City of Morgan Hill v. Bushey
H043426
Cal. Ct. App.May 30, 2017Background
- Parcel at 850 Lightpost Parkway in Morgan Hill was rezoned by the City’s 2014 general plan amendment from Industrial to Commercial; zoning remained ML‑Light Industrial pending a conforming rezoning.
- In April 2015 the City adopted Ordinance O‑2131 to rezone the parcel to CG‑General Commercial (which would permit a hotel); Coalition timely qualified a referendum to prevent O‑2131 from taking effect.
- The City initially declined to process the referendum claiming that a successful referendum would leave the parcel zoned inconsistently with the general plan, but later sought a court order to remove the referendum from the June 2016 ballot.
- The Santa Clara County Superior Court, relying on deBottari, granted the City’s petition and ordered the referendum removed and O‑2131 certified as effective; Coalition appealed.
- The Court of Appeal reviewed de novo and addressed whether Government Code § 65860 (requirement that zoning be consistent with general plan) precludes use of the referendum to reject a legislative rezoning that was intended to make zoning consistent with a recent general plan amendment.
Issues
| Issue | Plaintiff's Argument (City) | Defendant's Argument (Coalition) | Held |
|---|---|---|---|
| Whether § 65860 precludes submission of a referendum that would reject a rezoning enacted to make zoning consistent with a recent general plan amendment | § 65860 requires consistency; repealing the rezoning via referendum would reinstate zoning inconsistent with the general plan, so referendum is invalid | A referendum merely preserves the preexisting status quo and does not “enact” invalid zoning; City retained discretion to choose among multiple consistent zonings, so referendum is permissible | The referendum was valid; § 65860 does not bar referendum where the legislative body can select an alternative consistent zoning if voters reject its chosen rezoning |
| Whether deBottari controls to prohibit submission of such a referendum | deBottari shows the referendum would effectively reinstate an invalid zoning and thus may be refused | deBottari is distinguishable/incorrect because it treats referendum as enacting law; referendum only suspends the ordinance and preserves the prior code | Court rejects deBottari’s reasoning and declines to follow it; deBottari is flawed insofar as it treats referendum as enacting invalid zoning |
| Whether the City’s discretionary power was preempted such that electorate couldn’t use referendum | City argues discretion was preempted by mandatory consistency requirement | Coalition argues City retained discretion to choose among consistent zoning options, so referendum power remains | Held that City retained discretion; § 65860 preempts inconsistent enactments but does not forbid rejecting one of several consistent zoning choices via referendum |
| Whether the referendum, if successful, would impermissibly force enactment of an invalid zoning | City contends a successful referendum would leave only the inconsistent preexisting zoning in place | Coalition contends referendum would simply maintain preexisting (temporarily inconsistent) zoning and the City could adopt another consistent zoning later | Court held referendum merely preserves status quo and does not ‘‘enact’’ invalid zoning; City could choose another consistent zoning later |
Key Cases Cited
- deBottari v. City Council, 171 Cal.App.3d 1204 (Court of Appeal 1985) (rejected by this opinion; had held referendum improper where repeal would leave zoning inconsistent with amended general plan)
- Lesher Communications, Inc. v. City of Walnut Creek, 52 Cal.3d 531 (California Supreme Court 1990) (zoning conflicting with a general plan is invalid; § 65860(c) allows reasonable time to amend zoning after plan changes)
- Yost v. Thomas, 36 Cal.3d 561 (California Supreme Court 1984) (rezoning is a legislative act subject to referendum)
- Assembly v. Deukmejian, 30 Cal.3d 638 (California Supreme Court 1982) (subsequent measures may be valid if essentially different and not enacted in bad faith to evade referendum)