12 Cal. App. 5th 34
Cal. Ct. App. 5th2017Background
- Parcel at 850 Lightpost Parkway in Morgan Hill: general plan land-use changed from Industrial to Commercial (Nov 2014); zoning remained ML‑Light Industrial.
- City adopted Ordinance No. 2131 (Apr 2015) to rezone the parcel to CG‑General Commercial (which would permit a hotel).
- Coalition submitted a timely referendum (May 2015) to prevent the zoning change; City initially certified sufficiency but later sought to stop the referendum as creating a zoning/general‑plan inconsistency.
- City filed a petition to remove the referendum from the June 2016 ballot; the superior court granted the petition relying on deBottari and certified O‑2131 as effective.
- Coalition appealed; the Court of Appeal reversed, holding a referendum that would reject a chosen consistent rezoning does not itself violate the general plan so long as the legislative body retains discretion to adopt another consistent zoning.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a referendum that would prevent a legislative rezoning (intended to make zoning consistent with a revised general plan) is invalid because it would re‑create a general‑plan inconsistency | Coalition: referendum merely preserves the preexisting status quo; it does not enact an invalid zoning and is therefore permissible | City: Gov. Code §65860 requires zoning to conform to the general plan, so a successful referendum that reimposes inconsistent zoning would be invalid and thus cannot be submitted | Court reversed superior court: referendum is valid; referendum preserves status quo and §65860 does not preclude referendum where the legislative body can later adopt another zoning consistent with the plan |
Key Cases Cited
- deBottari v. City Council, 171 Cal.App.3d 1204 (Cal. Ct. App. 1985) (held referendum could be refused where repeal would create inconsistency with amended general plan)
- Lesher Communications, Inc. v. City of Walnut Creek, 52 Cal.3d 531 (Cal. 1990) (zoning ordinance that conflicts with general plan is invalid)
- Yost v. Thomas, 36 Cal.3d 561 (Cal. 1984) (rezoning is a legislative act subject to referendum)
- Assembly v. Deukmejian, 30 Cal.3d 638 (Cal. 1982) (new measure valid if essentially different and not enacted in bad faith to evade referendum)
- DeVita v. County of Napa, 9 Cal.4th 763 (Cal. 1995) (initiative/referendum powers coextensive with legislative power except where preempted by statute)