Posted by: Patricia Salkin | June 4, 2017

CA Appeals Court Finds Referendum Petition Challenging an Ordinance Would Not be Invalid if the Legislative Body Remained Free to Select another Consistent Zoning for the Subject Parcel


This case involved a vacant parcel at 850 Lightpost Parkway in Morgan Hill owned by River Park.   In November 2014, City amended its general plan to change the land use designation for this parcel to “Commercial” from “ML–Light Industrial.”  In April 2015, City’s city council approved Ordinance no. 2131 (O–2131), which would have changed the parcel’s zoning to “CG–General Commercial.”  This zoning would have permitted a hotel on the parcel. In May 2015, the Coalition submitted a timely referendum petition challenging O–2131. In July 2015, City “discontinued processing” the referendum and changed the parcel’s zoning to “Highway Commercial” rather than “General Commercial”, which it believed to be consistent with the general plan’s “Commercial” land use designation for the parcel. In February 2016, City changed its position and passed a resolution calling for a June 2016 special election to submit the referendum to the voters. At the same time, it authorized the filing of an action to have the referendum “nullified as legally invalid and removed from the ballot.” The City commenced this action in March 2016 seeking to remove the referendum from the June 2016 ballot. The superior court granted City’s petition, finding the City had established the “invalidity” of the referendum by showing that “the current zoning in question is inconsistent with the City’s General Plan—and therefore presumptively invalid.” The court ordered that the referendum be removed from the ballot and that O–2131 be certified “as duly adopted and effective immediately….”
Contrary to the City’s contention, the City’s ML–Light Industrial zoning for the parcel did not automatically become invalid in November 2014 because that zoning was consistent with City’s general plan prior to the general plan amendment. Instead, the court found that the City had “a reasonable time” under section 65860, subdivision (c) to amend the zoning of the parcel to make it consistent with the general plan. The court further found that section 65860 did not require City to adopt O–2131; although it preempted City from enacting a new zoning that was inconsistent with the general plan, it did not preclude City from exercising its discretion to select one of a variety of zoning districts for the parcel that would be consistent with the general plan. Since City retained this discretion, the court held that section 65860 did not preclude the electorate from exercising its referendum power to reject City’s choice of zoning district in O–2131.
Furthermore, the court noted a referendum that rejects an ordinance simply maintains the status quo. As such, it cannot violate section 65860, which prohibits the enactment of an inconsistent zoning ordinance. Here, where an ordinance attempted to resolve that inconsistency by replacing the inconsistent zoning with a consistent zoning that was just one of a number of available consistent zonings, the legislative body would be free to choose one of the other consistent zonings if the electorate rejected the legislative body’s first choice of consistent zonings. Accordingly, the superior court’s order granting City’s petition was reversed, and the superior court was directed to enter a new order denying City’s petition.
City of Morgan Hill v Bushey, 2017 WL 2334024 (CA App 5/30/2017)

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