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City of Morgan Hill v. Bushey

California Court of Appeals, Sixth District

May 30, 2017

CITY OF MORGAN HILL, Plaintiff and Respondent,
v.
SHANNON BUSHEY, as Registrar, etc., et al., Defendants and Respondents RIVER PARK HOSPITALITY, Real Party in Interest and Respondent; MORGAN HILL HOTEL COALITION, Real Party in Interest and Appellant.

         Superior Court of Santa Clara County, No. CV292595 Honorable Theodore C. Zayner Judge

          Attorneys for Plaintiff and Respondent, City of Morgan Hill: Katherine A. Alberts Louis A. Leone Ionan Mondescu Leone & Alberts Donald Alan Larkin Office of the City Attorney

          Attorneys for Defendant and Respondent, Shannon Bushey, as Registrar of Voters, etc.: James R. Williams County Counsel Steve Mitra Assistant County Counsel Danielle Luce Goldstein Deputy County Counsel

          Attorney for Defendant and Respondent, Irma Torrez, as City Clerk, etc.: Scott D. Pinsky Law Offices of Gary M. Baum

          Attorneys for Real Party in Interest and Respondent, River Park Hospitality: Jolie Houston Thomas P. Murphy Berliner Cohen, LLP

          Attorneys for Real Party in Interest and Appellant, Morgan Hill Hotel Coalition: Asit S. Panwala Law Office of Asit Panwala Jonathan Randall Toch J. Randall Toch, Attorney at Law

          Mihara, J.

         Appellant Morgan Hill Hotel Coalition (Coalition) appeals from the superior court's order granting a mandate petition brought by respondent City of Morgan Hill (City) and removing from the June 2016 ballot Coalition's referendum challenging City's ordinance changing the zoning for a parcel owned by respondent River Park Hospitality (River Park). Although Coalition's referendum had properly qualified for placement on the ballot, City claimed that the referendum was invalid because, if the electorate rejected the ordinance, it would create an inconsistency between the zoning for the parcel and the general plan's land use designation for the parcel. On appeal, Coalition contends that a referendum that seeks to prevent a zoning change from taking effect does not create an inconsistency with a general plan's land use designation but merely maintains the preexisting status quo. The superior court relied on deBottari v. City Council (1985) 171 Cal.App.3d 1204 (deBottari) in rejecting Coalition's position. We disagree with deBottari and hold 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.

         I. Background

         This case concerns a vacant parcel at 850 Lightpost Parkway in Morgan Hill owned by River Park. The land use designation for this parcel in City's general plan was “Industrial” until November 2014. In November 2014, City amended its general plan to change the land use designation for this parcel to “Commercial.”[1] The parcel's zoning was “ML-Light Industrial” before the November 2014 general plan amendment and remained unchanged after the general plan amendment.

         In April 2015, City's city council approved Ordinance no. 2131 (O-2131). O-2131 would have changed the parcel's zoning from ML-Light Industrial to “CG-General Commercial.” The “General Commercial” zoning would have permitted a hotel on the parcel. “General Commercial” is just one of a number of commercial zoning districts in City. On May 1, 2015, Coalition submitted a timely referendum petition challenging O-2131. The stated purpose of the referendum was to prevent the development of a hotel on the parcel. On May 20, 2015, City adopted a resolution accepting a certificate of sufficiency as to the referendum. In July 2015, City “discontinue[d] processing” the referendum because City believed that the referendum “would enact zoning that was inconsistent with” City's general plan. City nevertheless recognized that it could change the parcel's zoning to “Highway Commercial” rather than “General Commercial” and be consistent with the general plan's “Commercial” land use designation for the parcel.

         In February 2016, City reconsidered its position. It 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.” City filed this action in March 2016 seeking to remove the referendum from the June 2016 ballot.

         On March 29, 2016, the superior court, relying on deBottari, granted City's petition. It found that 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 ...


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