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California’s Sixth District Court of Appeal Upholds Referendum Challenging Zoning Change

The wave of populism that gave California the initiative and referendum continues to reverberate in local land use issues. Something as routine as a rezoning can trigger a response by the electorate. The Sixth District Court of Appeal recently handed down City of Morgan Hill v. Bushey, a case showing the intricacies of the intersection between the referendum and principles of land use law. It also creates a split in California authority, thus setting up the potential for future action by the California Supreme Court. [City of Morgan Hill v. Bushey, ___Cal.App.5th___, Case No. H043426 (6th Dist. May 30, 2017).]

In November 2014 the city council amended the city’s General Plan to change the land use designation for a parcel from Industrial to Commercial. The parcel was zoned ML-Light Industrial before the change, and the city did not amend the zoning at the time it updated the General Plan.

In April 2015 the city council approved ordinance O-2131, which changed the zoning from ML-Light Industrial to CG-General Commercial, one of a number of commercial designations available under the city’s zoning ordinance. CG-General Commercial would allow a hotel on the parcel, which was a matter of some controversy.

Accordingly, on May 1, 2015 the defendants submitted a referendum petition to overturn ordinance O-2131. The city initially accepted the resolution but shortly reversed course on the grounds that the referendum would enact a zoning designation that was inconsistent with the General Plan. The city then split the difference by calling for an election on the referendum while also suing the defendants to have the referendum removed from the ballot.

Relying on an earlier decision out of the Fourth District, de Bottari v. City Council, 171 Cal.App.3d 1204 (1985) the trial court upheld the city’s challenge to the referendum, and the defendants appealed.

The Sixth District Court of Appeal began its analysis by discussing the nature of the referendum power under the California Constitution. The voters are empowered to use referenda to approve or reject legislative acts. A referendum does not enact law; that power is limited to the initiative process. Where a referendum petition is timely filed it suspends the ordinance in question and requires the legislative body to reconsider its act. The body can repeal the ordinance or put the referendum to the voters.

The City of Morgan Hill case comes down to the nexus of two legal principles: First, zoning must be consistent with the jurisdiction’s General Plan; Second, rezoning is legislative in nature and thus can be put to a referendum. What happens when failing to rezone results in an inconsistency between the zoning and the General Plan where, as in City of Morgan Hill, the legislative body had previously amended the General Plan so as to make the zoning inconsistent?

The court resolved that question by looking to Government Code § 65860, subdivision (c).

That provision reads “In the event that a zoning ordinance becomes inconsistent with a General Plan by reason of amendment to the plan, or to any element of the plan, the zoning ordinance shall be amended within a reasonable time so that it is consistent with the General Plan as amended.”

The Sixth District read this to mean that a referendum could be used to put a pause on rezoning for consistency purposes, at least so long as there was more than one zoning district that could be consistent with the General Plan.

In other words, because § 65860 gives cities and counties a “reasonable time” to bring zoning in line with a revised General Plan, the referendum power could be validly exercised to hold up a rezoning.

Rejecting the Fourth District Court’s de Bottari v. City Council Decision

In reaching this decision the Sixth District rejected the prior Fourth District case, de Bottari v. City Council, 171 Cal.App.3d 1204 (1985). Contra de Bottari, the Sixth District reiterated that a referendum could not enact a zoning ordinance; thus, it could not create an inconsistency with a General Plan in the first instance.


The City of Morgan Hill decision is short and to the point, and its analysis of the issues is cogent and more persuasive than that of de Bottari. Having set up a split between the District Courts, it will be interesting to see if the California Supreme Court takes up the question of the use of a referendum to stop rezoning for consistency purposes. This is likely not an issue of regular recurrence, however. In the meantime, those who oppose such re-zonings will be empowered by City of Morgan Hill to use the power of the ballot to make their voices heard. The court’s decision is accessible online at:

(Matthew Henderson)