SB 359: Lowers referendum barriers: More time and streamlined process for referendum proponents

In October, Gov. Gavin Newsom signed SB 359, Sen. John Moorlach's "fair referendum practice bill" into law as part of a series of elections bills aimed at increasing civic engagement. It allows project opponents to use a summary of an ordinance for purposes of collecting signatures for a referendum petition, as opposed to the entire ordinance text. According to the SB 359 Fact Sheet released by Moorlach's office, the bill stems from an approximately 1,000-page referendum petition of the 2017 Museum House condo project in Newport Beach. In that case, opponents argued that carrying the entire ordinance text with them to gather signatures was an unfair burden.

SB 359 changed previous elections law, which required a referendum petition to contain the entire text of the ordinance, or the portion of the ordinance that a petitioner is seeking to overturn. As of Jan. 1, a project opponent instead can circulate a referendum petition including a 5,000 or fewer word summary of the ordinance. The 5,000-word limit includes any attachments, exhibits, and supplements.

SB 359 allows the referendum proponents to draft the summary of the ordinance they are attempting to overturn, but requires it to be impartial. The city attorney may edit the proponents' summary, but must do so within 10 business days. Otherwise, the summary is considered automatically approved.

Under SB 359, the following procedures must be completed in order for a summary to qualify for use in a referendum petition:

• A proponent must file a copy of the summary with the local elections official within three business days of final passage of the ordinance. The summary must include a link to a public website containing the entire ordinance or portion of the ordinance that is the subject of the referendum.

• The local elections official must immediately transmit a copy of the proposed summary to the city attorney.

• The city attorney must approve or edit the summary within 10 business days. If the city attorney edits the summary, the edits must be true and impartial and cannot contain argument.

• If the city attorney fails to issue an approved or edited summary within 10 business days, the proponent's summary is automatically considered approved.

Currently, proponents have 30 days from the date an adopted ordinance is attested by the city clerk to circulate a referendum petition. Under SB 359, proponents have 30 days to submit a petition with the required number of signatures to the local elections official from the date the summary is approved, meaning proponents will now have up to an additional 13 days before the 30 day referendum clock starts.

Morgan Gallagher is a land use attorney at Cox, Castle & Nicholson, specializing in securing development approvals for controversial and complex real estate projects and defending project approvals from legal challenges.