City of Morgan Hill v. Bushey

• Decision Date: 30 May 2017
• Docket Number: No. H043426,H043426
• Citation: 12 Cal.App.5th 34,218 Cal.Rptr.3d 276
• Court: California Court of Appeals Court of Appeals
• Parties: CITY OF MORGAN HILL, Plaintiff and Respondent, v. Shannon BUSHEY, as Registrar, etc., et al., Defendants and Respondents; River Park Hospitality, Real Party in Interest and Respondent; Morgan Hill Hotel Coalition, Real Party in Interest and Appellant.

12 Cal.App.5th 34

218 Cal.Rptr.3d 276

CITY OF MORGAN HILL, Plaintiff and Respondent,

v. Shannon BUSHEY, as Registrar, etc., et al., Defendants and Respondents;River Park Hospitality, Real Party in Interest and Respondent;Morgan Hill Hotel Coalition, Real Party in Interest and Appellant.

No. H043426

Court of Appeal, Sixth District, California.

Filed May 30, 2017

Attorneys for Plaintiff and Respondent, City of Morgan Hill: Katherine A. Alberts, Louis A. Leone, Walnut Creek, Ionan Mondescu, Leone & Alberts, Donald Alan Larkin, Office of the City Attorney

Attorneys for Defendant and Respondent, Shannon Bushey, as Registrar of Voters, etc.: James R. Williams, County Counsel, Steve Mitra, Assistant County Counsel, Danielle Luce Goldstein, Deputy County Counsel

Attorney for Defendant and Respondent, Irma Torrez, as City Clerk, etc.: Scott D. Pinsky, Law Offices of Gary M. Baum

Attorneys for Real Party in Interest and Respondent, River Park Hospitality: Jolie Houston, Thomas P. Murphy, Berliner Cohen, LLP, San Jose

Attorneys for Real Party in Interest and Appellant, Morgan Hill Hotel Coalition: Asit S. Panwala, Law Office of Asit Panwala, San Francisco, Jonathan Randall Toch, J. Randall Toch, Attorney at Law

Mihara, J.Appellant Morgan Hill Hotel Coalition (Coalition) appeals from the superior court's order granting a mandate petition brought by respondent City of Morgan Hill (City) and removing from the June 2016 ballot Coalition's referendum challenging City's ordinance changing the zoning for a parcel owned by respondent River Park Hospitality (River Park). Although Coalition's referendum had properly qualified for placement on the ballot, City claimed that the referendum was invalid because, if the electorate rejected the ordinance, it would create an inconsistency between the zoning for the parcel and the general plan's land use designation for the parcel. On appeal, Coalition contends that a referendum that seeks to prevent a zoning change from taking effect does not create an inconsistency with a general plan's land use designation but merely maintains the preexisting status quo. The superior court relied on deBottari v. City Council (1985) 171 Cal.App.3d 1204, 217 Cal.Rptr. 790 (deBottari ) in rejecting Coalition's position. We disagree with deBottari and hold that a referendum petition challenging an ordinance that attempts to make the zoning for a parcel consistent with the parcel's general plan land use designation is not invalid if the legislative body remains free to select another consistent zoning for the parcel should the referendum result in the rejection of the legislative body's first choice of consistent zoning.

I. Background

This case concerns a vacant parcel at 850 Lightpost Parkway in Morgan Hill owned by River Park. The land use designation for this parcel in City's general plan was "Industrial" until November 2014. In November 2014, City amended its general plan to change the land use designation for this parcel to "Commercial."¹ The parcel's zoning was "ML–Light Industrial" before the November 2014 general plan amendment and remained unchanged after the general plan amendment.

In April 2015, City's city council approved Ordinance no. 2131 (O–2131). O–2131 would have changed the parcel's zoning from ML–Light Industrial to "CG–General Commercial." The "General Commercial" zoning would have permitted a hotel on the parcel. "General Commercial" is just one of a number of commercial zoning districts in City. On May 1, 2015, Coalition submitted a timely referendum petition challenging O–2131. The stated purpose of the referendum was to prevent the development of a hotel on the parcel. On May 20, 2015, City adopted a resolution accepting a certificate of sufficiency as to the referendum. In July 2015, City "discontinue[d] processing" the referendum because City believed that the referendum "would enact zoning that was inconsistent with" City's general plan. City nevertheless recognized that it could change the parcel's zoning to "Highway Commercial" rather than "General Commercial" and be consistent with the general plan's "Commercial" land use designation for the parcel.

In February 2016, City reconsidered its position. It passed a resolution calling for a June 2016 special election to submit the referendum to the voters. At the same time, it authorized the filing of an action to have the referendum "nullified as legally invalid and removed from the ballot." City filed this action in March 2016 seeking to remove the referendum from the June 2016 ballot.

On March 29, 2016, the superior court, relying on deBottari , granted City's petition. It found that City had established the "invalidity" of the referendum by showing that "the current zoning in question is inconsistent with the City's General Plan—and therefore presumptively invalid." The court ordered that the referendum be removed from the ballot and that O–2131 be certified "as duly adopted and effective immediately...." Coalition timely filed a notice of appeal on April 1, 2016.²

II. Analysis

The parties agree that we exercise de novo review because the facts are undisputed and the only issue is one of law.

"The referendum is the power of the electors to approve or reject statutes or parts of statutes except urgency statutes, statutes calling elections, and statutes providing for tax levies or appropriations for usual current expenses of the State." (Cal. Const., art. II, § 9.) "The referendum process allows the voters to veto statutes and ordinances enacted by their elected legislative bodies before those laws become effective. [Citation.] Referenda do not enact law and may not address certain subjects. In contrast, the electorate may legislate on any subject by initiative." (Referendum Committee v. City of Hermosa Beach (1986) 184 Cal.App.3d 152, 157–158, 229 Cal.Rptr. 51.) If a referendum petition challenging an ordinance is timely filed and certified to be sufficient, "the effective date of the ordinance shall be suspended and the legislative body shall reconsider the ordinance." (Elec. Code, § 9237.) "If the legislative body does not entirely repeal the ordinance against which the petition is filed, the legislative body shall submit the ordinance to the voters.... The ordinance shall not become effective until a majority of the voters voting on the ordinance vote in favor of it. If the legislative body repeals the ordinance or submits the ordinance to the voters, and a majority of the voters voting on the ordinance do not vote in favor of it, the ordinance shall not again be enacted by the legislative body for a period of one year after the date of its repeal by the legislative body or disapproval by the voters." (Elec. Code, § 9241 ; see Rossi v. Brown (1995) 9 Cal.4th 688, 697, 38 Cal.Rptr.2d 363, 889 P.2d 557.)

"[T]he rezoning of land is a legislative act [citation] subject to referendum [citation]." (Yost v. Thomas (1984) 36 Cal.3d 561, 570, 205 Cal.Rptr. 801, 685 P.2d 1152.) "A zoning ordinance shall be consistent with a city or county general plan...." (Gov. Code, § 65860, subd. (a).)³ "A zoning ordinance that conflicts with a general plan is invalid at the time it is passed." (Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, 544, 277 Cal.Rptr. 1, 802 P.2d 317 ( Le sher ).) However, "[i]n the event that a zoning ordinance becomes inconsistent with a general plan by reason of amendment to the plan, or to any element of the plan, the zoning ordinance shall be amended within a reasonable time so that it is consistent with the general plan as amended." (§ 65860, subd. (c).) "The obvious purpose of subdivision (c) is to ensure an orderly process of bringing the regulatory law into conformity with a new or amended general plan...." (Lesher , at p. 546, 277 Cal.Rptr. 1, 802 P.2d 317.)

In this case, City's ML–Light Industrial zoning for the parcel did not automatically become invalid in November 2014 because that zoning was consistent with City's general plan prior to the general plan amendment. Instead, City had "a reasonable time" under section 65860, subdivision (c) to amend the zoning of the parcel to make it consistent with the general plan. O–2131 was City's attempt to do so. The question before us is whether the voters could validly utilize the power of referendum to reject City's chosen method of making the parcel's zoning consistent with the general plan.

"[T]he local electorate's right to initiative and referendum is guaranteed by the California Constitution ... and is generally co-extensive with the legislative power of the local governing body.... [¶] ... [However,] the initiative and referendum power [cannot] be used in areas in which the local legislative body's discretion [is] largely preempted by statutory mandate." (DeVita v. County of Napa (1995) 9 Cal.4th 763, 775–776, 38 Cal.Rptr.2d 699, 889 P.2d 1019.)

City claims that the electorate's referendum power cannot be used to reject O–2131, because City's discretion with respect to the zoning of the parcel was preempted by section 65860's mandate that the parcel's zoning be consistent with City's general plan. The problem with this argument is that section 65860 did not require City to adopt O–2131. It preempted City from enacting a new zoning that was inconsistent with the general plan, but it did not preclude City from exercising its discretion to select one of a variety of zoning districts for the parcel that would be consistent with the general plan. Since City retained this discretion, section 65860 did not preclude the electorate from exercising its referendum power to reject City's choice of zoning district in O–2131.

City puts misplaced reliance on cases concerning the initiative power. (Mission Springs Water District v. Verjil (2013) 218 Cal.App.4th 892, 919, 160 Cal.Rptr.3d 524 [initiative]; Lesher , supra , 52 Cal.3d at p. 541, 277 Cal.Rptr. 1, 802 P.2d 317 [initiative]; Legislature v. Eu (1991) 54 Cal.3d 492, 286 Cal.Rptr. 283, 816 P.2d 1309 [initiativ...