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Nielsen Merksamer Wins Lawsuit to Invalidate Anti-Development Referendum in Town of Moraga

On October 16, 2015, Contra Costa Superior Court Judge Barry Goode ruled that a referendum aimed at blocking a 36-unit in-fill development project in central Moraga is invalid on two grounds and therefore may not proceed to the ballot.

The Town of Moraga had previously determined that the target of the referendum, the Town Center Homes Project, was consistent with the Moraga Center Specific Plan, which was adopted in 2010, but needed a conforming zoning change in order to proceed.  After a years-long planning process, the Town Council adopted the required zone change in May of this year.

A local group opposed to the project, however, circulated and submitted a referendum petition seeking to repeal the zoning change and stop the development.  Upon finding that referendum proponents obtained a sufficient number of signatures to qualify for the ballot, the Town Clerk certified the sufficiency of the referendum petition to the Town Council, which triggered the suspension of the ordinance and required the Council to consider whether to rescind the ordinance or call an election of the Town’s voters on the matter.

Nielsen Merksamer therefore quickly filed suit on behalf of the Town Center Homes Project developer and property owner to block the Council’s anticipated action.  The suit alleged that the referendum was illegal because the petition failed to include the full text of the ordinance in violation of the California Elections Code—including the omission of project-related documents that had been expressly incorporated by reference in the ordinance—and because it sought to enact zoning on the property that would be inconsistent with the underlying Specific Plan and General Plan, in violation of state planning law.  The court ruled in favor of Nielsen Merksamer’s clients on both counts, issuing a writ of mandate prohibiting the Town from the proceeding with the unlawful referendum.

Contact Sean Welch for more information.