CITY OF MORGAN HILL v. SHANNON BUSHEY, as Registrar of Voters, etc., et al. (RIVER PARK HOSPITALITY, INC., et al., Real Parties in Interest)
S243042
IN THE SUPREME COURT OF CALIFORNIA
August 23, 2018
Ct.App. 6 H043426
CUÉLLAR, J.
Santa Clara County Super. Ct. No. 16-CV-292595. Judge: Theodore C. Zayner.
SEE CONCURRING OPINION
Filed 8/23/18
Law Office of Asit Panwala, Asit S. Panwala; Toch Law Firm and J. Randall Toch for Real Party in Interest and Appellant.
Donald Alan Larkin, City Attorney; Leone & Alberts, Katherine A. Alberts, Louis A. Leone and Ioana Mondescu for Plaintiff and Respondent.
Burke, Williams & Sorensen and Thomas B. Brown 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 for Defendant and Respondent Irma Torrez, as City Clerk for City of Morgan Hill.
Berliner Cohen, Jolie Houston and Thomas P. Murphy for Real Party in Interest and Respondent.
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.
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.
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
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 (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 (City of Morgan Hill).)
II.
California’s legislative power is vested in its Legislature. But the people have “reserve[d] to themselves the powers of initiative and referendum.” (
People in counties and cities may also use their referendum and initiative powers to alter local government policy — subject to limited preemption by the state Legislature. (DeVita, supra, 9 Cal.4th at pp. 775-777.) The Legislature may engage in such preemption only if it acts within its constitutionally granted authority to legislate on issues of “statewide concern.” (Voters for Responsible Retirement v. Board of Supervisors (1994) 8 Cal.4th 765, 779 [“the Legislature may restrict the right of referendum if this is done as part of the exercise of its plenary power to legislate in matters of statewide concern”].) We only find local application of the public’s power of referendum or initiative preempted if there is a “definite
Although zoning and general plans implicate local concerns and are often addressed by local governments, these arrangements also raise issues of “statewide concern.” (DeVita, supra, 9 Cal.4th at p. 784.) So the Legislature has the constitutional power to enact laws limiting local government power over land use. (See DeVita, at pp. 772-773, 776, 784; see also Lesher, supra, 52 Cal.3d at p. 544; Committee of Seven Thousand, supra, 45 Cal.3d at pp. 510-512.) The Planning and Zoning Law of the State of California (
By initiative, local governments or members of the public may alter a general plan, including its land use elements. (DeVita, supra, 9 Cal.4th at pp. 775, 777-784.) While a given general plan is in effect, neither local governments nor electors can enact a zoning ordinance inconsistent with it.
Nonetheless, a local zoning ordinance may temporarily differ from the general plan following a general plan amendment. The Government Code
The core question here is whether the state Legislature preempted local electors’ power to challenge by referendum a local government ordinance — one aligning the relevant zoning designations with the amended general plan. Hotel Coalition contends that the local electors can exercise their referendum power without conflicting with
We disagree with the City and River Park. What we conclude is that the people of a local municipality may indeed challenge by referendum a zoning ordinance amendment that changes a property’s zoning designation to comply with a general plan amendment, at least where other consistent zoning options are available, or the local municipality has the power to make the zoning ordinance and general plan consistent through other means. A referendum is not impermissible — and its result is not null — simply because, if approved by the voters, it forces some change to a local government action taken to align zoning with the general plan currently in force.
Instead, a successful referendum in such circumstances prevents the local government from changing the previously existing zoning designation for the property — notwithstanding its noncompliance with the amended general plan. It does so without vitiating the City’s duty to make the zoning ordinance and general plan consistent with one another. (See
The City and River Park argue that a referendum does more than merely prevent change of the noncompliant zoning ordinance. They construe it instead as an affirmative action that “repeals” the amending ordinance, which thus “revives” the out-of-compliance zoning designation. We disagree. Under
A review of the procedures governing local referendums demonstrates why. To bring a referendum, those opposing the ordinance must submit a
These provisions best fit a straightforward interpretation of what happens when electors use a referendum to reject a statute enacted by the Legislature. To wit: the referendum does not revive a superseded statute. Instead, it rejects a statutory alteration before it becomes law. (See
VOTE) . . . . The question which is put to the voters is “SHALL (the bill) BECOME LAW? (YES or NO).” ’ (Memo. from Sect. of State’s office to county clerks and registrars of voters (Sept. 24, 1981).) Approval of the referendum is approval of the bill”].) In the same way, because a zoning ordinance is “stayed from taking effect until it has been approved by the voters at the required election” (Deukmejian, at p. 656;
Moreover, we find no sign that it was the Legislature’s purpose to prevent electors from using their referendum power against objectionable zoning ordinance alterations. The Legislature was in a position to be well aware of the local referendum power when it added
The situation here also contrasts with prior cases. This case does not involve a “clear showing” that the Legislature contemplated preemption of local electors’ referendum power. This situation is not one where state law mandates a certain result with no discretion or that involves an “administrative” task. (See Simpson v. Hite (1950) 36 Cal.2d 125, 133-135 [finding referendum power unavailable to challenge a statute requiring the board of supervisors to find suitable accommodation for state courts]; Housing Authority of City of Eureka v. Superior Court in and for Humboldt County (1950) 35 Cal.2d 550, 553, 558 [holding local approval of public housing agency’s application for a federal loan to be an administrative action].) Where the local government can still implement one of multiple approaches to achieve consistency between the zoning ordinance and the general plan while complying with
Indeed,
That such an “orderly process” can encompass use of a referendum becomes even clearer when we compare its use here to other situations. Consider, for example, a vote in a local jurisdiction’s legislative body that
To hold otherwise would eviscerate local electors’ referendum power. The City and River Park argue local electors could have challenged the prior alterations to the general plan by referendum, or changed the general plan or the zoning ordinance by initiative (so long as the zoning ordinance matches the general plan). Although these alternative options provide some avenue for relief, a referendum can play an important and distinct role — as it does in this case. A change to the general plan may in many cases reveal mere generalities, consigning to relative ignorance local electors unaware of the City’s plans for the property. And electors may agree with a general plan modification, but not the particular zoning amendment used to conform to the general plan. So the ability to bring a referendum to challenge a general plan amendment may not always make up for the lack of availability of a referendum challenging a later, more specific zoning ordinance amendment. Unlike an initiative, which acts as standalone legislation to repeal the already enacted zoning ordinance amendment, a referendum petition satisfying the statutory prerequisites suspends the effective date of the challenged zoning ordinance amendment until a majority of voters approve the amendment. (
These considerations lead us to disapprove of the reasoning in deBottari v. City of Norco, supra, 171 Cal.App.3d 1204 and City of Irvine v. Irvine Citizens Against Overdevelopment, supra, 25 Cal.App.4th 868. In deBottari, the Court of Appeal held a referendum rejecting a zoning ordinance to be invalid ab initio because the voters did not have the power to
The deBottari court’s decision was motivated, to some extent, by the general plan’s role “as the ‘constitution for all future developments within the City.’ [Citation.]” (deBottari, supra, 171 Cal.App.3d at p. 1212; see also Lesher, supra, 52 Cal.3d at p. 540 [describing the general plan as “a ‘constitution,’ or perhaps more accurately a charter for future development”].) Leveraging this logic, the City and River Park argue that allowing a referendum to reject a zoning ordinance chosen by the local government to achieve compliance with the general plan will undermine the purposes of the plan. According to the City and River Park, such a result would “lock inconsistent zoning in place for months if not years” and would create substantial uncertainty about how that land can be used in the interim. Yet our task is — where reasonably possible — to protect the people’s reserved legislative power, including the power to bring a referendum. (Cf. California Cannabis, supra, 3 Cal.5th at pp. 933-934.) To the extent possible, we also seek to reconcile the statutory provisions governing general plans in the Government Code with the Constitutional and statutory right to referendum. (Tripp v. Swoap (1979) 17 Cal.3d 671, 679 [“two codes . . . ‘must be read together and so construed as to give effect, when possible, to all the provisions thereof’ ”]; cf. DeVita, supra, 9 Cal.4th at p. 778 [“the question is not whether Elections Code section 9111 in some fashion misconstrues the planning law, but rather how that statute can be reconciled with the planning law”].) We can harmonize these provisions by applying
Moreover, local governments may be able to prevent situations where the zoning ordinance does not comply with the general plan for an extended
The City and River Park maintain that giving effect to the referendum will engender awkward questions about what constitutes a “reasonable time” for a zoning ordinance to remain out of compliance with a general plan. An implication of this argument is that when a referendum leaves in its wake an inconsistency between a zoning ordinance and a general plan, the referendum would become invalid if it would cause an “unreasonable” amount of time to transpire. But we can resolve this case without sorting out whether
The City points out how the Senate version of
In addition, the timing of
This conclusion is supported by previous interpretations of other provisions that involve a “reasonable time.”
III.
Even if a similar referendum could be valid in some circumstances, the City and River Park insist a problem existed with this particular referendum. The trial court was right to remove this referendum from the ballot, they posit, because the local government would have found it impossible to comply with the referendum in light of the specific general plan that existed at the time. They assert that the referendum sought to prevent a change in the property’s zoning designation from industrial to commercial, not merely to prevent a zoning designation that allows hotels. Implementing a commercial zoning designation prohibiting hotels from being built on the property, they claim, would comply with the general plan but not the referendum. In the alternative, they contest whether a commercial zoning designation is available for this particular property that forbids hotel use. If either of these assertions is true, they contend the referendum would trigger a one-year delay in implementing any commercial zoning designation under
But this is a question we need to reach only if the City and River Park had in fact shown it would be impossible for the City to comply with the general plan and a successful referendum, thus triggering
First, we cannot conclude that the referendum’s purpose was to prevent a change from industrial to commercial zoning for the property. The City and
The City and River Park also point to an unpublished ballot measure argument. That argument purportedly would have been presented to voters if the referendum had not been stayed. Although we may consider ballot arguments “to ascertain the voters’ intent” (Delaney v. Superior Court (1990) 50 Cal.3d 785, 801), a lone unpublished ballot argument is insufficient for us to discern what the voters’ purpose would be should they approve the referendum. So this unpublished ballot argument is insufficient to make the “clear showing of invalidity” necessary to remove a referendum from the ballot before a vote even occurs. (Brosnahan v. Eu (1982) 31 Cal.3d 1, 4 (Brosnahan); Costa v. Superior Court (2006) 37 Cal.4th 986, 1005.)3
The City argues in the alternative that the Court of Appeal’s reasoning relies on the availability of other general-plan-compliant zoning designations that also comply with the referendum, when no such zoning designations are available for the property. Hotel Coalition contends that this argument is forfeited because the City and River Park did not contest the availability of other zoning designations in the trial court or the Court of Appeal until the petition for rehearing. (See Midland Pacific Building Corp. v. King (2007) 157 Cal.App.4th 264, 276 [“It is much too late to raise an issue for the first time in a petition for rehearing”]; see also Reynolds v. Bement (2005) 36 Cal.4th 1075, 1092.) Indeed, because the issue was uncontested, the Court of Appeal found that “it is undisputed that City could have selected any of a number of consistent zoning districts to replace the parcel’s inconsistent zoning . . . .” (City of Morgan Hill, supra, 12 Cal.App.5th at p. 41.) Regardless, we
issue by challenging that contention in a petition for rehearing and in its briefing before this court.
Twelve separate commercial zoning designations are available in the City, six of which allow use by hotels. Yet while neither party disputes the existence of these designations, the City contends that five of the remaining six designations prohibiting hotels cannot possibly apply to the property at issue here, and that it is “questionable” whether the last remaining commercial zoning designation was available for the property. These arguments were not fully explored below. Moreover, neither party fully addressed the possibility that the City would be able to add zoning designations that would comply with the general plan and referendum, even if no current zoning designation would comply with the general plan and the referendum. Nor have the City and River Park addressed whether the City would be able to alter the general plan in response to the referendum. Although we held in Lesher that an initiative instituting an invalid zoning ordinance cannot be used to alter a general plan (Lesher, supra, 52 Cal.3d at p. 541), we have not addressed whether
Because of these unresolved questions not fully briefed in the case before us, we remand to the trial court for it to determine whether existing alternative zoning designations would be viable for the property postreferendum, and if not, what would prevent the City from creating a new zoning designation that would be consistent with both the general plan and a successful referendum. If there is at least some avenue for the City to change the zoning ordinance to comply with the general plan within a reasonable time, the referendum must go forward as there has been no “clear showing of invalidity.” (Brosnahan, supra, 31 Cal.3d at p. 4.) If necessary, the trial court may also address whether a referendum can be invalidated where the City has the ability to amend the general plan in order to conform the plan to the zoning designation that the referendum would leave in place.
State law may preempt the power of referendum where there is a definite indication of the Legislature’s purpose to do so. Not so in this case. We can divine no indication that such preemption was the Legislature’s intended purpose. While the enactment of a zoning ordinance that does not comply with a general plan is invalid ab initio, a successful referendum challenging a zoning ordinance amendment seeking to make the zoning ordinance consistent with a general plan amendment falls within the exception created by
CUÉLLAR, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
LIU, J.
KRUGER, J.
MARGULIES, J. *
* Associate Justice of the Court of Appeal, First Appellate District, Division One, assigned by the Chief Justice pursuant to
CONCURRING OPINION BY CHIN, J
I fully agree with the majority opinion. It is a close question whether a remand is necessary to determine “if other zoning designations were available for the property here, or whether the City has other means to comply with a successful referendum while making the zoning ordinance and the general plan consistent with one another.” (Maj. opn., ante, at p. 25.) It certainly appears the City of Morgan Hill (the City) has the means to make the zoning ordinance and general plan consistent with one another if the referendum succeeds.
Even if other zoning designations for the property are not currently available, I see no obvious impediment to the City simply amending the zoning ordinance to achieve the necessary consistency. Alternatively, the City could amend the general plan to make it once again consistent with the zoning ordinance. The City amended the general plan previously to permit a
Nevertheless, because the briefs have not focused on this precise point, I agree that a remand is appropriate. If the City chooses to pursue the matter, it may argue on remand that its authority in land use planning is so limited that it could not possibly make the zoning ordinance and the general plan consistent should the referendum succeed. The question, however, is not whether the City wishes to do what is necessary to comply with a successful referendum. It clearly does not wish to do so. The question is whether it would be impossible for the City to make the general plan and zoning ordinance consistent should the referendum succeed.
CHIN, J.
I CONCUR:
CANTIL-SAKAUYE, C. J.