt. Code §664.11.7(g)(1)).  The SB Ordinance also requires an applicant to occupy one of the housing units on the subdivided property as the occupant’s principal residence for at least three years.  SMMC §16.18.070.A(5),(10).  A commercial developer simply cannot satisfy this requirement.    Mot. at 11-12.

The City Council knew this was the case.  The City Attorney informed the City Council that SB 9 is really for property owners who live in their units and the Legislature wanted to prevent private entity developers from purchasing a bunch of lots next to each other and splitting them to achieve a big profit on the development.  The City Attorney explained that the requirement that the applicant live in one lot for three years is intended to prevent private equity firms from dividing lots, selling them, and leaving.  Michel Decl., ¶¶ 2, 4.  Petitioner argues that, despite their knowledge that SB 9 categorically prevents “a developer” from subdividing property in this way, the City Council authorized the Argument Against statement that a developer could build as many as 68 units, which is categorically false.  Mot. at 12.

The City Council notes that Merriam-Webster’s online dictionary defines the term “developer” as “a person who develops real estate”, and that it encompasses both commercial developers and homeowners who add on to their home.  The City Council acknowledges that the statement’s reference to “a developer” is perhaps imprecise because it could refer to one or more developers.  But the reference does not mean only commercial developers as Petitioner suggests.  Opp. at 11.

The City Council further notes that the statement is made in the context of an argument about the type of homes (6500 square foot mansions) and the number of units (68) permitted by Measure HR, and that this would be outside the “look and character” of the City.  The City Council argues that these threats to the character of the City may be made by any developer, not just a commercial developer.  The development may not occur immediately, but it could happen over the years as lots are sold and resold the prospect of SB 9 development increases.  The voters should receive this relevant information and the number of developers involved is not significant.  Opp. at 12.

The statement is not just imprecise, it is false.  No matter whether a commercial entity or an individual, no single person could develop the Property’s 35 acres into 68 units.  Neither SB 9 nor the City’s SB 9 Ordinance would permit it.  Yet, the statement’s plain meaning is that a single developer could build up to 68 units on the Property.  The use of the word “build” associated with “a developer” is significant.  The statement implies that a developer could build 68 units not over decades but rather in a single project of 68 units on 34 lots.  That is simply not true.  The point of the statement, of course, is to suggest that the Meadows Project’s more limited development of 42 single-family detached residential units on the Property’s 17 undeveloped acres is vastly preferable.

Petitioner has shown by clear and convincing evidence that the statement is false by referring to a developer’s ability to build 68 units on the Property.[5]

2. The Statement is Not Misleading in Its Reference to a Maximum of 68 Units

The courts distinguish between fact and opinion in determining whether a statement is false.  “Almost all, if not all, statements concerning the effect or application of an initiative can only be the opinion of the interpreter, and the voting public is generally aware of this.”  Chavez, supra, 84 Cal. App. 3d at 82 (emphasis in original).  Opinion statements concerning the potential benefit or harm from an initiative measure are not subject to proof of their truth or falsity.  Mandicino v. Maggard, supra 210 Cal. App. 3d at 1420.  Context may show that a statement that in one sense can be said to be literally true is still materially misleading.  Huntington Beach, supra, 94 Cal.App.4th at 1432. 

            Petitioner argues that the statement is misleading.  Measure HR is a response to the Meadows Project.  The Argument Against presents Measure HR as inviting 6500 square foot mansions in residential neighborhoods of three or four bedroom homes with a developer building as many as 68 units with limited design approval by the City. 

Petitioner suggests that the voters will be misled because Meadows Project concerns only the development of 17 acres on the Property and they will assume that the City Council is contending that 68 units can be built on those 17 acres.  Yet, the City Attorney analyzed six different scenarios and most of them have a lower unit count than the Meadows Project.  Mot. at 14.

Importantly, the City Council’s 68-unit figure is based on a number of improbable assumptions: (1) Mater Delorosa decides to demolish the Center, making all 35 acres available for development, despite its public assurance that it looks forward to continuing events at the Center for the decades to come (Michel Decl., Ex. D); (2) the entire 35 acres would be subdivided; (3) each lot would have to be developed by its owner with a house and an ADU; and (4) all 17 homeowners would have to occupy one of the homes as a primary residence for three years.   Petitioner describes this chain of events as highly unlikely, thereby misleading voters.  Mot. at 16.

The Terner Center’s analysis of SB 9 also supports the conclusion that it is unlikely that every lot on the Property would be split.  Some owners will have no interest in splitting their lot and others will find it financially infeasible.  Michel Decl., Ex. F.  The City Council also was advised that fewer than 1% of homes in the City have ADUs.  The City Attorney even refused to consider the application of a SB 9 lot split to the Meadows Project because it would not be economically feasible to build the new homes only to demolish them in favor of lot splitting.  Therefore, the Argument Against’s reference to “as many as 68 units” on the Property without any qualification makes the statement materially misleading.  Mot. at 15. 

Additionally, a developer cannot construct these units with “limited design review.”  By designating the Property as Hillside, strict development standards would exist for development, including flood plan suitability analysis, and site specific archeological, historic and paleontological reports, and grading requirements.  Even the application of only objective standards in the Hillside Management Ordinance would require significant City oversight.  Mot. at 16.

Petitioner concludes that voters are being asked to weigh Measure HR against the Meadows Project and are entitled to accurate information.  The Argument Against statement materially misleads voters by suggesting that Measure HR will result in a large scale 68-unit development by a developer without meaningful review.  Mot. at 16.

Leaving aside the falsity discussed ante, clear and convincing evidence does not show the statement to be misleading.  The City Council points out (Opp. at 8-9) that the statement is a projection of the worst-case scenario.  In their Argument Against, Real Parties chose not to speculate on how many units would actually be developed, only stating that “as many as 68 units” can be developed.  Real Parties were not required to refer to a speculative “likely” number and could instead refer to a legal maximum.  Petitioner acknowledges that the 68-unit number is the legally permitted maximum development for the Property’s 35 acres and her focus on economic probability rather than legal maximum does not make the statement misleading. 

While its position may be based on a chain of events that Petitioner considers improbable, the City Council argues that Petitioner’s claim also rests on an assumption that Mater Dolorosa will maintain the Center in the future.  For this conclusion, Petitioner relies on statements made by Mater Dolorosa in support of the Meadows Project and not in the face of Measure HR.  The City Council correctly concludes that Petitioner cannot predict what Mater Dolorosa will do if Measure HR passes, the Property is rezoned, and the Meadows Project which Mater Dolorosa supports is terminated.  Opp. at 10.

Nor does the Argument Against’s discussion of 68 units draw a misleading comparison to the Meadows Project’s smaller 17-acre footprint as Petitioner contends.  The Argument Against does not expressly refer to the Meadows Project.  Nor is Measure HR is limited to the 17 acres of the Meadow Project; it applies to all 38 acres owned by Mater Dolorosa, 35 acres of which can be developed with a legally permissible maximum density of 68 units. 

Apart from its falsity in referring to a single developer, the statement has not been shown by clear and convincing evidence to be misleading by referring to the maximum legally permissible development of units on the Property.

F. Conclusion

The Petition is granted in part.  The Argument Against’s statement: “With the recent change in state law, SB 9, a developer could build as many as 68 units with limited design approval by the City” is false in that no single developer could build 68 units.  Apart from this falsity, the statement is not misleading in that it is undisputed that 68 units legally could be built on the 35-acres of developable Property and the statement expressly refers to this legal maximum.

The City Council argues that Petitioner’s proposed remedy of an amendment that refers to 34 units on 17-acres is not proper.  Any remedy must address the purpose of the statement, which is to inform voters that a maximum of 68 units could be built.  Opp. at 15-16.

The court agrees.  A writ shall issue directing Respondents to modify the statement to read as follows: “With the recent change in state law, SB 9, as many as 68 units ultimately could be built with limited design approval by the City”.