20 Cal.App.5th 657
Cal. Ct. App.2018Background
- Lafayette amended its General Plan (Aug. 2015) redesignating Parcel 27 from Administrative Professional Office (APO) to Low Density Single Family Residential (R-20); the amendment became effective after a 30‑day period.
- After the General Plan amendment became unchallengeable, the City adopted a zoning ordinance (Ordinance No. 641) to rezone Parcel 27 from APO to R-20.
- Appellants (Save Lafayette and an individual) timely filed and properly certified a referendum petition challenging Ordinance No. 641 and seeking its repeal or submission to the voters.
- The City refused to suspend or submit the ordinance to voters, reasoning a successful referendum would revert zoning to APO and create a zoning–General Plan inconsistency (claimed legally invalid referendum); the City relied on deBottari.
- Trial court denied appellants’ writ petition after finding the City made a compelling showing the referendum would create an inconsistency; appellants appealed.
- The Court of Appeal reversed, holding the City improperly kept the referendum off the ballot and remanded for determination of Code Civ. Proc. § 1021.5 attorney fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the City must place a duly certified referendum on the ballot challenging a zoning ordinance adopted after a General Plan amendment | Referendum must be placed on the ballot; referendum only preserves status quo and does not enact invalid zoning | City may refuse because a successful referendum would restore zoning inconsistent with the amended General Plan, making the referendum legally invalid (deBottari) | The City erred; it must submit the certified referendum. A referendum rejecting the ordinance preserves the status quo and does not itself enact invalid zoning. |
| Whether a referendum that would revert zoning to pre‑amendment status is invalid under Gov. Code § 65860 | Referendum does not enact new zoning and thus § 65860 does not bar referendum; § 65862 favors concurrent processing | Referendum would produce a zoning inconsistent with the General Plan and thus is invalid under § 65860/deBottari | The court adopts Bushey/Merritt reasoning: § 65860 does not preclude a referendum that simply rejects a council’s chosen consistent rezoning; referendum preserves status quo and is not an enactment in conflict with the General Plan. |
| Whether the City’s unilateral determination could keep the referendum off the ballot without seeking judicial relief | The City improperly made a unilateral legal determination; if it thought the referendum invalid it should have sought a writ | City claims discretion to refuse because of legal invalidity | Court rejects City’s unilateral refusal; proper route is to place measure on ballot or seek writ; unilateral exclusion improperly interferes with referendum rights. |
| Entitlement to attorney fees under Code Civ. Proc. § 1021.5 | Appellants seek fees as successful public‑interest litigants enforcing important public right | City did not address fees on appeal | Court remands to trial court to consider § 1021.5 fee request because record/briefing are inadequate for appellate resolution. |
Key Cases Cited
- deBottari v. City Council, 171 Cal.App.3d 1204 (Cal. Ct. App. 1985) (held a city may withhold a referendum from voters when its adoption would result in zoning inconsistent with an amended general plan)
- City of Morgan Hill v. Bushey, 12 Cal.App.5th 34 (Cal. Ct. App. 2017) (held a referendum that would reject a council’s rezoning choice preserves the status quo and is not categorically invalid under § 65860)
- Lesher Communications, Inc. v. City of Walnut Creek, 52 Cal.3d 531 (Cal. 1990) (general plan is the charter; zoning must conform to the plan; § 65860 requires bringing inconsistent zoning into conformity)
- Merritt v. City of Pleasanton, 89 Cal.App.4th 1032 (Cal. Ct. App. 2001) (defeat of a prezoning referendum preserved the status quo and did not immediately mandate rezoning to implement the general plan)
- California Cannabis Coalition v. City of Upland, 3 Cal.5th 924 (Cal. 2017) (emphasized courts must jealously guard initiative/referendum rights; municipalities cannot unilaterally exclude measures on debatable legal grounds)