City of Morgan Hill v. Bushey, S243042

• Decision Date: 23 August 2018
• Docket Number: S243042
• Citation: 5 Cal.5th 1068,236 Cal.Rptr.3d 835,423 P.3d 960
• Parties: CITY OF MORGAN HILL, Plaintiff and Respondent, v. Shannon BUSHEY, as Registrar of Voters, etc., et al., Defendants and Respondents; River Park Hospitality, Inc., Real Party in Interest and Respondent; Morgan Hill Hotel Coalition, Real Party in Interest and Appellant.
• Court: California Supreme Court

5 Cal.5th 1068

423 P.3d 960

236 Cal.Rptr.3d 835

CITY OF MORGAN HILL, Plaintiff and Respondent,

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

S243042

Supreme Court of California.

Filed August 23, 2018

Law Office of Asit Panwala, Asit S. Panwala, San Francisco; Toch Law Firm and J. Randall Toch, Morgan Hill, for Real Party in Interest and Appellant.

Donald Alan Larkin, City Attorney; Leone & Alberts, Katherine A. Alberts, Louis A. Leone and Ioana Mondescu, Walnut Creek, for Plaintiff and Respondent.

Burke, Williams & Sorensen and Thomas B. Brown, Oakland, for League of California Cities as Amicus Curiae on behalf of Plaintiff and Respondent.

Orry B. Korb and James R. Williams, County Counsel, Steve Mitra, Assistant County Counsel, and Danielle Luce Goldstein, Deputy County Counsel, for Defendant and Respondent Shannon Bushey, as Registrar of Voters for Santa Clara County.

Law Offices of Gary M. Baum and Scott D. Pinsky, Long Beach, for Defendant and Respondent Irma Torrez, as City Clerk for City of Morgan Hill.

Berliner Cohen, Jolie Houston and Thomas P. Murphy, San Jose, for Real Party in Interest and Respondent.

CUÉLLAR, J.

This case is about how to reconcile state land use law with the people’s referendum power. To promote public deliberation and reasoned decisions about land use, state law requires cities and counties to develop general land use plans that function as charters for all future land use in that county or city. Government Code section 65860, subdivision (a)¹ requires zoning ordinances to "be consistent with the general plan of the county or city." This provision renders invalid any change to the zoning ordinance that would make it inconsistent with the general plan, whether the change is made by a local government or a local initiative. ( Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, 544, 277 Cal.Rptr. 1, 802 P.2d 317 ( Lesher ).) But local residents can use the power of initiative or referendum guaranteed to them by the California Constitution for a range of functions relevant to land use, including to alter the general plan for their municipality. ( DeVita v. County of Napa (1995) 9 Cal.4th 763, 777-784, 38 Cal.Rptr.2d 699, 889 P.2d 1019 ( DeVita ).) When the general plan is amended without also changing the corresponding zoning ordinance, the county or city must amend the zoning ordinance within a "reasonable time" to make it consistent with the general plan. ( § 65860, subd. (c).) The question we must resolve is whether the people of a county or city may challenge by referendum a zoning ordinance amendment that would bring the ordinance into compliance with a change to the county’s or city’s general plan, even though such a referendum would temporarily leave in place a zoning ordinance that does not comply with the general plan.

What we conclude is that the people of a county or city can challenge such a zoning ordinance by referendum, at least where the local government has other means available to make the zoning ordinance and general plan consistent. Section 65860, subdivision (c) contemplates some temporary inconsistency between the zoning ordinance and the general plan for a "reasonable time" when the general plan is modified. A referendum simply keeps that inconsistency in place for a certain time—until the local government can make the zoning ordinance and general plan consistent in a manner acceptable to a majority of voters. The Court of Appeal correctly held that a referendum can invalidate a zoning ordinance amendment approved by a local jurisdiction to achieve compliance with a general plan amendment, where other general-plan-compliant zoning designations are available that would be consistent with a successful referendum. In such a case, the local jurisdiction would likely be able to change the zoning ordinance to comply with the general plan and the referendum within a reasonable time.

But in this case, it is not clear whether the city can use other available zoning designations for the disputed property that would be consistent with the general plan and a successful referendum. If no current zoning designations consistent with the general plan are available for the local jurisdiction to comply with a successful referendum, the referendum is still valid if the local jurisdiction can create new zoning designations that attain such consistency. And the local jurisdiction may have other means to achieve consistency between the zoning ordinance and general plan after a referendum—such as by altering the general plan—that would prevent the removal of the referendum from the ballot. So we vacate the judgment of the Court of Appeal and direct it to remand the case to the trial court so it can address these issues.

I.

In November 2014, Plaintiff and Respondent City of Morgan Hill (the "City") amended its general plan. The City did so to change the land use designation of a vacant lot located at 850 Lightpost Parkway (the "property") from "Industrial" to "Commercial." Real Party in Interest River Park Hospitality, Inc. ("River Park") owns the property. River Park’s stated purpose in rezoning the property was to develop a hotel. The specific zoning designation of the property—"ML-Light Industrial"—remained unchanged by the alteration to the general plan.

In April 2015, after public hearings on amending the zoning ordinance, the City’s city council approved the zoning ordinance. This ordinance sought to change the parcel’s zoning designation to "CG-General Commercial." According to the parties, this is one of twelve potential commercial zoning designations in Morgan Hill. On May 1, 2015, Real Party in Interest Morgan Hill Hotel Coalition ("Hotel Coalition")—supported by over 4,000 signatures—petitioned for a referendum challenging the ordinance. The City Clerk issued a certificate of examination and sufficiency for the referendum on May 15, 2015, and five days later, the city council enacted a resolution accepting the certificate.

But in July 2015, the city council directed the City Clerk to discontinue processing the referendum because it "would enact zoning that was inconsistent with" the City’s general plan. On January 13, 2016, in reaction to the discontinuance of the referendum, Hotel Coalition filed a petition for writ of mandate (in a different suit than the one at issue here) seeking to force a repeal of the City’s zoning ordinance, or a vote on the referendum. That case was still pending when the trial court made its decision in the instant case, after which the parties settled the January 13, 2016, case.

Shortly thereafter, on February 17, 2016, the city council reviewed reports on alternatives for the property. Hotel Coalition suggested the City change the zoning designation to one that is consistent with the general plan and does not permit hotel use, or that it alter the general plan.

On March 2, 2016, the city council again placed the referendum on the ballot in a special municipal election scheduled for June 7, 2016. At the same time, the city council authorized legal action to remove the referendum from the ballot. A few weeks later, the City filed suit against Shannon Bushey, the Registrar of Voters for Santa Clara County, and Irma Torrez, the City Clerk for Morgan Hill, for an alternative and peremptory writ and declaratory relief to remove the referendum from the ballot and certify the zoning ordinance. On March 29, 2016, the trial court ordered the referendum removed from the ballot. In reaching its conclusion, the trial court relied on deBottari v. City of Norco (1985) 171 Cal.App.3d 1204, 1212, 217 Cal.Rptr. 790 (deBottari )—which held that such a referendum would "enact" an invalid zoning ordinance that is inconsistent with the general plan. Hotel Coalition promptly appealed.

The Court of Appeal reversed the trial court. ( City of Morgan Hill v. Bushey (2017) 12 Cal.App.5th 34, 43, 218 Cal.Rptr.3d 276( City of Morgan Hill ).) It expressly disagreed with deBottari ’s holding that referendums are always invalid if they reject a zoning ordinance enacted by the local government to bring a property’s zoning into compliance with the jurisdiction’s general plan. ( Ibid. ) In cases where multiple available zoning designations could comply with the general plan, the Court of Appeal below held that a referendum rejecting the zoning change was acceptable because the City could adopt another zoning designation that would be consistent with the general plan within a "reasonable time." ( City of Morgan Hill , at p. 43, 218 Cal.Rptr.3d 276, quoting § 65860, subd. (c).) We granted review to determine whether the people can bring a referendum to challenge an amendment to a property’s zoning where a prior general plan amendment rendered the property’s zoning inconsistent with the general plan and the challenged zoning amendment seeks to make the property’s zoning consistent with the amended general plan.

II.

California’s legislative power is vested in its Legislature. But the people have "reserve[d] to themselves the powers of initiative and referendum." ( Cal. Const., art. IV, § 1.) The referendum power allows the public to approve or reject statutes or parts of statutes. (Id. , art. II, § 9, subd. (a).) This power "may be exercised by the electors of each city or county under procedures that the Legislature shall provide," thereby granting to these electors the power to approve or reject local ordinances. (Id. , § 11, subd. (a).) Our duty is to " ‘jealously guard’ " the referendum and initiative powers, and to liberally construe those powers so that they " ‘be not improperly annulled.’ " ( Associated Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, 591, 135 Cal.Rptr. 41, 557 P.2d 473 ; see also California Cannabis Coalition v. City of Upland (2017) 3 Cal.5th 924, 936, 222...