In City of Morgan Hill v. Bushey (2018) 5 Cal.5th 1068, the California Supreme Court upheld the decision of the court of appeal, and ruled that voters can challenge a zoning ordinance by way of referendum, even if this results in a more prolonged period of inconsistency between the zoning ordinance and general plan, at least when local government has other means available to them to make the zoning ordinance and the general plan consistent. Furthermore, the referendum process does not violate a Planning and Zoning Law provision (Gov. Code, § 65860) which mandates that inconsistencies between a zoning ordinance and a general plan be reconciled within a “reasonable time.” The court remanded the matter back to the trial court to resolve whether there were other means available to the local agency to make the general plan consistent with the referendum, should it be successful. Justice Chin filed a brief concurrence.
In making this ruling, the court expressly disapproved of deBotarri v. City of Norco (1985) 171 Cal.App.3d 1204 and cited with approval the reasoning of the recently decided Save Lafayette v. City of Lafayette (2018) 20 Cal.App.5th 657.
Factual and Procedural History
In November 2014, the City of Morgan Hill amended its general plan to change the land use designation of a vacant parcel from industrial to commercial, in order to allow the applicant to develop a hotel on the site. The zoning designation in the zoning code, ML-Light Industrial, remained unchanged. In April 2015, the city council voted to approve a zoning change for the site from ML-Light Industrial to CG-General Commercial, to make the zoning consistent with the amended General Plan. General Commercial is one of 12 potential commercial zoning designations in the city. Shortly afterwards, voters successfully petitioned to put forward a referendum challenging the zoning ordinance change. However, the city council directed the city clerk to discontinue processing the ordinance, believing it would make the General Plan and zoning ordinance inconsistent. In 2016, the council placed referendum on the ballot, and petitioned for a writ of mandate to have the referendum invalidated.
The trial court found for the city, relying on deBotarri for the proposition that a referendum is invalid when it would enact a zoning ordinance that is inconsistent with the general plan.
The Sixth District Court of Appeal reversed in a published decision, City of Morgan Hill v. Bushey (2017) 12 Cal.App.5th 34. The court of appeal expressly disagreed with deBotarri’s holding that referendums are always invalid if they reject a zoning ordinance which was enacted by the local government in order to bring a property’s zoning into compliance with the jurisdiction’s general plan. The California Supreme Court granted review.
The Supreme Court Decision
The California Constitution reserves the power of referendum for the people. It allows voters to approve or reject statutes, or parts of statutes, including enactments by local government. This power is subject to a “limited preemption” by the Legislature, and can only be abrogated by a “definite indication” or “strong showing” that preemption was intended. Local control over land use is subject to the State Planning and Zoning Law (Gov. Code, § 65000 et seq.), which mandates that the land use element of a general plan must be consistent with local zoning ordinance, and that if an inconsistency exists, that it be reconciled within a “reasonable time” (Gov. Code, § 65860). The statutory scheme does not define “reasonable time” or give benchmarks for determining when the passage of time becomes unreasonable. To avoid the uncertainty inherent in such inconsistencies, the Government Code strongly encourages simultaneous general plan amendments and zoning code changes, although this is not required.
The core question is whether the Legislature, in enacting Government Code section 65860, intended to preempt the power of referendum, such that voters would be prohibited from placing a referendum on the ballot that, if successful, would prolong or create a create an inconsistency between the zoning and the general plan. A related question is whether a “reasonable time” to bring a general plan and a zoning ordinance into harmony can include the time to hold a referendum, and, if successful, pursue another means of making the general plan and zoning consistent.
The court accepted the petitioner’s contention that, generally, local voters can exercise their referendum power without creating a conflict with section 65860, at least when there are other zoning designations available that would be consistent with the general plan. In announcing this rule, the court rejected defendant’s supposition that a successful referendum “revives” an out-of-compliance zoning ordinance, because a referendum does not enact a law. Rather, a successful referendum merely rejects an amendment before it takes effect. Here, even though the referendum sought to overturn the new, consistent zoning designation, the referendum would not be invalid because the original designation was valid when it was enacted (that is, the general plan amendment created the inconsistency, a situation which the Government Code permits, for a “reasonable time”).
The court acknowledged that a referendum such as this creates or prolongs a period of inconsistency between a general plan and the applicable zoning, but the Government Code allowed for such periods “to ensure an orderly process of bringing the regulatory law into conformity…”(quoting Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, 546 (Lesher)). Relatedly, while the “reasonable time” allowed for city or county to conduct an “orderly process” is not defined, the court reasoned that the term was context-dependent, and, given the court’s duty to protect the referendum power, a “reasonable time” within the meaning of section 65860 must include 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 consistent with the referendum.
Answering the questions before it as it did led the court to expressly disapprove of the reasoning in deBottari and its progeny, because, although Government Code section 65860, subdivision (a) voids enactments, including initiatives from creating zoning ordinances inconsistent with the general plan, a referendum that creates a temporary period of inconsistency falls within the exception in subdivision (c) of that statute. The court also rejected the city’s argument that allowing the referendum could create a period of inconsistency lasting months if not years, finding that its duty was to harmonize, to the extent possible, the government code with the referendum power. Moreover, the inconsistency could be avoided altogether by amending the general plan and zoning code simultaneously, as suggested in the Government Code itself.
Consistent with its general rule, the court provided guidance on the types of tools that local governments have available to maintain consistency. Here, the city has twelve potential other commercial zoning designations, six of which allow hotels. The city and the petitioners disagreed as to the extent that the other zoning designations were viable for this site, but that issue was never addressed by the trial court. Nor did either party fully address the possibility that the city could create a new zoning designation that would be compliant with the general plan as amended, if no current zoning options were suitable. For these reasons the court remanded the case back to the trial court to determine whether it would be impossible for the city to make the zoning ordinance and general plan consistent.
The court also stated that the city could amend its general plan to make it consistent with zoning ordinance, and the referendum. The court noted that, in Lesher, supra, 52 Cal.3d 531, it had determined that an initiative instituting an invalid zoning ordinance cannot be used to alter a general plan, but the question of whether a referendum would be void if the city or county’s only option was to amend the general plan had not been answered. Nor did the court consider whether a local government could show that it would be futile to amend the zoning code, because no zoning designation consistent with the general plan amendment would be consistent with the intent of the referendum.
Justice Chin’s brief concurrence noted that a remand might not have been necessary, given that there appear to be other designations available. But, he acknowledged that the city could still challenge the validity of the referendum, if the city could establish that it would be impossible to make the general plan and zoning code consistent, should the referendum succeed.
Sara F. Dudley