5 Cal. 5th 1068
Cal.2018Background
- In Nov. 2014 Morgan Hill amended its general plan to re-designate a parcel (850 Lightpost Pkwy) from Industrial to Commercial; zoning remained ML‑Light Industrial.
- In Apr. 2015 the city council approved a zoning amendment to CG‑General Commercial to conform the parcel to the amended general plan; Hotel Coalition filed a referendum petition and the clerk certified it.
- The city initially stopped processing the referendum, then placed it on the ballot while simultaneously seeking judicial relief to remove it; the trial court ordered removal relying on deBottari.
- The Court of Appeal reversed, holding a referendum may challenge a zoning amendment enacted to conform zoning to a changed general plan when alternative compliant zoning options exist.
- The Supreme Court held that referendums can, in some circumstances, validly challenge such zoning amendments (protecting the referendum power) but remanded for factual determination whether Morgan Hill had available zoning options or other means to achieve consistency within a "reasonable time."
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| May voters use referendum to block a zoning ordinance enacted to conform zoning to an amended general plan? | City: No; referendum would effectively "enact" an invalid zoning ordinance contrary to §65860(a). | Hotel Coalition: Yes; referendum merely suspends the amendment and preserves referendum power; §65860(c) permits temporary inconsistency. | Voters may challenge such zoning amendments by referendum, at least where alternative compliant zoning or other means exist to achieve consistency within a reasonable time. |
| Does §65860(c) preempt referendums by requiring immediate conformity between zoning and general plan? | City: Subdivision (c) contemplates prompt amendment; referendum would frustrate the statute's purpose. | Hotel Coalition: Subdivision (c) contemplates a "reasonable time" and does not clearly show legislative intent to preclude referendums. | §65860(c)’s "reasonable time" allows temporary inconsistency; no clear legislative intent to preempt referendum power. |
| Is the specific Morgan Hill referendum invalid because no alternative commercial zoning (that also complies with the referendum) is available, triggering Elections Code §9241 delay? | City: Yes; if no compliant alternative exists, a successful referendum would prevent any compliant re‑zoning and run into the one‑year bar. | Hotel Coalition: Insufficient showing that no alternatives or remedial means exist; City failed to prove impossibility. | Remanded: trial court must determine whether viable alternative zoning or other means (including creating new zones or amending the general plan) exist so consistency can be achieved within a reasonable time. |
| Should deBottari’s rule (referendum invalid if it would leave an invalid zoning in place) control? | City: deBottari supports removal of referendum. | Hotel Coalition: deBottari misreads why ordinances are invalid ab initio and wrongly forecloses referendum where §65860(c) applies. | deBottari disapproved to the extent it bars referendums categorically; referendum permissible in many circumstances. |
Key Cases Cited
- Lesher Communications, Inc. v. City of Walnut Creek, 52 Cal.3d 531 (1990) (zoning ordinances inconsistent with a general plan are preempted and invalid when enacted)
- DeVita v. County of Napa, 9 Cal.4th 763 (1995) (initiative and referendum powers apply to local land‑use measures absent clear legislative preemption)
- deBottari v. City of Norco, 171 Cal.App.3d 1204 (1985) (court of appeal held referendum invalid where it would leave zoning inconsistent with general plan; disapproved in part by this Court)
- California Cannabis Coalition v. City of Upland, 3 Cal.5th 924 (2017) (ambiguities affecting initiative and referendum powers should be resolved to preserve those powers)
- Assembly v. Deukmejian, 30 Cal.3d 638 (1982) (referendum suspends effectiveness of ordinance pending vote)