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California Supreme Court Finds Voter Referendum Is Not Automatically Invalid Due to Resulting Inconsistency Between General Plan and Zoning Ordinance

In a case dealing with a petition filed by a city in connection with a referendum challenging a zoning ordinance, the California Supreme Court summed the case up as being one about how to reconcile state land use law with the people’s referendum power. The Court held that the people of a county or city can use a referendum to challenge a zoning ordinance amendment adopted by the local government that would bring that ordinance into compliance with an amendment to the local General Plan, despite the fact that such a referendum would temporarily leave in place a zoning ordinance that is inconsistent with the General Plan. [City of Morgan Hill v. Bushey, ___Cal.5th___, Case No. (Cal. Aug. 23, 2018).]


Factual Background

The case arose when the City of Morgan Hill (City) amended its General Plan to change the land use designation of a vacant lot from industrial to commercial. The reason for the change was to develop a hotel—although the property’s zoning designation remained unchanged after the General Plan amendment. Eventually, the city council approved a zoning ordinance that also changed the property’s zoning to commercial, although there were 12 other potential commercial zoning designations available in the City. A hotel coalition gathered over 4,000 signatures supporting a referendum petition to challenge the ordinance.

Following filing of the referendum petition by the hotel coalition, the city council directed the city clerk to discontinue processing the referendum because it would result in “enacting zoning that was inconsistent with” the City’s General Plan. The hotel coalition sought to force a repeal of the City’s zoning ordinance, arguing that the City should change the zoning designation for the property to one that is consistent with the General Plan and does not permit hotel use, or that it alter the General Plan altogether. The City filed suit to remove the referendum from the ballot and to certify the zoning ordinance.

The trial court agreed with the City and developer, relying on deBottari v. City of Norco,171, Cal.App.3d 1204 (1985), which held that the type of referendum at issue in this case would “enact” an invalid zoning ordinance that is inconsistent with the General Plan.The Sixth District Court of Appeal reversed the trial court and held that:


  • . . .a referendum petition challenging an ordinance that attempts to make the zoning for a parcel consistent with the parcel’s General Plan land use designation is not invalid if the legislative body remains free to select another consistent zoning for the parcel should the referendum result in the rejection of the legislative body’s first choice of consistent zoning concluded.

According to the Sixth District, the general rule and reasoning, established in deBottari was “flawed.”


The Supreme Court’s Opinion

The California Supreme Court phrased the question before it as:


  • . . .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.

In short, the Court concluded that the people of a local municipality can 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 the General Plan consistent through other means. In reaching this ruling, the Court expressly disapproved the reasoning in deBottari and pointed to Government Code § 65860(c) that expressly authorizes the existence of an inconsistency between a General Plan amendment and local zoning for a “reasonable time” after such an amendment.

In interpreting Government Code § 65860(a), the Court explained that a referendum does not “enact” or “revive” the inconsistent zoning, thus making the reasoning in the deBottari line of cases inapplicable. Rather, a successful referendum rejects the zoning amendment before it takes effect—meaning that the prior zoning was never eliminated. The Court also explained how the “reasonable time” provision in § 65860(c) can be harmonized with the referendum powers, concluding that the provision:


  • . . .is best read as compatible with use of referendums, rather than as an oblique way to specifically exclude the use of referendums.

The Court ultimately remanded the case back to the Court of Appeal, with directions to remand to the trial court to answer whether other existing or new zoning or General Plan designations were available to achieve consistency with the General Plan and the referendum.


Conclusion and Implications

This case offers important judicial guidance on the longstanding issue of reconciling local government land use decisions with the referendum and initiative powers reserved to the people by the California Constitution. The Supreme Court’s finding that the power of referendum prevails despite a resulting inconsistency with the local General Plan will undeniably set a significant precedent for future land use consistency cases to come. The opinion may be accessed at:

(Nedda Mahrou)