MORGAN HILL, CITY OF v. BUSHEY

Real Party in Interest, Morgan Hill Hotel Coalition, Answer Brief on the Merits

Cal.November 20, 2017

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA CITY OF MORGANHILL,a municipality, Plaintiff/Respondent, APPELLANT MORGANHILL HOTEL COALITION’S ANSWER VS. BRIEF SHANNON BUSHEY, REGISTRAR OF VOTERS FOR SANTA CLARA CASE NO.: 8243042 COUNTY,et al., SIXTH DISTRICT NO.: H043426 Respondents/Defendants. SUPERIOR COURT NO.: 16CV292595 MORGANHILL HOTEL COALITION,an unincorporated association, SUPREME COURT FILED NOV 20 2017 Jorge Navarrete Clerk Real Party in Interest/Appellant. RIVER PARK HOSPITALITY,INC.; Real Party in Interest/Respondent. Deputy ASIT S. PANWALA(SBN:224118) LAW OFFICE OF ASIT PANWALA 4 Embarcadero Center, Suite 1400 San Francisco, CA 94111 (415) 766-3526 asit@panwalalaw.com J. RANDALL TOCH (SBN:124547) TOCH LAW FIRM P.O. Box 66 Morgan Hill, CA 95038 (408) 762-9712 tochlawfirm@gmail.com Attorneys for Appellant/Real Party In Interest MORGANHILL HOTEL COALITION TABLE OF CONTENTS Question Presented ..............c cecececeeeenea tas 8 Introduction.........c ccc cece eee cece cence ene nen EEE EE EERE EEE EEE EEE EEE EEE EEE ES 8 Statement of Facts............ccccecc cece eee e eee een ene e eens nee een ne ence e teense ene es 10 Statement of the Case...........c cece eee eee n ee e eee eeneee ne Ene ene eee Et eats 13 Memorandum of Law........cccccccece cece een eee n eee een nnn Een ener ES 17 I. The Standard of Review Is De NoV0.......:::::c0cceeeeeeeeeeee ee eenecesseee lh 7 Il. The Right To Exercise The Power OfReferendum Is Enshrined In The California Constitution..........0....cc cee cece cece ecsensensetseeeseseesereee dl 7 A. The 1911 Amendment Allows Voters To Pass Judgment Upon Acts Of The Legislature And To Prevent Objectionable Measures From Taking Effect.................ccceeeeee eee ee eee een ees 19 B. Referenda Do Not Enact Legislation Unlike An Initiative.........19 C. The Courts Must Construe The Referendum PowerLiberally Because It Is A Power Reserved To The People..................421 Ill. Zoning Is A Legislative Act Subject to Referendum Even If The Act Seeks To Comply With State Law.......ccccccsseceseereeeeeesseees22 A. Local Governments Exercise Discretion Under Section 65860....24 B. Zoning Ordinances Are Not Effective Immediately Because They Are Subject To Referendum..............-.::scseeeeeeeeee rece en25 C. Legislative History of Section 65860 Does Not Restrict The Right To Referendum................0cceeeeeee eset eres eee eee eee e eens26 IV. _ The Voters’ Right To Exercise The Power OfReferendum Should Be Co-Extensive With The Legislative Power Of The City............26 V. The Petition For Referendum Prevented Ordinance-2131 From Becoming Effective, And Thus The Zoning Of The Parcel Remains “ML-Light Industrial”................:ceecee cece ee ne eee ee eee eens28 VI. VII. A. Courts Have Upheld The Stay Provision Of Elections Code § 238Tccce eect ence eee enn c en EEE Eee ene e een eter Estee ES 28 B. Ordinance-2131 Shall Not Become Effective Until A Majority Of Voters ApproveIt........ 0... cece eee e cence eee t teat teeeeenenees29 Voters May Reject The City’s Choice ofZoning When Other Commercial Zoning Districts Also Conform To The Recent General Plan Amendment................ 2. cece ccc ne cence ene e senate ena e eee29 A. The City’s Legislative Act Should Not Be Immune From Referendum WhenIt Attempts To Remedy The Inconsistency It Created......... cece ccece eect eee n cence een eee e een eee e nent ea naes 31 B. The Purpose Of ThePetition Is To Prevent Hotel Use.............32 C. There Are Eleven Other Commercial Zoning Districts In The City’s Zoning SchemeIncluding Several That Do Not Permit Hotel Use..........ccececcece eee c cence eee ne eee e ese ea eee ne ena e eet eeeeeees34 D. The Chandis Court Held That A Rule Declaring That Voters Cannot Reject One Of Several Choices Would Renderthe Exercise Of The Power OfReferendum Meaningless...............36 E. The City Plays Word Games And Argues Rejecting The Ordinance Restores, Revives Or Re-Enacts Inconsistent ZONING... 00. c cece ccc e nee e eee eee ne eens n eee e een ee ene ee tence rene ea enees38 F. Lawfully Enacted Zoning That BecomesInconsistent As A Result OfA General Plan AmendmentIs Not Invalid..............39 G. The Consistency Requirement Will Be Satisfied Within A Reasonable Period OfTime Regardless of Whether The Voters Approve Ordinance-2131 2.0.0.0... cece eee e eee e neces40 H. Failing To Object To The General Plan Amendment Or Legislating By Initiative Is Not A Waiver/Substitute For The Constitutional Right To Referendum....................000 eee41 Following deBottari Would Change A Referendum Into An [nitiative...... 0... cece cece cece eee eee eee tere ee ence cert eee eenee eee eea eas42 A. There Were No Other Zoning Districts Available In deBottari That Would Conform To The Recent General Plan AMendmMent............c cece ce ceeecceceeecteusecececeeceneeseceeenaeceuea 43 B. The debottari Court Erroneously Held That Rejecting A Proposed Zoning Ordinance Would Enact Inconsistent Zoning That Could Not Be Rescuedby Section 65860(c)...................44 C. The City’s Zoning Scheme Has Twelve Different Commercial Zoning Districts, And Thus This Court Should Permit the Voters To Reject The City’s First Choice Of Zoning................44 VIII. Court Should Award Attorney’s Fees and Costs to the Coalition In Accordance With The Code Of Civil Procedure §1021.5..............45 500066)C01)(0)1ana46 Verification. .........ccccccccccccccecccceteenuecnneeseeseeunecececteeeeeeceesussessetessessesess47 TABLE OF AUTHORITIES Cases Pages Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185.00... ccc ccc ecee cece ere eee ene ene ne eee 17 Assembly v. Deukmejian (1982) 30 Cal.3d 638...............006 19, 38-39 Associated Home Builders, etc. Inc. v. City ofLivermore (1976) 18 Cal.3d 582.0...cece ee eee e cence ne eens 17 Brosnahan v. Eu (1982) 31 Cal.3d 1....... cece eee eee eens22 Busch v. Turner (1945) 26 Cal.2d 817.002... 0. cece cece eee e eee28 California Cannabis Coaltion v. City of Upland (2017) 3 Cal.Sth 924.00...ce ence nee cece teeter notes teen een es 22, 26 Carlson v. Cory (1983) 139 Cal.App.3d 724...........cccce cece20 Chandis Securities v. City ofDana Point (1996) 52 Cal.App.4th 475....... cece eee ee cece ents nsec nena nee en eees 36-40 City ofIrvine v. Irvine Citizens Against Overdevelopment (1994) 25 Cal.App.4th 868......... 2... eee cece eee eees42 City ofMorgan Hill v. Bushey (2017) 12 Cal.App.5th 34..........Passim deBotarri v. City ofNorco (1985) 171 Cal.App.3d 1204.........Passim DeVita v. County ofNapa (1995) 9 Cal.4th 763.............:.000823-24, 26 Fair Political Practices Com. v. Superior Court (1979) 25 Cal.3d 33.0.0... ccccsscsscessesseeceeeccseeseee seeeauerenesaceeseeeaeenneseseeets22 Gayle v. Hamm (1972) 25 Cal.App.3d 250.............:ce cece seers22 Gilliland v. County ofLos Angeles (1981) 126 Cal.App.3d 610......... cece cece cee ee eee cara eaten eens41 Hersh v. State Bar ofCalifornia (1972) 7 Cal.3d 241.............38 Housing Authority v. Superior Court (1950) 35 Cal.2d 550.......27 Hughesv. City ofLincoln (1965) 232 Cal.App.2d 741.............23 Lesher Communications, Inc. v. City of Walnut Creek (1990) 51 Cal.3d 531.0...eee cece cece eee nee e ees 26, 39 Lindelli v. Town ofSan Anselmo (2003) 111 Cal.App.4th 1099.0...eectseee eeeeeneeneeees28-29, 35 Lockard v. City ofLos Angeles (1949) 3 Cal.2d 453.............30 Mervyn v. Acker (1961) 189 Cal.App.2d 558..............:se eee21 Midway Orchards v. County ofButte (1990) 220 Cal.App.3d 765.0... eeecessee ceneceesesessesereeseeneeens 9, 17-18, 28, 38 Norlund v. Thorpe (1973) 34 Cal.App.3d 672............:.. 0.0028 Votersfor Responsible Retirement v. Trinity County (1994) 8 Cal.4th 765.000...ce cece cece ee eee ee eee eees25 Yost v. Thomas (1984) 35 Cal.3d 561.......... cee cece eee ees 8, 22-25, 27 Constitution Article ID, § 9.0.0.0... cc cece ccc ee eee cece neces cere ne nena enna eens ee eaee 8,18 Article I], § 9(a)........ 0. ccececc een eect eee cnet eee renee nent eae 18, 25, 41 Article IL, § 10(a)...........ccececeece cette ee ce eeeene eee eneteeeneneaae 38, 40, 44 Article II, § 11 (a)........ccccccccee cece eee etee ceeeeeeee snes eneeee onan ea 18 Article IV, § 1 (1911 Amendment) ......0.000s8, 17-19, 42 References Ballotpedia.org, California Initiative and Referendum, PropositiON 7.......... cece cee e eee cee eee ceca ene ee ence renee eeene 19 California Secretary of State, Statement of Vote, 1911........... 19 U.C.Hastings Scholarship Repository, Voter Information Guide for 1911, General Election......9, 19 Statutes Codeof Civil Procedure § 1021.5......... 2. ceece ee eee eee e eens45-46 California Coastal Act of 1976.0... 0.0... cece eee e eee eee eee23-25 Elections Code § 9235...........ccccceeeeeee cee sere tect eee e nee ne ee eans20, 25 Elections Code § 9237...........cccecceceeee cneeeree rest eae eseneeeeneesPassim Elections Code § 9241.......... cece eee cee ee cence reece cents eee e ee ee eesPassim Government Code § 65000 et seq.......... cece ese ee cence ee ee eaee37 Government Code § 65800............ 0. ccc ccc ceceee eee e nsec eee n eee ees24 Government Code § 65860...............cc eee enee eee ene ee eee ne eee eensPassim Government Code § 65860(C)...........::e cece eee es ee eee nee eee eee enees 39-40, 42, 45 Government Code Section 65862..............:cceccce cece eee e eee eeeaes25, 31 Morgan Hill Municipal Code Chapter 18...............:0:. cece eee 12, 34 QUESTION PRESENTED Canthe electorate use the referendum process to challenge a municipality’s zoning designation for an area, which was changed to conform to the municipality’s amended general plan, when the result of the referendum-if successful-would leave intact the existing zoning designation that does not conform to the amended general plan? INTRODUCTION The right to referendum is enshrined in the California Constitution in Article 2, § 9. The California Constitution was amendedin 1911 to provide the voters with the ability to exercise oversight over legislation passed by local government. This Court hasheldthat zoningis a legislative act subject to referendum. See Yost v. Thomas (1984) 36 Cal.3d 561, 571. The consistency requirement of Government Code § 65 860! cannot serve asa basis for denying to voters their Constitutional power to approveor reject a local zoning ordinance so long as the local governmenthad choiceofdifferent zoning districts to comply with the state-mandated consistency requirement. The City of MorganHill (“City”) exercised its legislative discretion by choosing a specific zoningdistrict from among a dozenpossibilities. Thus the voters have the Constitutional right to reject that choice even if the City is required to subsequently adopt another zoning district. ' Subsequent statutory references are to the Government Codeunlessotherwise specified. Voters exercised their Constitutional rights by signing a petition for referendum regarding a proposed zoning ordinance for a 3.39-acre parcel owned by River Park Hospitality (“River Park”). The petition called for the City to either repeal its proposed Ordinance No. 2131-New Series (“Ordinance-2131”) or to seek voter approval before it may becomeeffective. Ordinance-2131 was the an attempt to change zoning that had becomeinconsistentas the result of a recent general plan amendment. However, rather than allow the voters to exercise their Constitutional powerto approveor reject the City’s choice of zoning, the City 4 instead seeks to prevent an election and asserts that voter approval is unnecessary. The purposeofthe referendum poweris to allow voters to prevent local governments from exercising their discretion to favor specialinterests. U.C. Hastings Scholarship Repository, Voter Information Guide for 1911, General Election. “[T]he power ofreferendum guaranteesto the citizens an ultimate check on legislative power.” Midway Orchards v. County ofButte (1990) 220 Cal.App.3d 765, 779. In this case, the referendum powerprovides the voters with the right to reject the City’s attempt to rezone land for the benefit of a real estate speculator. The City had twelve different commercial zoning districts from which to choose in amending the zoning. Each of those twelve zoning districts permit different types of uses, but all twelve are consistent with general plan use designation of commercial. A rule, which prevents voters from rejecting one of many choices, would render the right to referendum meaningless. Appellant Morgan Hill Hotel Coalition (“Coalition”) urges this Court to protect the Constitutional right of voters to exercise their power of referendum. If the voters approve the referendum measure, then the City’s choice of zoning will becomeeffective and the issue is moot. If the measurefails, then the lawfully enacted, but inconsistent zoning would simply remain until the City chooses another zoning district that conforms to the amended generalplan. STATEMENT OF FACTS In 2010, the City’s general plan’s land use element was updated and established policies to serve as the basis for day-to-day decision making for land use for the next twenty years. Joint Appendix (“JA”) at 145. That general plan update envisioned the undeveloped 3.39-acre parcel (“Parcel”) locatedat Lightpost Way and Madrone Parkway, and the land surroundingit on the North, East and Westside would all remain industrial. JA at 159. In January of 2014, River Park applied for a general plan amendmentfor the Parcel. JA at 401:8-11. The amendment sought to change the general plan’s land use designation from industrial to commercial. JA at 401:8-11. The Parcel is zoned “ML-light industrial.” JA at 17. On November 19, 2014, the City amended the general plan’s land use designation for the Parcel from industrial to commercial. JA at 130-31. However, the zoning for the Parcel remained “ML-light industrial.” On December8, 2014, River Park purchased the Parcel. JA at 465. For several months, the City and River Park allowed the land use inconsistency to exist without concern. 10 On March18, 2015, the City Council passed thefirst reading of Ordinance- 2131, which proposed to amendthe zoning designation of the Parcel from “ML- light industrial” to “CG-general commercial.” JA at 116. Hotel use is permitted with a conditional use permit on land zoned “CG-general commercial.” JA at 410. The Coalition opposed the ordinance because two other hotels would be built soon, increasing the supply of hotel rooms by over twenty percent. JA at 383:8-13. The Coalition also complained that industrial land, which is meant to attract companies and create career opportunities for the residents of Morgan Hill, should not be rezoned for another hotel. JA at 383:8-13. The reading of the ordinance passed by a three to two vote despite the public comments againstit. JA at 116. On April 1, 2015, the City Council again heard public comments against Ordinance-2131, but narrowly adopted the ordinance by a three-to-two vote. JA at 121-22; 301. Ordinance-2131 states it will take effect after thirty days pursuant to section six of the statute. JA at 121. On May1, 2015, the Coalition filed a petition for referendum (“Petition”) against Ordinance-2131 and submitted more than 4,000 signatures. JA at 295. On May 15, 2015, the City Clerk issued a certificate of examination and sufficiency after determining that there were approximately 2,500 valid signatures from registered voters from Morgan Hill. /d. The Petition states that in accordance with “California Elections Code, Section 9237, should the ordinance not be repealed by the City Council it must be submitted to the voters at the next regular election or a at a special election called for that purpose.” JA at 119. 1] On July 15, 2015, the City Council voted to direct the City Clerk to discontinue processing the Petition. JA at 93. It did so, without a court order. Id. River Park then prepared a conditional use permit application to build a hotel. JA at 452. In the fall of 2015, River Park, under the mistaken belief that the Parcel had been rezonedfor hoteluse, listed the Parcel for sale at twice it had paidforit a year earlier. JA at 463-65. On January 13, 2016, the Coalition filed a petition for writ of mandamus compelling the City of Morgan Hill to repeal Ordinance-2131, or place it on the ballot for voter approval.” JA at 401:17-25 (Superior Court No. 16CV290097). On February 17, 2016, the City Council reviewed staff reports that provided alternatives for the Parcel such as choosing another commercial zoning district that does not permit hotel use. JA at 404-5. At that meeting, the Coalition suggested that the City repealits choice of zoning and choose another commercial zoning district that does not permit hotel use in order to remedy the inconsistency. Reporter’s Transcript ofHearing (“RT”) at 6:1-13; 15:2-7.2 Morgan Hill Municipal Code Chapter 18 provides for twelve commercial zoningdistricts 99 66 including, but not limited to, “administrative office,” “service/commercial,”and “light commercial/residential.” JA at 407-31. Thus, the City has eleven other ? The Coalition’s petition for writ of mandamusactionsettled after the trial court issued its ruling in this case. The settlement required the City to reimburse the Coalition for attorneys’ fees and it expressly excluded any right to appealthe trial court’s decision in this second case. 3 The transcript mistakenly includes a “not” before the other zoning options that the Coalition asked the City to consider in place of “CG-general commercial.” 12 commercial zoning districts that it could consider in lieu of “CG-general commercial.” Jd. The City Council also considered amending the general plan land use designation from commercial back to industrial. JA at 405. On March2, 2016, the City Council passed a resolution to submit the referendum to the voters at a special municipal election scheduled for June 7, 2016. JA at 101-03. The proposed referendum measurestates: “Shall the ordinance amending the zoning designation of a 3.39 acre site located at the Northeast corner of the intersection of Madrone Parkway and Lightpost Way from the ML-Light Industrial district to the CG-General Commercial (APN 726-33-026) be adopted?” JA at 319. The City then initiated legal action to remove the measure from the ballot. JA at 101-03. The electorate has not had an opportunity to vote on the measure. STATEMENTOF THE CASE On March 11, 2016, the City filed an action against Shannon Bushey (“Bushey”), the Registrar of Voters for Santa Clara County, and Irma Torrez, City Clerk for Morgan Hill, for an alternative and peremptory writ and declaratory relief to remove the measure from the ballot and certify Ordinance-2131. JA at 13-325. On March 18, 2016, the Coalition filed an opposition to City’s request for alternative and peremptory writ and declaratory relief. JA at 375-431. It argued that the right to referendum is a Constitutional right and zoning is subjectto referendum. JA at 387-88. Byfiling a petition for referendum, the zoning change 13 did not become effective pursuant to the stay provision of the Elections Code § 9237. JA at 391-92. The Coalition also argued thatif the voters rejected the City’s first choice of zoning, the status quo (lawfully enacted) zoning would remain in effect until the City adopts another one of the commercial zoning districts within its zoning scheme. JA at 391-95. Thus, the Government Code’s consistency requirement and the Elections Code’s one-year prohibition on enacting the same statute would eachbesatisfied, as the City would select another commercial zoning district that does not permit hotel use. JA at 393. On March 18, 2016, Santa Clara County Counselreplied on behalf of Bushey,Registrar of Voters, and that the Registrar did not take a position on the question of whether or not the referendum should remain on the ballot.’ JA at 433-44. However, Bushey warnedthat there are strict time deadlines for finalizing the ballot for printing. JA at 434-35. On March 22, 2016, River Park replied that there is a need for certainty in zoning, and it had incurred fees and costs because of its mistaken belief that the zoning had changed. JA at 446-453. On March 24, 2016, the Hotel Coalition replied that River Park knew the Parcel was zoned industrial when it bought it, and thus it could not complain the zoning wasnot changedfor its benefit. JA at 456-64. It also noted that River Park * The Registrar of the Voters has also filed a brief in this matter in the Supreme Court taking no position. 14 had not received any permits, and thus it had no legal expectation that it may build a hotel on the site. JA at 457-58. In its reply, the City argued that it was irrelevantthat the City could remedy the inconsistency by choosing another commercial zoning district if the voters failed to approve the City’s first choice of zoning. JA at 475. The City never contested that there were eleven other commercial zoning districts available. JA at 467-77. Rather, it argued that the number of potential choices wasirrelevant. JA at 475. Instead, the City argued that it could not choose another commercial zoning district for a year because the true purpose of the referendum wasto preserve industrial land. JA at 476. The City based its position upon an unpublished ballot argument and claimed that the Coalition misstated the true purposeofthe referendum. JA at 476. The unpublished ballot argumentlists multiple reasons why the voters should reject the measure:the city does not need a new hotel, the developer would receive a financial windfall of $2 million dollars, and the City spent $75,000 trying to help the developer. JA at 482. Atthe hearing, the parties agreed that the existing ““ML-light industrial” zoning is inconsistent with the general plan land use designation of commercial. RT at 4:22-23. The Coalition argued that voters may reject one ofmany choices that would conform to the amended general plan. RT at 5:4-15. Relying upon deBottari, the trial court held “that the result of the voters’ rejection of the proposed — and consistent — ordinance would be a zoning inconsistent with the City’s general plan - and thus clearly invalid.” JA at 485; see 15 deBottari v. City ofNorco (“deBottari’’) (1985) 171 Cal.App.3d 1204, 1212-13. Thetrial court did not make any findings regarding the purpose of the referendum. JA at 484-87. Thetrial court concluded that a compelling showing had been made that the proposed referendum is invalid and ordered it removed from the ballot. JA at 484-87. The Coalition appealed. JA at 495. The Sixth District Court of Appeal (“Sixth District”) reversed the trial court. City ofMorgan Hill v. Bushey (2017) 12 Cal.App.5th 34, 43. It held found that the reasoning in deBottari is flawed and ruled that a referendum doesnot enact legislation. City ofMorgan Hill at 42. “A referendum that rejects an ordinance simply maintains the status quo.” Jd. at 42. Thus, a referendum cannotviolate Section 65860, which prohibits the enactment of an inconsistent zoning ordinance. Id. at 42. Further, “section 65680 permits maintenance ofinconsistent zoning pendingselection of a consistent zoning.” Jd. Thus the Sixth District held that, “section 65860 does not automatically render invalid a preexisting zoning ordinance that becameinconsistent only after a subsequent general plan amendment.” Jd. The Sixth District also found that the City’s discretion to adopt zoning was not preempted by Section 65860’s mandate that the parcel’s zoning be consistent with the general plan, because Section 65860 did not require the City to adopt “CG-general commercial.” Jd. at 40. “[I]t was undisputed that City could have selected any of a numberof consistent zoning districts to replace the Parcel’s inconsistent zoning, section 65860 did not preclude the City or the electorate from 16 rejecting the one selected by the City.”” Id. at 41. Thus, the Sixth District held that Petitioner failed to establish that the proposed referendumis clearly invalid and reversed the trial court. /d. at 42. The City and River Park then petitioned for a rehearing. Inits petition, the City concededthat it has six other commercial zoning districts that do not permit for hotel use, but argued that those districts were not suitable for the Parcel’s location. City’s Petition for Rehearing at 8-12. However, the City also conceded that there is at least one commercial zoning district that would conform to the amendedgeneral plan, does not allow for hotel use, and may be suitable for the Parcel’s location. Jd. at 11. The Sixth District denied the petitions for rehearing. MEMORANDUM OF LAW I. STANDARD OF REVIEW IS DE NOVO The issue is one of law requiring de novo review. Aryeh v. Cannon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1191. Il. THE RIGHT TO EXERCISE THE POWER OF REFERENDUMIS ENSHRINEDIN THE CALIFORNIA CONSTITUTION The power of referendum wasestablished in the California Constitution by amendmentofarticle IV, § 1 in 1911 (hereafter 1911 Amendment). Midway Orchards v. County ofButte (1990) 220 Cal.App.3d 765, 776 (citing Association HomeBuilders, etc., Inc., v. City ofLivermore (1976) 13 Cal.3d 582, 591). The > The Sixth District expressed no opinion onthe validity of a referendum challenging an ordinance that chooses the only available zoning that is consistent with the general plan. /d. at 42,fn 4. 17 1911 Amendmentreserved to the People the right to enact legislation by initiative and challenge legislation by referendum.It states in pertinent part: “[T]he people reserve to themselves the powerto propose laws and amendments to the Constitution, and to adoptor reject the same,at the polls independent of the Legislature, and also reserve power,at their own option, to so adopt or reject any act, or section or part of any act, passed by the Legislature. ..[{]] The initiative and referendum powersofthe people are hereby further reserved to the electors of each county, city and county, city and town of the State to be exercised under such procedure as may be provided by law... This section is self-executing, but legislation may be enactedto facilitate its operation, but in no way limiting orrestricting either the provisions ofthis section or the powers herein reserved.” Midwayat 776-77 [citations omitted] (italics added). Theright to referendum is the powerto “adopt or reject any act, or section or part of any act, passed by the Legislature.” Midway at 780. The 1911 Amendment expressly states that legislation may notlimitorrestrict the right to referendum to adopt or reject any legislative act. Cal. Const. Art. IV, § 1. The right to exercise the power of referendum is now found in Article II,§ 9 of the California Constitution. It states “the referendum is the powerofthe electors to approve or reject statutes except urgencystates, statutes calling for elections and statutes providing for tax levies or appropriation for usual current expensesofthe state.” Cal. Const. Art. II, § 9(a). “The powersofinitiative and referendum maybe exercise by the electors in each city or county...” Cal. Const. Art. II, § 11(a) (italics added). 18 A. The 1911 Amendment Allows Voters To Pass Judgment Upon Acts OfThe Legislature And To Prevent Objectionable Measures From Taking Effect The electorate voted on Proposition 7 on October 10, 1911, adding the 1911 Amendmentto the California Constitution. California Secretary ofState, “California Statement of Vote, 1911.” Assemblyperson William Clark and Senator Lee Gates provided ballot arguments in favor of the Amendment. U.C. Hastings Scholarship Repository, Voter Information Guide for 1911, General Election. The proponents argued that the law would reflect the will of the People if power were given to the People to pass judgment upontheactions of the legislature, and to prevent objectionable measure from taking effect. Jd. They also argued that it would be “unsafe and profitless for legislators to bargain with private interests or to violate the people’s rights; because the people have the powerofratification or rejection.” Jd. The Proposition passed with 76% ofthe vote. Ballotpedia.org, California Initiative and Referendum, Proposition 7. The reasonsfor the referendum are demonstrated by this case in which the City is placing the monetary interest of a single developer over the will of the People. B. Referenda Do Not Enact Legislation Unlike An Initiative Theright to referendum is the powerofthe electors to approve orreject statutes enacted by their legislators. Assembly v. Deukemejian (1982) 30 Cal.3d 636, 656-57. Referenda do not enact law and may not address certain subjects. City ofMorgan Hill at 39. In contrast, the electorate may legislate on any subject 19 by initiative. Carlson v. Cory (1983) 139 Cal.App.3d 724, 728. Thus, the fundamental difference is that voters may challenge a statute by referendum,but to enact their own statute, they must do so byinitiative. An ordinanceis not effective for a period of thirty days afterits final passage to enablethe electorate to challenge the ordinance. Elections Code § 9235.° Statutory exceptions to referendum becomeeffective immediately upon passage by the legislature. /d. A petition for referendum in a city with the population of Morgan Hill must be signed by 10% ofthe registered voters and filed with the city clerk within thirty days of the final passage of the ordinance. Elections Code § 9237.’ If a referendum petition challenging an ordinanceis timely filed and certified to be sufficient, the “effective date of the ordinance shall be suspended andthe legislative body shall reconsider the ordinance.” Id. (italics ® Elections Code § 9235 states: “No ordinance shall becomeeffective until 30 days from andafter the date ofitsfinalpassage, except: (a) An ordinance calling or otherwise relating to an election. (b) An ordinance for the immediate preservation of the public peace, health or safety that contains a declaration of, and the facts constituting, its urgency and is passed by a four-fifths vote of the city council. (c) Ordinancesrelating to street improvement proceedings. (d) Other ordinances governed by particular provisions of state law prescribing the matter of their passage and adoption.”(italics added). 7 Elections Code § 9237states: “If a petition protesting the adoption of an ordinance and circulated by a person who meets the requirements of section 102, is submitted to the electionofficial ofthe legislative body of the city in his or her office during normal office hours, as posted within 30 days of the date the adopted ordinanceis attested to by the city clerk or secretary of the legislative body, andis signed by notless than 10 percent of the voters ofthe city according to county election official’s last official report of registration to the Secretary of State...the effective date ofthe ordinance shall be suspended andthe legislative body shall reconsider the ordinance.”(italics added). 20 added). If the legislative body does not entirely repeal the ordinance, the legislative body shall submit the ordinance to the voters. Election Code § 9241.5 The ordinance shall not become effective unless a majority of the voters approveit. Id. (italics added). The election must be held at either a regular or special election not less than 88 daysafter the legislative body orders the measure to be placed on the ballot. Jd. C. The Courts Must Construe The Referendum PowerLiberally Because It Is A Power Reserved To The People Courts have foundthat the reserve powers ofinitiative and referendum are “one of the most precious rights of our democratic process.” Mervynnev. Acker (1961) 189 Cal.App.2d 558, 563. “Since under our theory of governmentall the power of governmentresides in the people, the powerofinitiative is commonly referred to as a ‘reserve’ powerandit has long been our judicial policy to apply a liberal construction to this power whereverit is challenged in orderthat the right be not improperly annulled.” /d. at 563-64(italics added). If doubts can reasonably be resolved in favor of the use of this reserve power, our courts will ® Elections Code § 9241 states: “if the legislative body does not entirely repeal the ordinance against whichthepetition is filed, the legislative body shall submit the ordinanceto the voters, either at the next regular municipal election called for that purpose...or at a specialelection called for that purpose...the ordinance shall not becomeeffective until a majority of the voters voting on the ordinance vote in favor ofit, the ordinance shall not again be enacted by the legislative body for a period of one yearafter the date of its repeal by the legislative body or disapproval by the voters.” (italics added). 21 preserve it.” Jd. Courts have declared thatit is their duty to jealously guard this right of the People. Fair Political Practices Commission v. Superior Court (1979) 25 Cal.3d 33, 41. Thus, Courts will narrowly construe provisions that would burden orlimit the exercise of that power. California Cannabis Coalitionv. City of Upland (2017) 3 Cal.5th 924, 936-37 (this Court narrowly read “local government”in a mannerthat did not place restrictions on the electorate). This Court has stated that “‘it is usually more appropriate to review constitutional and other challenges to the ballot propositions or initiative measures after an election rather than to disrupt the electoral process by preventing the exercise of the people’s franchise, in the absence of some clear showing of invalidity.” !° Brosnahan v. Eu (1982) 31 Cal.3d 1, 4 (italics added). Il. ZONINGIS A LEGISLATIVE ACT SUBJECT TO REFERENDUM EVENIF THE ACT SEEKS TO COMPLY WITH STATE LAW This Court has held that zoning is subject to referendum even when a municipality seeks to comply with a statewide law. Yost v. Thomas (1984) 36 Cal.3d 561, 571. In Yost, the city council had adopted zoning measures and argued that the California Coastal Act provided blanket immunity from the voters’ °«Courts have taken judicial notice of the fact that a large cross-section of the citizenry entertains the opinion that the governmentis no longer representative of the people.It takes outlandish resources to mount a campaignforoffice....one counter balanceto this trend is to give vitality to the initiative power. Gaylev. Hamm (1972) 25 Cal.App.3d 250, 257-58. '© The Coalition argued the City’s suit was premature, but given the resources and time spent on this issue, we now consent to hearing the matter on its merits. 22 referendum power. /d. at 565. The city claimed that the zoning changesat issue in that case were not subject to referendum because the city merely implemented a land use plan mandated by the California Coastal Commission, a statewide agency. Id. The California Coastal Act of 1976 is a statewide statute proscribing land use planning for the entire coastal zone of California. Jd. The California Coastal Act has policies and goals that local governments must comply with. fd. This Court noted that state regulation of a matter does not necessarily preempt the powerof local voters to act throughinitiative and or referendum. /d. at 571 (citing Hughes v. City ofLincoln (1965) 232 Cal.App.2d 741, 745). In Yost, this Court examined whether the California Coastal Act explicitly preempted local planning or referred to the referendum andinitiative powers. Id. at 571. The Act did neither. Jd. This Court then discussed whetheror not the legislature intended to circumscribethe right to initiative and referendum from the Act’s general provisions, and concluded that the Coastal Commission’s ability to reject zoning ordinances, which do not conform to a certified land use plan do not render the city’s zoning decisions administrative. [d. at 571-72. Local governments have discretion in “establishing and creating land use plans, to zone one piece of land to fit any of the acceptable uses underthe policies of the California Coastal Act, and to be morerestrictive than the Act.” Jd. at 572. Therefore, the Court held that the “wide discretion afforded to a local government showedthat the city acted /egislatively, and its actions are subject to the normal referendum procedure.” Id. at 573 (italics added); see also DeVita v. County of 23 Napa (1995) 9 Cal.4th 763, 776 (upholding the right of the People to change the general plan by initiative becausethe state had not largely preempted the local legislative body’s discretion by statutory mandate). A. Local Governments Exercise Discretion Under Section 65860 Similarly, cities have wide discretion in creating their zoning schemes. They create and establish their own general plans and zoningdistricts. The Legislature declared its “intention was to provide only a minimum oflimitation in zoning and planning law sothat cities and counties may exercise the maximum degree of control over local zoning matters.” Section 65 800.'' In Morgan Hill, the City had numerous choices whenit attempted to comply with the consistency requirement of Section 65860.” The statewide requirementthat the City amend the zoning to be consistent with the general plan within a reasonable period of time does not dictate which specific zoning district the City should select for the Parcel. This is hardly an “absolute ban”on legislative discretion. City’s Opening Brief at 23. The City clearly exercised legislative discretion in choosing “CG- general commercial” from among the twelve commercial zoning districts available '' Section 65800 states:“It is the purposeofthis chapter to provide for the adoption and administration of zoning laws, ordinances, rules and regulations by counties and cities, as well as to implement such general plan as may bein effect in any such county orcity....the Legislature declares that in enacting this chapterit is its intention to provide only a minimum oflimitation in order that counties and cities may exercise the maximum degree ofcontrol over local zoning matters.” (italics added). '? Even the City concedesthat at least six of the commercial zoningdistricts do not allow for hotel use. City’s Opening Briefat 44. 24 underits zoning scheme to remedy the inconsistency between the general plan and zoning.'> The City also exercised discretion in amending the general plan without concurrently amending the zoning despite the state’s strong statutory preference to do so. See Section 65862." Thus, the City cannot claim that Section 65860 preemptedtheir discretion in the matter. The holding in Yost clearly applies as both the California Coastal Act and Section 65860 imposes statewide requirements on local government, but local governmentsalso retain legislative discretion. Thus, Ordinance-2131 is clearly subject to referendum underthis Court’s reasoning in Yost. B. Zoning Ordinances Are Not Effective Immediately Because They Are Subject To Referendum Zoning ordinances do notfall into the statutory exceptions to referendum listed in California Constitution. See Cal. Const. Art. II, § 9(a). Ordinances that are beyond the referendum power becomeeffective immediately. Elections Code § 9235; see also Voters For Responsible Retirementv. Trinity County (1994) 8 Cal.4th 765, 780. Section Six of Ordinance-2131 states that the ordinance will not be effective for a period of thirty days, suggesting that the City understood that the '? The City also exercised discretion even if there were one other commercial zoning district available. On February 16, 2016, the City considered repealing the ordinance and choosing another commercial zoning district, and decided otherwise. '* Section 65862 provides in pertinent part: “It is the intent of the Legislature,in enacting this section, that local agencies shall, to the extentpossible, concurrently process applications for general plan amendments and zoning changes which are needed to permit developmentso as to expedite processing of such applications.” (italics added). 25 zoning ordinance was subject to referendum whenit was proposed. JA at 121. C. Legislative History Of Section 65860 Does Not Restrict The Right To Referendum Thelegislative history of Section 65860 is silent on the issue of whether or not the legislature intended to preemptthe initiative and referendum powers. City’s Motion for Judicial Notice, Legislative History of Section 65860. Courts presume,absent a clear showingofthe Legislature’s intent to the contrary, that the city’s legislative decisions are subject to referendum. DeVita at 775. The absence of any referenceto the reserve powersofinitiative or referendum in the legislative history of Section 65860 strongly suggests that the legislature did not intend to limit or burden the powers reservedto the People.'° IV. THE VOTERS’ EXERCISE OF THE POWER OF REFERENDUM SHOULD BE CO-EXTENSIVE WITH THE LEGISLATIVE POWEROF THE CITY Courts have recognized that the People’s powerto exercise the right to referendum andinitiative is generally co-extensive with the poweroflegislature. DeVita at 776. This principle limits the People from enacting byinitiative what may notbe enacted by the legislature. Lesher at 545-46. Cf California Cannabis at 936-37. Referenda do not enact legislation, and so the notion that referendum poweris co-extensive with the powerofthe legislature is a question of whetherthe 'S Cf, Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, 545-46 (holding that the consistency requirement prevented the electorate from enacting a zoning ordinancebyinitiative that was inconsistent with the general plan). However, the mandates of Section 65860 also prevented the city from doing the same. Id. at 547. Here, the City had the powerto reject Ordinance-2131, and thus the electorate should also have the power to do so. See Section IV. 26 local legislative body’s discretion was largely preempted by statutory mandate. See Housing Authority v. Superior Court (1950) 35 Cal.2d 550, 557-58. Section 65860 did not mandate that the City adopt Ordinance-2131. Ifthe City Council could reject the ordinance, then the electorate must also have that same power. If the City concedes that it exercised discretion when it voted upon Ordinance-2131, then Yost applies and the act is subject to referendum. However, the City claimsthat the adoption of Ordinance-2131 was akin to an administrative act required by the consistency requirement of Section 65860. City’s Opening Brief at 23-24. The City disingenuously claimsit had no choice but to adopt the ordinance becauseit claims that Section 65860 is an “absolute ban”onlegislative discretion. Id. The City narrowly adopted Ordinance-2131 with two of its members voting against it. By its own argument, the City voted on a measure whenthe consistency requirement rendered that vote meaningless because it was required to approve the ordinance.'® Jd. (Section 65860 mandatesconsistency and prohibits inconsistency without exception); Respondent City’s Answer Brief to the Court of Appeal at 26. If Section 65860is an “absolute ban”onlegislative discretion, then why did the City Council hold a vote? Theright to referendum in this case provides the electorate with the same choice that the City Council considered on April 1, 2015; whether to approve or ‘6 By the City’s own argument, two of its members exceeded theirlegislative authority by rejecting the measure. 27 disapprove of Ordinance-2131. The electorate’s poweris no greater than the City in this regard, but eliminating their right to referendum would severely lessen their powerin comparisonto the City. V. THE PETITION FOR REFERENDUM PREVENTED ORDINANCE-2131 FROM BECOMING EFFECTIVE, AND THUS THE ZONING OF THE PARCEL REMAINS“ML-LIGHT INDUSTRIAL” Oncethe Petition was timely filed and certified, the effective date of Ordinance-2131 shall be suspended andthe legislative body shall reconsiderit. Elections Code § 9237. A. Courts Have Upheld The Stay Provision Of Elections Code § 9237 Courts have consistently upheld the stay provision of the Elections Code § 9237 because the powerofreferendum is simply not the powerto repeal a legislative act, it is the powerofthe electors to approveor reject statutes. Midway Orchards v. County ofButte (1990) 220 Cal.App.3d 765, 780-81. The Midway court held that neither state statutes nor local ordinances subject to referendum go into effect during the time permitted for thefiling of a referendum petition. /d. at 780 (citing Busch v. Turner (1945) 26 Cal.2d 817, 823; Norlund v. Thorpe (1973) 34 Cal.App.3d 672, 675). The purposeof deferring the effective date of the ordinanceis to preserve the right of referendum. Norland at 675. Thus, the ordinancesat issue were nevereffective. Midway at 783. “Good legislation and bad legislation, beneficial legislation andill-considered legislation all are subject to the effect of a referendum stay.” Lindelli v. Town ofSan 28 Anselmo (2003) 111 Cal.App.4th 1099, 1111. Thus, the effective date of Ordinance-2131 has been suspendedand the zoning for the Parcel remains “ML- light industrial.”'’ The zoning ofthe Parcel never changed. B. Ordinance-2131 Shal/ Not Become Effective Until A Majority Of Voters ApproveIt Elections Code § 9241 requires the City to submit the ordinanceto the voters and prevents it from becoming effective until a majority of voters approveit. By challenging the ordinance, the electorate prevented it from becoming law until they approve it by a majority vote. That requirement serves as veto power over laws the electorate finds objectionable. The significance of the Elections Code §§ 9237 and 9241 is that the zoning for the Parcel was never changed. If voters fail to approve Ordinance-2131, then no change has taken place because of the stay provision and the subsequentfailure to gain approval from a majority of voters. It is as if nothing has happened. Disapproval of the measure would simply maintain the status quo. VI. VOTERS MAY REJECT THE CITY’S CHOICE OF ZONING WHEN OTHER ZONING DISTRICTS ALSO CONFORM TO THE RECENT GENERAL PLAN AMENDMENT In the context of land use, a referendum allows voters to reject the City’s first choice of zoning, and thereby require the City to go backto its zoning scheme '’ On February 23, 2016, the City Planner agreed that the zoning of the Parcel remains “ML-light industrial.” JA at 398. 29 and chooseanother zoning district that also conformsto the general plan.'® It is distinguishable from aninitiative in that it allows the City to replace the rejected choice with anotheras longasit is not essentially the same. The City and River Park seek to eliminate the right to referendum because they argue that Ordinance-2131 must be enacted in order to remedy the inconsistency between the zoning and the general plan. City’s Opening Briefat 33-34; River Park’s Openingbrief at 24-27. They also contend that it is irrelevant that other zoning districts exist that also conform to the amended general plan. City’s Opening Brief at 33-34; River Park’s Opening Brief at 23. They highlight that the general plan is the “constitution for all future development,” and thus maintaining inconsistent zoning even temporarily is not a legally valid option. City’ Opening Brief at 33-34; River Park’s Opening brief at 32-33. Furthermore, they argue that no other zoning district may remedy the inconsistency because the Hotel Coalition’s primary purpose is to preserve industrial land. City’s Opening Brief at 41-42; River Park’s Opening Briefat 24. Their arguments fail to recognize that the City cannot rely upon an inconsistency it created as a means to immunizeits legislative act from referendum,that the purposeofthe Petition is to prevent hotel use on the Parcel, and that a rule preventing voters from rejecting one ofmany choices would render '8 The City’s zoning schemeincludesall of the possible zoning districts found in its Municipal Code. See Lockard v. City ofLos Angeles (1949) 33 Cal.2d 453, 455-56 (zoning schemeis the totality and hierarchy ofall zoning districts available). 30 the right to referendum illusory. Their contention that the voters cannot exercise their right to referendum because the City’s choice of zoning is onethat already conformsto the newly amended general plan underminesthe very notion of a referendum. A. The City’s Legislative Act Should Not Be Immune From Referendum WhenIt Attempts To Remedy The Inconsistency It Created The City failed to heed the strong statutory preference to change both the general plan and zoning concurrently. See Section 65862. First, the City amended only the general plan, leaving behind zoning that becameinconsistentas a result of the amendment. JA at 130-31. The City now arguesthat an inconsistencyit created will continue to exist unless it is allowed to deny its constituents their Constitutional right to referendum. The City’s failure to follow Section 65862 should not be a pathway for it to enact zoning without oversight. If the city is allowed to do so, other municipalities will be incentivized to ignore Section 65862, and tactically amend the general planfirst in order to take advantageofthis rule. This will allow municipalities to make controversial land use decisions without worrying about a referendum challenge.'” Cities should not be allowed to create an inconsistency that they can advantageously use to deprive the voters of their Constitutional right to referendum. '? The City concedes that referendum petitions challenging a zoning ordinance after a recent general plan amendmentare a regular occurrence. See City’s Petition for Rehearing at 11. 31 B. The Purpose Of The Petition Is To Prevent Hotel Use The purposeofthe Petition is to prevent Hotel use. The Coalition opposed Ordinance-2131 because hotel use is permitted under “CG-general commercial” zoning. JA at 410. The City had already approvedplans to build two other hotels that would increase the supply of hotel rooms by over 20%. JA at 383:8-13. Rezoningthe Parcel to “CG-general commercial” would give River Park to gain an unfair competitive advantage because it would have paid considerably less than market value for commercial land. See JA at 463-65. (River Park listed the Parcel for twice as muchasit paid whenit believed it was rezoned for hotel use). Before litigation commencedin this case, the Coalition suggested repealing Ordinance- 2131 and choosing another commercial zoning district that did not permit for hotel use. RT at 6:1-13; 15:2-7.7° The City disingenuously claimsthat the trial court found that the purpose of the Petition was to preserve industrial land.”' City’s Brief at 2, 41-42. Thetrial court’s decision did not make any findings regarding the purposeofthe Petition. JA at 484-87. Ratherthe trial court found that rejecting Ordinance-2131 is the sameas legally enacting inconsistent zoning and hence invalid zoning. JA at *? Thetranscript mistakenly includes a “not” before the other zoning optionsthat the Coalition asked the City to consider. *! The Court also stated at the hearing, “I’m not going to makea ruling based upon my assumption or anybody’s speculation or argument aboutthe true purpose ofthe referendum.” RT 15:27-16:1. 32 485:11-13. It appears that the City is conflating the outcomeifvoters reject the ordinance — the parcel’s industrial zoning remains, with the underlying reason for why voters would reject the ordinance — there is no need for another hotel in Morgan Hill. The City relies upon an unpublished ballot argument submitted a year after the Petition was filed to argue that the Coalition’s true purpose is to preserve industrial land. City’s Opening Brief at 2. The unpublished ballot argument provides countless reasons to disapprove of Ordinance-2131. JA at 482. However, the primary reason listed in the ballot argumentis to prevent the development of another hotel as two other hotels are opening soon, and providing a financial windfall to the developeris unfair. Id. River Park also argues that the purpose of the referendum wasto preserve industrial land. River Park’s Opening Brief at 24. However, River Park’s president declared that the “referendum is nothing more than an anti-competitive effort brought by the Morgan Hill Hotel Coalition to delay and/or prevent my proposedhotel from being built, limit the local hotel competition, and protect marketshare...” JA at 452:20-23. River Park’s president never mentions that he believes the purpose ofthe Petition is to preserve industrial land. Jd. The Sixth District also found that the “stated purpose of the referendum wasto prevent developmentof a hotel on the parcel.” ”* City ofMorganHill at 38. ?? While the Sixth District’s finding is useful in understanding which zoning districts may be prohibited for a period of one year pursuant to Elections Code 33 C. There Are Eleven Other Commercial Zoning Districts In The City’s Zoning SchemeIncluding Several That Do Not Permit Hotel Use The City’s Municipal Code has twelve commercial zoning districts. JA at 407-31. The City chose oneto the exclusion of the others, but does not challenge that each of the eleven other commercial zoningdistricts also conform to the recent general plan amendment. City ofMorgan Hill at 41 (“it is undisputed that the City could have selected any of a numberof consistent zoning districts to replace the Parcel’s inconsistent zoning”). Instead, the City argues thattheir existenceis irrelevant or would prevent them from enacting another commercial zoning district for a year. JA at 475-76. The City contested the existence of other commercial districts for the first time in a petition for rehearing filed in the Sixth District. City’s Petition for Rehearing at 8-12. However, the City had waived any argumentto the contrary by conceding the existence of other commercial zoning districts in the trial court and in its brief to the Court of Appeal. JA at 475; Respondent City’s Brief to Court of Appeal at 28-29. Regardless, the City now concedesthat there were six commercial zoning districts that do not permit hotel use, and at least one commercial zoning district that the City believes may be appropriate for the location, conformsto the recent general plan amendment and doesnot permit hotel § 9241, we note that a petition for referendum is not required to have a purpose, andit is very difficult to discern the intent of each person whosignedit. 34 use.”? City’s Petition for Rehearing at 11-12. The issue is not one of how many choices the City had, but ratherthat it is exercised choice in selecting one. The City and River Park also argued that the purpose of the Petition was to preserveindustrial land use, and therefore the City could not chose another commercial zoning district for one year. City’s Brief at 2, 41-42; River Park’s Opening Brief at 24. They claim that the City’s inability to choose another zoning district for a year invalidates the referendum. Jd. Their entire argument rests on the premise that the purposeofthe Petition is to preserve industrial land use, which for the reasons discussed aboveis not thecase. Second,the right to argue that the City is circumventing the stay provision of Elections Code § 9237 should belongto the party bringing forth the petition, not the city. The test for violating the stay provision is whether the secondstatute enacted by the legislature is essentially the sameas the first. Lindelli at 1110. Enacting a commercial zoning district such as “CO-office administrative” is not the same as “CG-general commercial” because the former would not allow River Park to develop a hotel while the latter would. Ironically, the City argues that the one-yearlimitation found in Elections Code § 9237 allows them to ignore the other provisions of the Elections Code including the voter requirement of § 9241. This Court should refrain from reading the statutes in a mannerthat would render sections meaningless and allow municipalities to ignore them. 3 The City is referring to the zoning district of “CO-office administrative.” 35 D. The Chandis Court Held That A Rule Declaring That Voters Cannot Reject One Of Several Choices Would Render The Exercise Of The Power Of Referendum Meaningless The Fourth District held that a “rule declaring that voters cannot reject a proposedspecific plan falling within the parameters of the city’s general plan would render the exercise of the powerofreferendum meaningless.” Chandis at 482 (italics added). The City of Dana Point had adopted a general plan which designated the Headlandsas a specific plan area, with guidelines on the numberof residences and hotels allowed and designating over 61 acres of open space. Id. at 479-80. Several years later, the plaintiffs submitted a specific plan that satisfied the requirements of the general plan including the open space element. /d. at 480. The city council approved the specific plan, and additionally amended the general plan only to extent of modifying the open space element. /d. However,petitions for referenda were timely filed and the specific plan and general plan amendment were placed on the ballot for voter approval. Jd. The voters failed to support the measures, and the plaintiffs sued because their proposed specific plan along with the general plan amendment conformed to Dana Point’s general plan for the Headlands. /d. at 481-82. Theplaintiffs argued that the electorate’s rejection of the specific plan was invalid becauseit violated the requirement land use regulations be consistent with the city’s general plan. Id. at 484. The Chandis Court explained that the specific plan and general plan amendment never becameeffective because the petitions were timely filed. /d. at 482. Thus, the Chandis Court held that the “subsequent rejection by the voters 36 simply maintained the status quo; it did not repeal a specific plan previously adopted by the city council.” Jd. at 482-83. The Court also observed that Dana Point had considered eleven developmentalternatives other than the one they adopted. Id. at 482. Theplaintiffs relied upon deBottari and the consistency requirementin Section 65000 et seq. to argue that the Court should invalidate the referendum measures because no developmentis inconsistent with a general plan calling for development. Jd. at 484-85. Nevertheless, the Chandis Court did not invalidate the outcomeofthe referenda becauseit held that rejection of a proposed specific plan only maintains the status quo of no development temporarily pending another choice. Jd. at 485 (italics added). The Chandis Court held that the failure to approve the measureis not an “enactmentof a land use proposalat odds with the general plan.” Jd. Thus, the Fourth District’s holding in Chandis contradicted its previous reasoning in deBottari. This Court should adopt the reasoning in Chandis as it allows the voters to challenge legislative discretion. Both the City and Dana Point had numerous choices whenit selected one conforming to the amended general plan. Evenifthe referendumresults in maintaining zoning that has becomeinconsistent after a subsequent general plan amendment, that zoning is merely temporary pending another adoption of another zoning district. The City and River Park conceded the existence of other commercial zoning districts that also conform to the general plan and prevent hotel development. Inherent in the right to reject a zoning 37 ordinanceis the right of the voters to require the City to choose another zoning district that also conformsto the general plan. Thus, this Court should not adopt a rule that would renderthe right to referendum illusory. E. The City Plays Word Games And Argues Rejecting The Ordinance Restores, Revives Or Re-Enacts Inconsistent Zoning Referenda either approve or reject legislation proposed bythe legislature before they becameeffective. Assembly at 657. The City however plays word gamesand suggests that when an electorate rejects a proposed ordinance by referendum,it “repeals a properly enacted ordinance andit revives or re-enacts the ordinance it superseded.” City’s Brief at 28. First, the electorate does not have the powerto repeal, only to approve or reject the proposed ordinance. Midwayat 780-81. Second, the existing ordinanceis not restored, revived nor re-enacted because Elections Code § 9237 stays the effective date of the adopted measure. It has been uniformly held that a statute “has no force whatsoeveruntil it goes into effect.” Hersh v. State Bar ofCalifornia (1972) 7 Cal.3d 241, 245. Here, the Elections Code prevented Ordinance-2131 from becoming effective until a majority of voters approvedit. Elections Code § 9241; see also Assembly at 656 (holding that Article II, Section 10(a)’s language in the Constitution that a challenged statute that is approved by the voters takes effect the day after the election would be unnecessary if it were already in effect). Thus, the existing ordinance remainsin place and has not been superseded. Midway at 780; Chandis at 482-83. The City argues that “enact” and “reject” are distinctions without 38 substantive merit.“ Jd. at 29. Their argumentfails to understand the difference betweeninitiatives and referenda. F. Lawfully Enacted Zoning That Becomes Inconsistent As A Result OfA General Plan AmendmentIs Not Invalid The City and River Park argue that the zoning of the Parcel that has become inconsistent as a result of a recent general plan amendmentis invalid. City’s Opening Brief at 24; River Park’s Opening Brief at 20. Legally enacted zoning does not automatically becomeinvalid because the general plan is amended. City ofMorgan Hill at 40. If, as the City claims, a general plan amendmentcan render preexisting zoning invalid, then the City’s general plan amendmentsanctioned the existence of invalid zoning, and thus its amendmentis illegal. Rather, Section 65860(c) should apply as the purpose of that subdivisionis to “ensure an orderly process of brining the regulatory law into conformity with a new or amended general plan...””? Lesher at 546. The City and River Park argue that Section 65680(c)’s provision of reasonable time to amend zoning that has become inconsistent with the general plan is not available to the City if the voters reject the City’s first choice of zoning. 4 This is the legal equivalent of “up is down”and “downis up.” *5 Section 65860(c) states: “In the event that a zoning ordinance becomes inconsistent with a general plan by reason of amendmentto the plan, or to any element of the plan, the zoning ordnance shall be amended within a reasonable time so that it is consistent with the general plan as amended. 39 City’s Opening Brief at 25; River Park’s Opening Brief at 22. There is no authority or legislative history supporting this position. Furthermore, Courts must read statutes broadly to jealously guard powers reserved to the People, rather than narrowly to burden or limit those powers. Both the Fourth District and the Sixth District found that the consistency requirementdid not invalidate a preexisting zoning ordinance that became inconsistent only after a general plan amendment. Chandis at 485; City ofMorgan Hill at 43. Thus, it is apparent that Section 65860(c) provides a means by which the City may amend the zoning of the Parcel should the electorate reject its first choice of zoning. G. The Consistency Requirement Will Be Satisfied Within A Reasonable Period Of Time Regardless Of Whether The Voters Approve Ordinance-2131 If the electorate approves the City’s choice of zoning then Ordinance-2131 will become effective the following day. Cal. Const. Article II, Section 10(a). If the measurefails, then the City may rely upon Section 65860(c) and choose another commercial zoning district that prevents hotel development and conforms to the recent general plan amendment. The City could do the latter within a reasonable time as it may consider another zoning district once the election is held.” Referendum elections may take place as soon as 88 daysafter the City orders it on the ballot. Elections Code § 9241. 6 Courts have not yet defined a reasonable time under Section 65860(c). 40 River Park complains of the diminished value of the land and the prolonged uncertainty regarding available uses of the land due to the referendum. River Park’s Opening Brief at 28-29. However, River Park bought industrial land with hopesthat the City would change the zoning to permit hotel use. An owner of undevelopedland has novested right in more valuable zoning, which may have been anticipated or zoning of the highest and best use of the property. See Gilliland v. County ofLos Angeles (1981) 126 Cal.App.3d 610, 617. Additionally, the delay in determining the possible uses for the Parcel is due to the City. First, the City discontinued processing the Petition rather than order the measure on the ballot. When the City finally acquiesced and placed the measure onthe ballot,it filed an action to removeit, thereby preventingthe electorate from voting.”’ H. Failing To Object To The General Plan Amendment Or Legislating ByInitiative Is Not A Waiver/Substitute For The Constitutional Right To Referendum The right to referendum is a Constitutional right. Article IT, § 9(a). River Park claimsthat failing to object to a general plan amendmentis an implied waiver to a subsequentlegislative act of amending zoning. River Park’s Opening Briefat 38. In many instances, the electorate may not anticipate how parcel will be used until after the general plan has been amended, but before the zoning has changed. Within the general plan designation of commercial, there are many permitted uses such as shopping center, restaurants and office buildings. JA at 407-31. Or the *7 River Park joined in the City’s application to order the Registrar toremove Ordinance-2131 from the ballot. JA at 445. 41 City may change the general plan with no pending application for use permits leaving voters in the dark as to how the land will ultimately be used. It is the Court’s duty to jealously guard the referendum poweras to eachlegislative act. Failing to object to a general plan amendmentshould therefore be insufficient to challenge the subsequentlegislative act of zoning. The City contendsthat the electorate could have attempted to change the zoning by initiative. City’s Opening Brief at 33. There is no authority to support that the right to initiative mayserve as a substitute for the right to referendum. Both powers were added by Constitutional amendment in 1911 because both are reserved to the People. VII. FOLLOWING DEBOTTARI WOULD CHANGE A REFERENDUM INTO ANINITIATIVE The City and River Park urge this Court to adopt the rule that the referendum measure would enact zoning inconsistent with the amended general plan if the electorate rejected the ordinance, andis therefore invalid. City’s Opening Brief at 22-24; River Park’s Opening Brief at 36-39. They rely upon deBottari to support their position. debottari at 1213; see also City ofIrvinev. Irvine Citizens Against Overdevelopment (1994) 25 Cal.App.4th 868. The Sixth District found the reasoning in deBottari is “flawed” because a referendum cannot enact an ordinance. City ofMorgan Hill at 42. Instead, a “referendum thatrejects an ordinance simply maintains the status quo.” Jd. The Sixth District disagreed with deBottari and held that preexisting zoning that becomesinconsistent as a 42 result of subsequent amended general plan is not invalid and may be amended in accordance with Section 65860(c). Jd. A. There Were No Other Zoning Districts Available In deBottari That Would Conform To The Recent General Plan Amendment In deBottari, the city ofNorco (“Norco”) amendedthe general plan for a parcel of property consisting of approximately forty acres from residential/agricultural to residential low-density (3-4 units per acre). deBottariat 1207. The developer subsequently requested that the city council rezone property from “R-1-18” to “R-1-10,” so that he may build single-family homes on 10,000 square feet lots instead of 18,000 square feet lots. Jd. Norco adopted the ordinance to change the zoning as requested by the developer, but a petition for referendum wastimely filed. /d. at 1208. Norco refused to repeal the ordinance or place the referendum measure on the ballot. Jd. The proponentsofthe referendum petitioned the court for a writ compelling Norco to place the referendum measure on the ballot, but the trial court denied it. Jd. The Fourth District heard the case on appeal. Jd. The Fourth District failed to mention the existence of other low-density zoning districts that would also conform to the amended general plan if the voters did not approve the zoning ordinances. Either one did not exist or because the purposeofthe petition was to prevent the development of homes on smaller plots, it did not matter. The proponents of the referendum suggested that Norco had three options if the measure failed: re-enact the zoning that had been disapproved, 43 enact a new zoning scheme,or force the city to amend the general plan. Jd. at 1213. The proponents never mentioned that Norco may adopt another low-density zoning district that wouldsatisfy their petition and conform to the general plan, so it should be inferred that none existed within the zoning scheme. B. The debottari Court Erroneously Held That Rejecting A Proposed Zoning Ordinance Would Enact Inconsistent Zoning That Could Not Be Rescued by Section 65860(c) The deBottari Court fashioned an extraordinary remedy and foundthatif the electorate rejects the proposed zoning ordinance, the electorate actually enacts zoning inconsistent with the general plan, which rendersit invalid. Jd. at 1212-13. The deBottari Court’s analyzed the case as if the referendum repealed a lawfully enacted zoning ordinance and then re-enacted the same ordinanceafter the general plan had been amended. The deBottari Court found that Section 65860(c) did not provide a means for remedying the inconsistency because it viewed the referendum as the enactmentof an inconsistent zoning ordinance. Jd. Debottariis poorly reasoned becausethe Fourth District treated the referendum asif it were an initiative. Thus, the Fourth District concluded that Norco had properly refused to submit the referendum to the electorate. Jd. at 1213. C, The City’s Zoning Scheme Has Twelve Different Commercial Zoning Districts, And Thus This Court Should Permit The Voters To Reject The City’s First Choice OfZoning In this case, the City’s zoning schemeincludes twelve different commercial zoning districts, which permit many different types of commercial uses. JA at 407-31. Ifthe voters ratify Ordinance-2131, it becomes effective the following 44 day. Cal. Const. Aritcle II, Section 10(a). However, if the voters reject Ordinance-2131, the City will be able to select another commercial zoning district that does not permit hotel use, but is consistent with the recently amended general plan. The City would not need to enact a new zoning scheme, or amend the general plan because the existence of other commercial zoning districts within its current zoning scheme. This Court should not fashion a rule upon the unique set of facts present in deBottari. Local governments exercise discretion when they choose a zoning district to replace one that has becomeinconsistent as a result of a recent general plan amendment. Underthe rule urged by the City and River Park, the voters would never have any powerto reject that choice. The electorate would lack the ability to exercise their Constitutional powerto prevent legislators from enacting zoning ordinancesthat benefit special interests. This Court should affirm the the Sixth District’s holding that the electorate may reject a zoning designation adopted by a local municipality to conform to general plan amendment, even if such rejection merely maintains the existing zoning designation that has become inconsistent until the municipality chooses another pursuant to Section 65860(c). VIII. COURT SHOULD AWARD ATTORNEY’S FEES AND COSTS TO THE COALITION IN ACCORDANCE WITH THE CODE OF CIVIL PROCEDURE § 1021.5 The Coalition should recover attorney’s fees and costs incurred in this matter from both the City and River Park pursuant to Code of Civil Procedure § 45 1021.5 because the Coalition’s actions resulted in the enforcement of an expressly reserved and Constitutional right affecting the public interest-the electorate’s right to exercise the power of referendum. The Coalition requests it may seek attorney fees by motionin thetrial court pursuant to California Rules of Court 3.1702(c). CONCLUSION For the foregoing reasons, Appellant Coalition requests that this Court affirm the decision of the Sixth District Court ofAppeal and reverse the Superior Court’s order granting City’s petition. The Coalition also requests that the Court order that Appellant recoverits costs and that it may seek attorney’s fees by motion in the trial court, and any otherrelief it deems just andfair. Dated: November16, 2017 LAW OFFICE OF ASIT PANWALA Ze Asit S. Panwala Randall Toch Attomeys for Appellant and Real Party In Interest Morgan Hill Hotel Coalition 46 VERIFICATION Pursuant to California Rules of Court Rule 8.504(d)(4), I hereby certify that the forgoing Appellant Morgan Hill Hotel Coalition’s Answer Brief is in Times New Roman13-point font and contains 10,576 words as counted by Microsoft Word. Dated: November 16, 2017 LAW OFFICE OF ASIT PANWALA < VE Asit Panwala, Esq. Attorney for Real Party in Interest and Appellant Morgan Hill Hotel Coalition 47 City of Morgan Hill v. Shannon Bushey,etc., et al., Supreme Court No. 8243042 Court of Appeal No. H043426 Superior Court No. 16-CV-292595 PROOF OF SERVICE I, ASIT S. PANWALA,herebystate: I am over eighteen years of age and not a party to the above action. My business address is 4 Embarcadero Center, Suite 1400, San Francisco, California 94111. On November 16, 2017, I served the following documents: MORGANHILL HOTEL COALITION’S ANSWERBRIEF by serving the following parties via True Filing E-Service. Katherine Alberts Counsel for City of Morgan Hill Leone & Alberts 2175 N. California Blvd., Suite 900 Walnut Creek, CA 94596 Danielle Goldstein Counsel for Registrar of Voters Santa Clara County Counsel Office 70 W. Hedding Street Floor 9, East Wing San Jose, CA 95110 Jolie Houston Counsel for River Park Hospitality Berliner Cohen 10 Almaden Blvd., Floor 11 San Jose, CA 95113 48 Thomas Murphy Counsel for River Park Hospitality Berliner Cohen 10 Almaden Blvd., Floor 11 San Jose, CA 95113 Donald Larkin Counsel for City of Morgan Hill Office of the City Attorney City of Morgan Hill 17575 Peak Avenue MorganHill, CA 95037 Scott Pinksy Counsel for Irma Torrez Office of Gary M. Baum 19925 Stevens Creek Blvd. Suite 100 Cupertino, CA 95014 I also placed a copy of the MORGAN HILL HOTEL COALITION’S ANSWER BRIEFin sealed envelope with first-class US mail postage in United States Postal mailbox affixed and addressedto: Superior Court of Santa Clara County Clerk of the Court The Honorable Theodore Zayner 191 N.First Street San Jose, CA 95113 Sixth District Court of Appeals Clerk of the Court 333 West Santa Clara Street, Suite 1060 San Jose, CA 95113 I declare under penalty of perjury under the law of the State of California that the foregoing is true and correct. Executed on November 16, 2017, at San Francisco, rae Asit S. Panwala California. 49