The opinion
Filed 8/23/18
IN THE SUPREME COURT OF CALIFORNIA
CITY OF MORGAN HILL, )
)
Plaintiff and Respondent, )
) S243042
v. )
) Ct.App. 6 H043426
SHANNON BUSHEY, as Registrar of )
Voters, etc., et al., )
) Santa Clara County
Defendants and Respondents; ) Super. Ct. No. 16-CV-292595
)
)
RIVER PARK HOSPITALITY, INC., )
)
Real Party in Interest and )
Respondent; )
)
MORGAN HILL HOTEL COALITION, )
)
Real Party in Interest and )
Appellant. )
____________________________________)
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. Government
Code section 65860, subdivision (a)1 requires zoning ordinances to “be consistent
1 All subsequent statutory references are to the Government Code unless
otherwise specified.
1
SEE CONCURRING OPINION
with the general plan of the county or city.” This provision renders invalid any
change to the zoning ordinance that would make it inconsistent with the general
plan, whether the change is made by a local government or a local initiative.
(Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, 544
(Lesher).) But local residents can use the power of initiative or referendum
guaranteed to them by the California Constitution for a range of functions relevant
to land use, including to alter the general plan for their municipality. (DeVita v.
County of Napa (1995) 9 Cal.4th 763, 777-784 (DeVita).) When the general plan
is amended without also changing the corresponding zoning ordinance, the county
or city must amend the zoning ordinance within a “reasonable time” to make it
consistent with the general plan. (§ 65860, subd. (c).) The question we must
resolve is whether the people of a county or city may challenge by referendum a
zoning ordinance amendment that would bring the ordinance into compliance with
a change to the county’s or city’s general plan, even though such a referendum
would temporarily leave in place a zoning ordinance that does not comply with the
general plan.
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.
Section 65860, subdivision (c) contemplates some temporary inconsistency
between the zoning ordinance and the general plan for a “reasonable time” when
the general plan is modified. A referendum simply keeps that inconsistency in
place for a certain time –– until the local government can make the zoning
ordinance and general plan consistent in a manner acceptable to a majority of
voters. The Court of Appeal correctly held that a referendum can invalidate a
zoning ordinance amendment approved by a local jurisdiction to achieve
compliance with a general plan amendment, where other general-plan-compliant
2
zoning designations are available that would be consistent with a successful
referendum. In such a case, the local jurisdiction would likely be able to change
the zoning ordinance to comply with the general plan and the referendum within a
reasonable time.
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 the
property was to develop a hotel. The specific zoning designation of the property
— “ML-Light Industrial” — remained unchanged by the alteration to the general
plan.
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
3
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
4
(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).) It expressly
disagreed with deBottari’s holding that referendums are always invalid if they
reject a zoning ordinance enacted by the local government to bring a property’s
zoning into compliance with the jurisdiction’s general plan. (Ibid.) In cases
where multiple available zoning designations could comply with the general plan,
the Court of Appeal below held that a referendum rejecting the zoning change was
acceptable because the City could adopt another zoning designation that would be
consistent with the general plan within a “reasonable time.” (City of Morgan Hill,
at p. 43, quoting § 65860, subd. (c).) We granted review to determine whether the
people can bring a referendum to challenge an amendment to a property’s zoning
where a prior general plan amendment rendered the property’s zoning inconsistent
with the general plan and the challenged zoning amendment seeks to make the
property’s zoning consistent with the amended general plan.
II.
California’s legislative power is vested in its Legislature. But the people
have “reserve[d] to themselves the powers of initiative and referendum.” (Cal.
Const., art. IV, § 1.) The referendum power allows the public to approve or reject
statutes or parts of statutes. (Id., art. II, § 9, subd. (a).) This power “may be
exercised by the electors of each city or county under procedures that the
Legislature shall provide,” thereby granting to these electors the power to approve
or reject local ordinances. (Id., § 11, subd. (a).) Our duty is to “ ‘jealously
guard’ ” the referendum and initiative powers, and to liberally construe those
powers so that they “ ‘be not improperly annulled.’ ” (Associated Home Builders
5
etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, 591; see also California
Cannabis Coalition v. City of Upland (2017) 3 Cal.5th 924, 936 (California
Cannabis) [“[W]e resolve doubts about the scope of the initiative power in its
favor whenever possible [citation], and we narrowly construe provisions that
would burden or limit the exercise of that power”].)
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 indication” or a “ ‘clear showing’ ” that it was within the ambit of the
Legislature’s purpose to restrict those rights. (DeVita, at p. 775-776; id. at p. 775
[“ ‘[W]e will presume, absent a clear showing of the Legislature’s intent to the
contrary, that legislative decisions of a city council or board of supervisors . . . are
subject to initiative and referendum’ ”].) Such a “definite indication” exists, for
example, where the state Legislature limits the local legislative body’s discretion
such that its task is “administrative” rather than “legislative” (id. at p. 776; id. at p.
775 [“the local electorate’s right to initiative and referendum . . . is generally co-
extensive with the legislative power of the local governing body”]) or delegates
legislative authority exclusively to the local legislative body (see id. at pp. 776-
777, citing Committee of Seven Thousand v. Superior Court (1988) 45 Cal.3d 491,
511-512 (Committee of Seven Thousand)).
6
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 (§ 65000 et seq.) is an example: it
requires every county and city in California to adopt a general plan. (Lesher, at p.
535.) A general plan sets a county’s or city’s development policies and objectives,
and must contain a “land use element” that “designates the proposed general
distribution and general location and extent of the uses of the land for housing,
business, industry, open space, . . . public buildings and grounds, solid and liquid
waste disposal facilities, greenways, . . . and other categories of public and private
uses of land.” (§ 65302, subd. (a).)
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. Section 65860,
subdivision (a) provides that “[c]ounty or city zoning ordinances shall be
consistent with the general plan of the county or city . . . .” (§ 65860, subd. (a).)
In Lesher, we held that this provision preempts any local zoning ordinance that is
inconsistent with the general plan when enacted, and that an ordinance passed by
initiative is no exception. (See Lesher, supra, 52 Cal.3d at p. 544.) Any such
inconsistent zoning ordinance “is invalid at the time it is passed.” (Ibid.; see also
id. at p. 545 [also describing such zoning ordinances as “invalid ab initio,” that is,
invalid from the start].)
7
Nonetheless, a local zoning ordinance may temporarily differ from the
general plan following a general plan amendment. The Government Code favors
simultaneous modification of the general plan and the relevant zoning provisions.
(§ 65862 [“It is the intent of the Legislature, in enacting this section, that local
agencies shall, to the extent possible, concurrently process applications for general
plan amendments and zoning changes which are needed to permit development so
as to expedite processing of such applications”].) But this preference is not a
requirement. (See ibid. [requiring the concurrent processing of general plan
amendments and zoning changes “to the extent possible”].) So section 65860,
subdivision (c) governs in circumstances where the zoning ordinance “becomes
inconsistent with a general plan by reason of amendment to the plan, or to any
element of the plan.” (§ 65860, subd. (c).) In such circumstances, “the zoning
ordinance shall be amended within a reasonable time so that it is consistent with
the general plan as amended.” (Ibid.) This provision only applies to “zoning
ordinances which were valid when enacted,” that is, were enacted before the
general plan amendment and were consistent with the prior general plan. (Lesher,
supra, 52 Cal.3d at p. 546.) The purpose of subdivision (c) “is to ensure an
orderly process of bringing the regulatory law into conformity with a new or
amended general plan, not to permit development that is inconsistent with that
plan.” (Ibid.)
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 section 65860, subdivision (a), at least where the local
government could have chosen to comply with the general plan through other
zoning designations. (See City of Morgan Hill, supra, 12 Cal.App.5th at p. 43;
8
Save Lafayette v. City of Lafayette (2018) 20 Cal.App.5th 657, 664-669 [following
City of Morgan Hill’s reasoning].) The City and River Park argue such a
referendum is invalid, because it is effectively the same as an initiative causing the
zoning ordinance to conflict with the general plan. (See deBottari, supra, 171
Cal.App.3d at p. 1212; see also City of Irvine v. Irvine Citizens Against
Overdevelopment (1994) 25 Cal.App.4th 868, 874-879 [following deBottari].)
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. Section 65860, subdivision (c)’s
exception to subdivision (a) governs circumstances where the zoning ordinance
must be amended in response to changes to the general plan. (See § 65860, subd.
(c) [applying where “the zoning ordinance shall be amended . . . so that it is
consistent with the general plan as amended”].) A referendum challenging an
amendment to the zoning ordinance does not result in the final imposition of an
invalid zoning designation to the property preempted by section 65860,
subdivision (a), at least where a county or city can use other means to bring
consistency to the zoning ordinance and the general plan. (But see Lesher, supra,
52 Cal.3d at p. 544 [holding that § 65860, subd. (a) preempts a zoning ordinance
inconsistent with the general plan].)
Instead, a successful referendum in such circumstances prevents the local
government from changing the previously existing zoning designation for the
9
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 § 65860, subd. (c) [stating that the “zoning
ordinance shall be amended” to comply with the amended general plan].) Section
65860, subdivision (c) allows out-of-compliance zoning for a “reasonable time”
while the local legislative body seeks to amend the zoning ordinance because the
original designation was “valid when enacted” (Lesher, supra, 52 Cal.3d at p.
546). This exception to subdivision (a)’s prohibition does not dissolve merely
because a local government tried and failed on its first attempt to apply a particular
zoning designation to a piece of property.
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 article II, section
9 of the California Constitution, the referendum power is “the power of the
electors to approve or reject statutes.” (Cal. Const., art. II, § 9, subd. (a), italics
added.) Electors in counties and cities have the same power to approve or reject
ordinances. (Id., § 11, subd. (a).) Rather than “reviving” an inconsistent zoning
ordinance, a successful referendum is merely the rejection of an amendment
before it takes effect — there is no revival of the out-of-compliance zoning
designation because it was never eliminated.
A review of the procedures governing local referendums demonstrates why.
To bring a referendum, those opposing the ordinance must submit a petition
10
signed by at least 10 percent of the voters of the city2 protesting the adoption of
the ordinance within 30 days of the date the ordinance “is attested” to being
properly enacted by the legislative body. (Elec. Code, § 9237; id., § 9242
[requiring submission of the petition “within 30 days from the date of the adoption
of the ordinance to which it relates”]; see also id., § 9144 [requiring, for county
referendums, that the petition be filed before the ordinance’s effective date].) The
effective date of most ordinances, with limited exceptions, must be “30 days from
and after the date of . . . final passage” of the ordinance. (Id., § 9235; see also id.,
§ 9141, subd. (b) [same for county ordinances].) If a petition with sufficient
signatures is filed within the time limit, “the effective date of the ordinance shall
be suspended and the legislative body shall reconsider the ordinance.” (Id.,
§ 9237.) If the legislature does not “entirely repeal the ordinance against which
the petition is filed,” the legislative body must submit the ordinance to the voters
at a general election or a special election. (Id., § 9241.) The Elections Code
conveys that “[t]he ordinance shall not become effective until a majority of the
voters voting on the ordinance vote in favor of it.” (Ibid.)
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 Elec. Code, § 9241; Assembly v.
Deukmejian (1982) 30 Cal.3d 638, 656 (Deukmejian) [“As the Secretary of State
has pointed out, ‘In a REFERENDUM, VOTERS are asked to APPROVE the BILL
which the Legislature has enacted (“YES” VOTE) or to DISAPPROVE (“NO”
2 In a city with 1,000 or less registered voters, at least 25 percent of the
population or 100 people, whichever is fewer, must sign the petition. (Elec. Code,
§ 9237.)
11
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; Elec. Code § 9237), a referendum does not work a change
in the zoning ordinance. It prevents such a change from occurring.
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 subdivision (c) to section 65860 in 1973.
(Stats. 1973, ch. 120, § 6.) The power of referendum was added to the California
Constitution in 1911 (Associated Home Builders etc., Inc. v. City of Livermore,
supra, 18 Cal.3d at p. 591), and the statutory predecessors to the current
provisions governing city referendums are to a great extent similar to what they
were in 1973 (see, e.g., Elec. Code, former § 4052 [now Elec. Code, § 9241];
Stats. 1969, ch. 940, § 14, p. 1881). So we can presume the Legislature added this
provision against the backdrop of knowledge that local referendums might be used
to challenge zoning ordinance amendments that involve discretionary choices
between different options. (See People v. Pieters (1991) 52 Cal.3d 894, 907 [“we
presume that the Legislature has knowledge of all prior laws and enacts and
amends statutes in light of those laws”].)
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
12
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 section 65860, subdivision (c), the zoning
ordinance is best understood as the product of a discretionary policy choice about
the proper use of the land. Nor is this a case where the state statute gives
discretion solely to the legislative body, to the exclusion of the electors. (See
Committee of Seven Thousand, supra, 45 Cal.3d at pp. 511-512.)
Indeed, section 65860, subdivision (c) imposes a mandate that the zoning
ordinance be made consistent with the general plan. But it conspicuously fails to
specify who decides how that consistency is achieved. Without evidence of a
contrary purpose, we presume it was not within the ambit of the Legislature’s
goals to exclude electors from the zoning ordinance amendment process. (See
DeVita, supra, 9 Cal.4th at p. 775 [“ ‘[W]e will presume, absent a clear showing
of the Legislature’s intent to the contrary, that legislative decisions of a city
council or board of supervisors . . . are subject to initiative and referendum’ ”].)
We have previously observed that the purpose of section 65860, subdivision (c)
“is to ensure an orderly process of bringing the regulatory law into conformity
with a new or amended general plan.” (Lesher, supra, 52 Cal.3d at p. 546.) We
see no reason why an orderly process in this vein must categorically exclude a
referendum.
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 goes against a
13
particular zoning ordinance amendment, or a mayor’s veto of such an ordinance if
the city has granted the mayor such power. (See Referendum Committee v. City of
Hermosa Beach (1986) 184 Cal.App.3d 152, 157 [“The referendum process
allows the voters to veto statutes and ordinances enacted by their elected
legislative bodies before those laws become effective” (italics added)].) Nothing
in section 65860 indicates that members of a municipality’s legislative body must
vote for a particular zoning ordinance amendment. Indeed, the ordinance in this
case garnered two dissenting votes. Nor is there any indication that a “mayor’s
veto” would be ineffective in blocking a zoning ordinance amendment. A
legislative body, a vetoing mayor, or electors –– by referendum –– can properly
prevent the selection of one general-plan-compliant zoning ordinance when others
are available.
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
14
zoning ordinance amendment until a majority of voters approve the amendment.
(Elec. Code, §§ 9237, 9241.) As a result, a piece of property may undergo
development, or legal rights may vest in development of the property before an
initiative can be brought to a vote. Given these considerations, construing section
65860, subdivision (c) to contemplate referendum challenges avoids unduly
cramping the referendum power and implicitly restricting its relevance. (Cf.
California Cannabis, supra, 3 Cal.5th at p. 936 [holding that we must resolve
doubts about the initiative power in its favor and “narrowly construe provisions
that would burden or limit the exercise of that power”].)
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 “enact an invalid zoning ordinance”
even if other zoning designations not obviated by the referendum could comply
with the general plan. (deBottari, at p. 1212.) What the deBottari court
misapprehended is why certain ordinances are invalid “ab initio.” An initiative or
city council measure rendering a zoning ordinance noncompliant with the general
plan is invalid because section 65860, subdivision (a) preempts — and thereby
forbids — the existence of that newly enacted ordinance. But although a
referendum rejecting a zoning ordinance amendment does, for a temporary period,
result in the continuation of an out-of-compliance zoning ordinance, it does so as
part of the exception to section 65860, subdivision (a) found in subdivision (c).
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
15
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 section 65860, subdivision (c)’s explicit reference to a
reasonable period of time during which the general plan and zoning ordinance may
be inconsistent after a general plan amendment. In contrast, the City and River
Park essentially urge us to find that the policies underlying general plans are of
such great importance that they require us to eliminate the right to referendum.
That would not be harmonization, but victory of general plans over the referendum
right. Such a result would be contrary to our approach to statutory interpretation,
and our liberal construction of the people’s reserved power of referendum.
Moreover, local governments may be able to prevent situations where the
zoning ordinance does not comply with the general plan for an extended period of
time. The Government Code, for example, states a policy of “concurrently
16
process[ing] applications for general plan amendments and zoning changes . . . so
as to expedite processing of such applications.” (§ 65862.) If local governments
simultaneously alter the general plan and the zoning ordinance, then no
inconsistency between the general plan and zoning ordinance would occur during
the pendency of a referendum against those simultaneous changes. Indeed, the
need to avoid this risk may incentivize compliance with the Government Code’s
stated policy. In addition, local governments may be able to develop creative
strategies for implementing zoning ordinances that would obviate the need for
successive referendums if electors disagree with the local government’s later
choices for a property’s zoning designation.
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 section 65860’s reasonable time
requirement can ever limit the people’s ability to bring a referendum. Whatever
“reasonable” might mean in subdivision (c), we find no basis for reading into this
term such a specific limitation that it effectively prohibits the temporary
inconsistency required to hold a single referendum, or to align the zoning
ordinance with the general plan in a manner consistent with the referendum’s
result. The statute does not provide a benchmark for what is a “reasonable time”
to amend the zoning ordinance, and nothing in its explicit provisions, structure, or
other indicia of its purpose suggest that the “reasonable time” reference is best
construed as effectively prohibiting a straightforward referendum challenge to a
zoning ordinance. (See California Cannabis, supra, 3 Cal.5th at pp. 933-934.)
17
The City points out how the Senate version of subdivision (c) to section 65860 —
the one ultimately enacted — was adapted from a competing Assembly Bill that
would have required a zoning ordinance to match the general plan within 90
days. Even if we assigned particular importance to this morsel of legislative
history, the most plausible inference arising from it would cut against the City’s
argument: the Legislature failed to enshrine the 90-day limit in the statute, and
left no basis for concluding that the only reasonable meaning of “reasonable time”
is a 90-day limit restricting the people’s referendum power.
In addition, the timing of subdivision (c)’s addition to section 65860
provides some indication that the Legislature can reasonably be understood to
have been aware of the delays that might ensue from a referendum. Currently, a
referendum stays the effective date of the zoning ordinance, and requires the issue
be decided at a special or general election more than 88 days after the legislative
body orders an election on the issue. (Elec. Code, § 9241.) At the time the
Legislature added subdivision (c) to Government Code section 65860 in 1973, the
Elections Code contained the predecessor to Elections Code section 9241,
Elections Code former section 4052. That provision required a referendum to be
either decided at a general election 45 days after the legislative body orders the
election, or at a special election occurring “not less than 60 nor more than 75 days
after the date of the order.” (Stats. 1969, ch. 940, § 14, p. 1881.) Moreover, in the
same legislative session as the 1973 amendment to Government Code section
65860, the Legislature extended the time for a special election to occur not less
than 74 and not more than 89 days after the legislative body’s order. (Stats. 1973,
ch. 167, § 13, p. 470.) This is all to say, when the state Legislature added the
“reasonable time” requirement of section 65860, subdivision (c), we must presume
it was aware that the referendum process would create delays similar to the current
18
88 day waiting period to hold an election. (See People v. Pieters, supra, 52 Cal.3d
at p. 907.)
This conclusion is supported by previous interpretations of other provisions
that involve a “reasonable time.” Former section 53051, for example, made local
agencies liable for injuries caused by “dangerous or defective condition[s] of
public property” if the government had notice of the condition and “[f]or a
reasonable time after acquiring knowledge or receiving notice, failed to remedy
the condition . . . .” (Former § 53051.) The Court of Appeal determined that this
“reasonable time” determination was a context-dependent question for the trier of
fact. (Bady v. Detwiler (1954) 127 Cal.App.2d 321, 335.) Similarly, for contracts
and the law of sales, the question of whether a “reasonable time” has passed is a
question that depends on the circumstances. (Whitfield v. Jessup (1948) 31 Cal.2d
826, 831 [“ ‘It may be taken as axiomatic that what constitutes a reasonable time
must be determined from the particular circumstances in the individual case’ ”];
see also Fromm v. Sierra Nevada Silver Min. Co. (1882) 61 Cal. 629, 631–632.)
What these examples demonstrate for the purposes of this case is that we may
sensibly presume the Legislature could have contemplated that a “reasonable
time” would vary based on circumstance when it added subdivision (c) to section
65860. The people’s power of initiative and referendum constitutes a background
principle of constitutional and statutory law that dates back to the early 1900s.
Given the fundamental role these powers play not only in local jurisdictions but in
the legislative process across the state, we can reasonably presume that the
Legislature enacted subdivision (c) with sufficient information to know that the
referendum power might be used to challenge a zoning amendment. In this
institutional and historical background, the context-dependent reference to a
“reasonable time” in subdivision (c) is best read as compatible with use of
referendums, rather than as an oblique way to specifically exclude the use of
19
referendums. So we conclude that a “reasonable time” includes the time necessary
to bring at least one referendum challenge, and to rectify the inconsistency
between the zoning ordinance and the general plan in a manner that complies with
the referendum.
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 Elections Code
section 9241.
Elections Code section 9241 states that if a referendum is successful, “the
ordinance shall not again be enacted by the legislative body for a period of one
year after the date of its . . . disapproval by the voters.” (Elec. Code, § 9241.)
Elections Code section 9241’s one-year prohibition extends to any subsequent
ordinance that is “essentially the same” as the original ordinance. (Cf.
Deukmejian, supra, 30 Cal.3d at p. 678 [contrasting ordinances that are
“essentially the same” with those that are “essentially different”]; Lindelli v. Town
of San Anselmo (2003) 111 Cal.App.4th 1099, 1110 [discussing whether a
20
subsequent ordinance is “essentially similar” in the context of the stay imposed
during the pendency of a referendum].) The City and River Park believe this
means the referendum is invalid because a one-year delay would not comply with
Government Code section 65860’s “reasonable time” requirement.
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 Elections Code section 9241’s one-
year delay. They have failed to do so.
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 River
Park argue that the trial court made a factual finding to this effect. They assert
that the Court of Appeal gave insufficient deference to this factual finding by
asserting that “[t]he stated purpose of the referendum was to prevent the
development of a hotel on the parcel.” (City of Morgan Hill, supra, 12
Cal.App.5th at p. 38.) The City and River Park’s characterization of the trial
court’s findings is incorrect. They cite to a portion of the trial court’s order in the
instant case. But the trial court’s order merely finds that the referendum would
leave in place a zoning designation that does not comply with the general plan and
would be an invalid “enact[ment]” under deBottari. We perceive no “factual
finding” about the purpose of the referendum to which the Court of Appeal gave
insufficient deference.
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
21
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 do not find the
issue forfeited, because deBottari established that the availability of other zoning
designations was irrelevant. The Court of Appeal’s decision here constituted a
change in law that placed, for the first time, the City on notice that it needed to
contest the availability of alternative zoning designations. The City preserved the
3 Hotel Coalition concedes the referendum’s purpose was to prevent hotel
use. There are multiple general-plan-compliant zoning designations that allow
hotel use, and so without Hotel Coalition’s concession, and the lack of evidence
about voter intent before the court, the referendum likely could not be invalidated.
But given Hotel Coalition’s concession, we assume for the purposes of this
opinion that zoning designations allowing hotel use would not comply with the
referendum.
22
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 section 65860 would require invalidation of
a referendum where a county or city cannot change the zoning ordinance, but can
alter the general plan to comply with the referendum and section 65860. This
inquiry may be affected by the facts of a given case. We have not considered
whether invalidation is required when, as is apparently the case here, a general
plan is amended to accommodate a specific development, the zoning amendment
that is the subject of a referendum is not adopted concurrently with the general
plan amendment, and the referendum manifestly disapproves of the use the general
plan amendment was designed to accommodate.
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,
23
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.
IV.
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 section 65860, subdivision (c) —
at least where other consistent zoning designations could have been selected
instead. Subdivision (c) allows inconsistent zoning for a “reasonable time,” and a
single referendum and responsive government action do not render the amount of
time it takes to reach consistency “unreasonable.” Given our duty to protect the
referendum power, we conclude the Court of Appeal was correct to hold that a
referendum can be used to challenge a zoning ordinance amendment that attempts
to make the zoning ordinance consistent with an amended general plan. But it is
not clear 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. So
24
we vacate the judgment of the Court of Appeal and remand the case to the Court
of Appeal with directions to remand to the trial court to address these questions.
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 article VI, section 6 of the
California Constitution.
25
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 hotel to be
built on the property. If the referendum succeeds, it seems the City could simply
change the general plan back the way it was.
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.
2
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion City of Morgan Hill v. Bushey
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 12 Cal.App.5th 34
Rehearing Granted
__________________________________________________________________________________
Opinion No. S243042
Date Filed: August 23, 2018
__________________________________________________________________________________
Court: Superior
County: Santa Clara
Judge: Theodore C. Zayner
__________________________________________________________________________________
Counsel:
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.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Asit S. Panwala
Law Office of Asit Panwala
4 Embarcadero Center, Suite 1400
San Francisco, CA 94111
(415) 766-3526
Katherine A. Alberts
Leone & Alberts
2175 North California Boulevard, Suite 900
Walnut Creek, CA 94596
(925) 974-8600
Jolie Houston
Berliner Cohen
Ten Almaden Boulevard, Eleventh Floor
San Jose, CA 95113-2233
(408) 286-5800