MORGAN HILL, CITY OF v. BUSHEY

Real Party in Interest, River Park Hospitality, Petition for Review

Cal.July 10, 2017

S$ 243042 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA CITY OF MORGANHILL,a municipality, Case No. Plaintiff and Respondent, . Sixth Dist. No. H043426 V. Santa Clara Superior Court SHANNON BUSHEY, AS REGISTRAR| Case No. 16-CV-292595 OF VOTERS,etc., et al., Defendants and Respondents. SUPREME COURT FILED RIVER PARK HOSPITALITY, JUL 1 0 2017 Real Party in Interest and Respondent. Jorge Navarrete Clerk MORGANHILL HOTEL COALITION, Deputy Real Party in Interest and Appellant. After a Decision by the Court ofAppeal Sixth Appellate District, Case No. H043426 Superior Court, Santa Clara County Case No. 16-CV-292595 RIVER PARK HOSPITALITY, INC.’S PETITION FOR REVIEW JOLIE HOUSTON, CASB 171069 *THOMASP. MURPHY, CASB 121251 BERLINER COHEN TEN ALMADEN BOULEVARD ELEVENTH FLOOR SAN JOSE, CALIFORNIA 95113-2233 TELEPHONE:(408) 286-5800 FACSIMILE: (408) 998-5388 ATTORNEYS FOR PETITIONER, REAL PARTY IN INTEREST AND RESPONDENT RIVER PARK HOSPITALITY,INC. 4820-0197-7675v1 TPM\23891002 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA CITY OF MORGANHILL,a municipality, Plaintiff and Respondent, V. SHANNON BUSHEY,AS REGISTRAR OF VOTERS,etc., et al., Defendants and Respondents. RIVER PARK HOSPITALITY, Real Party in Interest and Respondent. MORGANHILL HOTEL COALITION, Real Party in Interest and Appellant. CaseNo. Sixth Dist. No. H043426 Santa Clara Superior Court Case No. 16-CV-292595 After a Decision by the Court of Appeal Sixth Appellate District, Case No. H043426 Superior Court, Santa Clara County Case No. 16-CV-292595 RIVER PARK HOSPITALITY, INC.’S PETITION FOR REVIEW JOLIE HOUSTON, CASB 171069 *THOMASP. MURPHY, CASB 121251 BERLINER COHEN TEN ALMADEN BOULEVARD ELEVENTH FLOOR SAN JOSE, CALIFORNIA 95113-2233 TELEPHONE:(408) 286-5800 FACSIMILE:(408) 998-5388 ATTORNEYS FOR PETITIONER, REAL PARTY IN INTEREST AND RESPONDENT RIVER PARK HOSPITALITY,INC. 4820-0197-7675v1 TPM\23891002 TABLE OF CONTENTS Page I. QUESTION PRESENTED.........cceeseseessecseeeeeececeeeeeneeseneassecseeneeeeneeees 1 Il. INTRODUCTION......cccceccccesecscetseseseececeesseneeteceeeenecaeceeesaesaseeeaeenseaeeees I Tl. STATEMENT OF THE CASE...ceccccceeescceseeeesceeteceerseneenrsneeneees 2 A. Factual Background .........eeeeeeeceeceseeeeeeeeceeeeeeseseneceeeeeesaeeeeerees 2 B. Procedural Background ..........ccccceeseeeccesececeeeseneeeseeseaeeneeenseeseeess 3 TV. ARGUMENTuu... cccccccececceecnereeeeceseseeeesaesecsecaeeaesaeeasneesseseeseeaesaetasees 4 A. Why Review is NeCeSSary. oc. esseeecesesesssesecserseneetecseetartentaes 4 B. The Court of Appeal’s Decision Should Be Reversed.............. 9 1. The Court of Appeal’s Decision Rests on an Incorrect View of the Effect of Government Code Section 65680 When Zoning is Made Inconsistent by General Plan Amendment..........:cccccecceseeereeeeseesesceeesseeeneeaeeatene 10 2. The Court of Appeal’s Decision would Impede Well-Established Policies Promoting Early Certainty in Land Use and Zoning Matters and Lead to Far- Reaching, Harmful Results...ceceeeeseeeeeereeeeees 14 V. JOINDER IN AND INCORPORATION BY REFERENCE OF PETITION FOR REVIEW OF CITY OF MORGANHILL,u0..eceececcccecesessseseeeeeneeceereseeesnecsesneeeeeesenseeeeaesaeeeees 16 VI. CONCLUSION.00.cccccccceenceeseteteneeeeceeeeeeeeeseeseeeasesnesetastetsesrtaseeey 16 4820-0197-7675v1 TPM\23891002 TABLE OF AUTHORITIES Page Cases American Federation ofLabor v. Eu (1984) 36 Cal.3d 687 oo... eeecctceseeseseccseeeeeeeeenesaceecseeseceaeesesussssesesseseesssteeets 14 Citizens ofGoleta Valley v. Bd. ofSupervisors (1990) 52 Cal. 30.553 eeceecseeseesessescsesnseseeeesceeesssaeseeseeetecseaseenesseneaeaey 4,6 City ofIrvine v. Irvine Citizens Against Overdevelopment (1994) 25 CalApp.4™ 868 ......cccccccecesececeeseseseeteseseseeeensaceesesesstseeesneespassim City ofMorgan Hill v. Bushey (2017) 5 Cal.App.434 .o.cccccscessesesssesssseesnesesescseseecesereececeesnessseenenseeenseeetes 1 deBottari v. City Council (1985) 171 Cal.App.3d 1204.0.ccreeeeeereesnesenesseeeeesenesspassim DeVita v. County of Napa (1995) 9 Cal.4 763 oo. cececcscsceseeeeesssssesseesesseessseeseesseesessassssesseseeesseeneneents 14 Government Codesection 65860...........:cscsssesscseesseeeseeceereeeeseerseneeeeases passim Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531 eeeeseeeseseeeereesseessessessecsseeeseseesenenesesessenenes passim Orange Citizensfor Parks & Recreation v. Superior Court (2016) 2 Cal. Sth 14]ececccseessensseceseeseeesecseeesesessenenesseneees 5, 6, 11 Statutes California Rules of Court Rule 8.500(D)(1) oo...cee eecseeceeeseeeeeeeeeesenetteeeneeee 1 California Rules of Court Rule 8.504(€)(3)......ccccccssceceeesteeceeeeeneeeeteestenseeees 16 Election Code section 9241 oo... ccccccccsccecesrcseeceteescesseeeeeeesnaeeeaeeesasaceseessesseeeaees 15 Government Codesection 65009)...eeeeseesseeseeseceresseseseceeseeeneeseeseesensaes 15 Government Code section 65300 00.0... cescseseseseesseetseeseecnsseseceeteeseteecnseseeaeenas 4 Government Code section 65359... eecsecsesseeceseeseeteseeeseeessesessecseeseseeeeseees 11 Government Code section 65860 (8) ......ecsscesceesseceseseeeeeeseesenseeseeeenes passim Government Codesection 65860(D).........cccesecessceeseeeesreeeeseessseserseesseeseeneeens 15 Government Codesection 65860(C) 0... esessssesssessecsseeersereseeessteeeaases passim Government Code section 65867.5(D).......ccccscccsseessnneeeceseeeeneersaeeeneesateeneees 1] 4820-0197-7675v1 -ii- TPM\23891002 Government Code section 664735 ...ccccecccccccccccccccsecceccccecsccccscecessaccseveeseecensees 11 Government Code section 66499.370.ccsesseesceeeeseneesesensessesneeseenaees 15 Planning and Zoning Law section 65000 oeeee eeeseeeesceseceetsteeeesesseesnens 10 4820-0197-7675v1 -iii- TPM\23891002 River Park Hospitality, Inc. a California corporation (“River Park”), Real Party in Interest in the trial court and Respondent on appeal, respectfully petitions for review of the decision of the Sixth District Court of Appealin City ofMorgan Hill v. Bushey (2017) 5 Cal-App.4" 34 (issued May 30, 2017, Court ofAppeal No. H043426), a copy of whichis attached hereto. I. QUESTION PRESENTED. Musta city’s voters be allowed to challenge by referendum a municipal zoning ordinance adopted in order to conform the city’s zoning of property to its general plan wherethe result of the referendum,if successful, would be that the property’s zoningis inconsistent with the city’s general plan? IL. INTRODUCTION. This case presents both of the grounds for review set forth in California Rules of Court Rule 8.500(b)(1): (1) the court of appeal’s published decision creates a conflict in long-established case law, so that review is necessary to secure uniformity of decision, and (2) this case concernslegal questions of broad public importance,affecting the rights and powerscities and counties, property owners, and voters throughout California. In its decision, the Sixth District expressly criticized, and declined to follow, the decision ofDivision Twoofthe Fourth District in deBottariv. City Council (1985) 171 Cal.App.3d 1204, 1212-1213. (Slip op. at ** 2, 7-8 [‘“We disagree with deBottari ... .’ “We must confront deBottari, as the superior court relied on it, and City continuesto rely on it.” “The Fourth District’s reasoning in deBottari is flawed.]”) The Sixth District also rejected the decision ofDivision Three of the Fourth District in City ofIrvine 4820-0197-7675v1 -|- TPM\23891002 v. Irvine Citizens Against Overdevelopment(1994) 25 Cal.App.4™ 868, stating that it “suffers from the same flaw”as deBottari. (Slip op.at * 8, n. 4.) The decisions in deBottari, City ofIrvine, andin this case all addressed the question ofwhether a city must submit an otherwise qualified referendum to the voters where the result of the referendum, if successful, would be that a property’s zoning is inconsistent with the city’s general plan. The courtsin deBottari and City ofIrvine held that a city whose zoning is required to be consistent with its general plan may properly decline to present such a measure to the voters. In this case, the court of appeal held that such a city must do so. Review is therefore necessary to secure uniformity of decision in the published case law. Moreover, because this case raises issues concerning the scope ofthe voters’ right ofreferendum to exercise the legislative power on matters of local zoning,it involves legal questions ofbroad importance throughout California. Cities, counties, property owners, the voters, and the lower courts all deserve certainty in the law concerning the reach of the referendum power over land use and zoning. Reviewis thus also necessary to settle an important question of law. Forthese reasons, and as discussed below, the Court should grant review of the court of appeal’s decision in this case. Wl. STATEMENT OF THE CASE A. Factual Background River Park ownsa vacant parcel of land at 850 Lightpost Parkway in Morgan Hill. (Joint Appendix [JA], 60.) In November 2014,the City of Morgan Hill (City) amendedits general plan to change the land use designation for River Park’s parcel from “ML-Light Industrial”to & “Commercial.” (/bid.) In April 2015 the City’s city council approved 4820-0197-7675v1 -2- TPM\23891002 ordinance no. 2131 (O-2131), which would change the parcel’s zoning from ML-Light Industrial to “CG-General Commercial,” a zoning designation that wasconsistent with the amended general plan and that would permit a hotel on the parcel. (JA 60-61.) On May 1, 2015, the Morgan Hill Hotel Coalition (a Real Party in Interest in the trial court and Appellant in the court of appeal) submitted a referendum petition challenging O-2131. (JA 115, 119.) The stated purpose of the referendum, accordingto its proponent’s ballot arguments, was to prevent the developmentof a hotel on River Park’s parcel and to preserve industrial land. (JA 480-482.)' In July 2015, the City discontinued processing the referendum becauseit believed that it would enact zoning that was inconsistent with the City’s general Plan. (JA 65, 69- 99.) Later, in February 2016, the City called for a June 2016 special election to submit the referendum to the voters. (JA 65, 100-104.) It also authorized an action to have the referendum nullified as legally invalid and removed from the ballot. (JA 18.) B. Procedural Background In March 2016 the City filed a petition for a writ of mandate in the trial court seeking to removethe referendum from the June 2016 ballot. (JA 13.) On March 29, 2016,the trial court granted the City’s petition. (JA 485.) Relying on deBottari, it ruled that the City had shownthe invalidity of the referendum by demonstrating that “the current zoning in questionis 1 Tn its decision, the court of appeal described the purpose ofthe referendum solely as being solely to prevent the developmentof a hotel on theparcel. (Slip op. at **2-3.) In petitions for rehearing, both the City and River Park pointed outthat a purpose of the referendum wasalsoto preserve industrial uses. (City Petition for Rehearing, pp. 4-6; River Park Petition for Rehearing, pp. 4-5.) The court of appeal denied both rehearing petitions without comment. (See Order dated June 23, 2017, attached.) 4820-0197-7675v1 3- TPM\23891002 inconsistent with the City’s General Plan—and therefore presumptively invalid.” (bid.) Thetrial court ordered the referendum to be removed from the ballot and that O-2131 be certified as duly adopted and effective. (JA 486.) On appeal, the Sixth District reversed. It stated: “We disagree with deBottari and hold that a referendum petition challenging an ordinancethat attempts to make the zoning for a parcel consistent with the parcel’s general plan land use designationis not invalid if the legislative body remainsfree to select another consistent zoning for the parcel should the referendum result in the rejection ofthe legislative body’s first choice of consistent zoning.” (Slip op. at * 2.) As noted, both the City and River Park filed petitions for rehearing challenging the court of appeal’s factual recitation and reasoning. (Petitions for Rehearing.) The court of appeal summarily denied both petitions. (See Order of June 23, 2017.) IV. ARGUMENT A. Why Review is Necessary. The Legislature has mandated that every county and city adopt a “comprehensive, longterm general plan for the physical developmentofthe county orcity, and of any land outside its boundaries whichin the planning agency’s judgmentbearsrelation to its planning.” (Government Code § 65300.)2 The general planis effectively the “constitution for all future developments” within the city or county. (Citizens ofGoleta Valley v. Bd. of Supervisors (1990) 52 Cal. 3d 553, 570, citing deBottari, supra, 171 Cal.App.3d at 1212-1213 and other cases.) A fundamental requirementis 2 Unless otherwise indicated, subsequentstatutory references areto the Government Code. 4820-0197-7675v1 -4- TPM\23891002 that “[a] zoning ordinanceshall be consistent with a city or county general plan ... .” (Section 65860 (a).) “[T]he requirement of consistency... infuse[s] the concept ofplanned growth with the force of law.” (Orange Citizensfor Parks & Recreation v. Superior Court (2016) 2 Cal. 5th 141, 153, quoting deBottari, supra, 171 Cal.App.3d at 1213.) It is the “linchpin of California’s land use and developmentlaws... .” (deBottari, supra, 171 Cal.App.3d at 1213.) As this Court recently reaffirmed, “the propriety of virtually any local decision affecting land use and development depends upon consistency with the applicable general plan and its elements.” (Orange Citizens, supra, 2 Cal.Sth at 153.) Over 30 years ago, Division Two ofthe Fourth District held in deBottari that a city could refuse to place before the voters a referendum challenging a zoning ordinance that the city had adopted in order to conform its zoning to its general plan, where the zoning of affected property had becomeinconsistent with the city’s amended general plan by the general plan’s amendment. In so holding, the deBottari court relied on Section 65860(a), which providesthat “[c]ounty or city zoning ordinancesshall be consistent with the general plan of the county or city by January 1, 1974.” (deBottari, supra, 171 Cal.App.3d at 1211-1212.) The court concludedthat the proposed referendum need not be submitted to the voters becauseits invalidity had been clearly and compellingly demonstrated. (/d. at 1212.) It reasonedthat “[rJepeal of the zoning ordinance in question wouldresult in the subject property being zoned to the low density residential use while the amended[general] plan calls for a higher residential density.” (/bid.) The court rejected the argumentofthe referendum’s proponents that under Section 65860(c), which provides for a “reasonable time” within which an inconsistent zoning ordinance may be brought into conformity with an 4820-0197-7675v' _5- TPIM\23891002 amended general plan, the city was free to enact somealternative zoning schemethat would be consistent with the general plan. (deBottari, supra, 171 Cal.App.3d at 1212.) Later, in City ofIrvine, supra, 25 Cal.App.4th 868, Division Three of the Fourth District similarly held that a referendum that soughtto repeal a consistent zoning ordinance in favor of inconsistent zoning wasinvalid. In doing so, the court in that case applied the rule of deBottari to a charter city that had adopted a requirement of general plan consistency in its municipal code.3 Over the years, this Court has relied on deBottari multiple times. For example, in Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, 544, the Court addressed the validity of an initiative measure in the nature of a zoning ordinance limiting municipal growth that was inconsistent with a city’s general plan. Citing deBottari, the Court held that “Ta] zoning ordinancethat is inconsistent with the generalplan is invalid whenpassed [citations] and onethat wasoriginally consistent but has becomeinconsistent must be brought into conformity with the generalplan.” (Id. at 541.) See also Citizens ofGoleta Valley, supra, 52 Cal. 3d at 572 [citing deBottari for the proposition that “the keystoneofregional planningis consistency -- between the general plan, its internal elements, subordinate ordinances, and all derivative land-use decisions”]; Orange Citizens, supra, 5 Cal.5" at 153 [“[T]he requirement of consistency ... infuse[s] the concept of planned growth with the force of law”].) 3 Although a general law city (such as the City) is subject to the provisions of the statewide zoning law,a charter city is not so bound unlessit adopts such provisions by charter or ordinance. (City ofIrvine, supra, 25 Cal. App. 4* at 875.) 4820-0197-7675v1 -6- TPM\23891002 In this case, the court of appeal explicitly confronted, and rejected, the holding of deBottari. As noted, it stated that “a referendum petition challenging an ordinance that attempts to make the zoning fora parcel consistent with the parcel’s general plan land use designationis 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.” (Slip op. at *2.) The court of appeal’s decision rested on its view of the effect of Sections 65860(a) and (c). It reasonedthat “[t]he electorate may notutilize the initiative power to enact a zoning inconsistent with a general plan because section 65860 precludes enactment of a zoning that is inconsistent with a general plan.” (Slip op. at *6,)(emphasis in original) But, the court of appeal continued, “[S]ection 65860 permits the maintenance ofinconsistent zoning pending selection of a consistent zoning. (/bid.)(emphasisin original) Therefore, according to the court of appeal, “‘[t]he electorate’s exercise of its referendum powerto reject or approve City’s attempt to select a consistent zoning for the parcel simply continued that permitted maintenance ofinconsistent zoning. The referendum does not seek to enact anything.” (/bid.)(emphasisin original) The court of appeal went on to characterize the reasoning of deBottari and City ofIrvine as “flawed” because [U]nlike an initiative, a referendum cannot ‘enact’ an ordinance. A referendum that rejects an ordinance simply maintains the status quo. Hence, it cannot violate section 65860, which prohibits the enactmentof an inconsistent zoning ordinance. Section 65860 does not automatically renderinvalid a preexisting zoning ordinance that becomesinconsistent only after a subsequent general plan amendment. (Slip op. at *8.) 4820-0197-7675v1 _7- TPM\23891002 There is no avoiding the decisional conflict amongthe intermediate appellate courts that the court of appeal’s decision in this case creates. The courts in deBottari and City ofIrvine held that the electorate may not be presented with a referendum that offers a choice between zoningthatis consistent with a city’s general plan, on the one hand, and zoningthatis inconsistent, on the other. The court of appeal in this case held that, in the face of an otherwise qualified referendum petition, the voters must be put to such a choice. The court of appealin its decision takes deBottari and City of Irvine head on, and rejects their reasoning as flawed based on its own, differing interpretation of the effect of Sections 65860(a) and (c). (Slip op. at *8.) The court of appeal’s decision overturns over 30 years of certainty in the case law. Review is thus necessary to secure uniformity of decision in the published case law. The court of appeal’s published decision in this case additionally warrants review because it concerns matters of broad public importance throughout California. The decision addresses the proper scope of the legislative power over land use and development whenit is exercised not by local agencies but by the voters. Cities and counties as well as voters seeking to exercise the referendum powerneed to knowthe limits of that powerto pass on ordinances adopted to conform the existing zoning ofproperty to amendedor newly adopted general plans. Moreover, as this Court said in Lesher, “persons whoseek to developtheir land are entitled to know what the applicable law is at the time they apply for a building permit. City officials must be able to act pursuant to the law, and courts must be able to ascertain a law’s validity and to enforce it.” (Lesher, supra, 52 Cal.3d at 544.) As a result of the decision in this case, it is now unclear whether or when cities and counties must place on the ballot referenda that would, if 4820-0197-7675v1 -8- TPM\23891002 successful, result in property being zoned inconsistent with a general plan. This case thus further implicates the interests of local governments and property ownersin certainty in zoning. The question that this case raises is onelikely to recur, as it has been addressed three times so far in published decisions. Finally, this case was decided as a matter of law on an undisputed record. The issue presented is onethatis joined directly. The caseis therefore an ideal vehicle to answer the question presented and to resolve the split of authority among the intermediate California appellate courts. There is no reason to delay resolving that conflict. Indeed, any such delay would be harmful becausecities and counties, property owners, voters, and courts throughout California will not know which view ofthe law is correct and how to govern themselves accordingly. The Court should therefore grant review. B. The Court ofAppeal’s Decision Should Be Reversed. The court of appeal’s decisionin this case, includingits rejection of deBottari, supra, 171 Cal.App.3d 1204 and City ofIrvine, supra, 25 Cal.App.4" 868, rested on its conclusion that Section 65860 does not invalidate existing zoning that becomes inconsistent with a general plan as a result of the amendmentofthe general plan. The court of appeal reasoned that because Section 65860(c) permits the maintenanceof inconsistent zoning for a reasonable time, the inconsistent zoning is not automatically rendered invalid. (Slip op. at *5.) However, the court of appeal’s construction of Section 65860 is incorrect. It is unsupported by that statute’s text and purpose. It is also at odds with this Court’s view ofthe effect of that statute. It would additionally frustrate the policy of early certainty in land 4820-0197-7675v1 -9- TPM\23891002 use matters that the Planning and Zoning Law,Section 65000et seq., embodies. 1. The Court ofAppeal’s Decision Rests on an Incorrect View of the Effect of Government Code Section 65680 When Zoning is Made Inconsistent by General Plan Amendment In its decision, the court of appeal stated that “section 65860 only prohibits the enactment of an inconsistent zoning ordinance” whereas “[a] referendum that rejects an ordinance simply maintains the status quo.” (Slip op at *8.) The court of appeal further stated that “[s]ection 65860 does not automatically render invalid a preexisting zoning ordinance that became inconsistent only after a subsequent general plan amendment.” (/bid.) Based on this conclusion, the court of appeal rejected as flawed the court’s . reasoning in deBottari, supra, 171 Cal.App.3d 1204, in which Division Two of the Fourth District held that a city need not present to the voters a referendum whose passage wouldresult in property being zoned in a manner inconsistent with the city’s general plan becausethe invalidity of the proposed referendum underSection 65860 had been “clearly and compellingly demonstrated.” (deBottari, supra, 171 Cal.App.3d at 1212.) Instead, the court of appealin this case ruled that“section 65860 permits the maintenance ofinconsistent zoning pending selection of a consistent zoning” and “t]he electorate’s exercise of its referendum powerto reject or approve City’s attempt to select a consistent zoning for the parcel simply continued that permitted maintenance on inconsistent zoning.” (Slip op at *6.) However, on its face Section 65860 does not prohibit only the “enactment” of an inconsistent zoning ordinance,as the appellate court in this case suggested. (Slip op.at * 8 [“A referendum that rejects an ordinance simply maintains the status quo. Hence, it cannot violate section 65860, 4820-0197-7675v1 -10- TPM\23891002 which prohibits the enactment of an inconsistent zoning ordinance’’].)(emphasis in original) Rather, Section 65860(a) simply provides generally that county or city zoning ordinancesshall be consistent with the general plan of the county orcity. The fact that Section 65860(c) allows a city a “reasonable time”to make zoning consistent with a new or amended general plan does not mean that inconsistent zoning remainseither valid or effective after the inconsistency arises. To the contrary, a general law city such as the City cannot allow a property to be developed in a mannerthat is inconsistent with the general plan at any time. As this Court recently stated, “[{t]he propriety of virtually any local decision affecting land use and development depends upon consistency with the applicable general plan andits elements ... see §§ 65359 [requiring that specific plans be consistent with the general plan], 66473.5 [same with respect to tentative maps and parcel maps], 65860 [same with respect to zoning ordinances], 65867.5, subd. (b) [same with respect to development agreements].” (Orange Citizens, supra, 2 Cal.5th 141, 153.)(internal quotations and citations omitted). This overarching requirement that development be consistent with the applicable general plan meansthat zoning madeinconsistent by a general plan amendmentcannotbe enforced oncethe inconsistency arises. Like the void zoning ordinance adopted by initiative in Lesher, which this Court held could not be given legal effect (Lesher, supra, 52 Cal.3d at 544), ML-Light Industrial zoning on River Park’s parcel was also rendered without legal effect at the timeit became inconsistent with the general plan because the property may no longer be developed for new industrial uses. Moreover, “[t]he obvious purpose of [Section 65860] subdivision (c) is to ensure an orderly process of bringing the regulatory law into conformity 4820-0197-7675v1 -I1- TPM\23891002 with a new or amendedgeneral plan, not to permit developmentthatis inconsistent with thatplan.” (Lesher, supra, 52 Cal. 3d 531, 546.)(emphasis added) This statement of Section 65860(c)’s procedural purpose cannot be read to suggest that development may be allowed under the inconsistent zoning until some “reasonable time”ofuncertain length elapses. Instead, the purpose of Section 65860(c) indicates that, when a city or county adopts a new or amendedgeneralplan, the preemptive effect of Section 65860 operates immediately to make any newly inconsistent zoning ineffective as soon as the inconsistency arises. Thus, even if Section 65860(c) permits the maintenanceof inconsistent zoning pending selection of consistent zoning,as the court of appeal concluded(slip op. at *6), the inconsistent zoning does not remain legally effective or enforceable in the meantime. A procedural provision such as Section 65860(c) should notbe interpreted soasto nullify Section 65860(a)’s basic consistency requirement. In addition, in Lesher, supra, 52 Cal.3d 531, 544, this Court addressed the preemptive effect of the Planning and Zoning Law onaninitiative that sought to adopt a zoning ordinance inconsistent with a city’s general plan. In holding the zoning ordinance to be invalid, the Court stated that “[a] zoning ordinancethat conflicts with a general plan is invalid at the timeit is passed.” (Lesher, supra, 52 Cal. 3d at 544.) As noted, this Court cited deBottari for that proposition, even though deBottari had concernedthe validity of a proposed referendum that offered a choice between consistent zoning and existing inconsistent zoning rather than an initiative seeking to adopt inconsistent zoning in the first instance. The Court in Lesher wentontostate that “[t]he court does not invalidate the ordinance. It does no more than determine the existence of the conflict. It is the preemptive effect of the controlling state statute, the Planning and Zoning Law, which invalidates the 4820-0197-7675v1 -12- TPM\23891002 ordinance.” (Lesher, supra, 52 Cal. 3d at 544.) The reasoning ofLesher as well as the purpose of the consistency requirement to ensure general plan supremacy in development matters should apply equally to both newly adopted inconsistent zoning, as in Lesher, as well as to zoning that becomes inconsistent when the general plan is amended, as in deBottari andin this case. In its decision, the court of appeal pointedly stated that the zoning challenged by referendum was “one of a numberofavailable consistent zonings.” (Slip op. at 8.) However, the court of appeal did not explain why the purported existence of other available zonings should be significantto its analysis. Given the language of Section 65860 and its preemptive purpose, the existence of alternative consistent zonings should not bear on the proper interpretation of Section 65860 and its preemptive effect on existing zoning rendered inconsistent by a general plan amendment. As this Court stated in Lesher,“t]he validity ofthe ordinance under which permits are granted, or pursuant to which developmentis regulated, may not turn on possible future action by the legislative body or electorate.” (Lesher, supra, 52 Cal. 3d at 544.) Nor can deBottari be distinguished from this case on the basis that the City’s council had other zoning options. In deBottari the court rejected the referendum proponents’ analogous contention that if the referendum was successful the city council was free to enact some alternative zoning scheme. (deBottari, supra, 171 Cal.App.3d at 1212.) In addition, Section 65860’s consistency requirement would presumably bar the City’s city council from repealing O-2131 in favor of a zoning designation inconsistent with the City’s general plan. Yet the court of appeal’s decision in this case would countenancethat sameresult, if the 4820-0197-7675v1 -13- TPM\23891002 legislative power were exercised not by the city council but by the voters. However,the local electorate’s right to initiative and referendum “is generally co-extensive with the legislative power of the local governing body ... 2 (DeVita v. County ofNapa (1995) 9 Cal.4" 763, 775-776.) Therefore, the legislative poweroverlocal affairs should be circumscribed by Section 65860’s consistency requirement in the same way, no matter whetherit is exercised by the voters by referendum petition or by the voters’ elected representatives. And, althoughthe local electorate’s right to referendum may,like its powerofinitiative, be set forth in the California Constitution (ibid.), there is no point “in putting before the people a measure which they have no power to enact.” (American Federation ofLabor v. Eu (1984) 36 Cal.3d 687, 697.) Indeed,“{t]he presence of an invalid measure on the ballot steals attention, time and money from the numerousvalid propositions on the sameballot. It will confuse somevoters and frustrate others, and an ultimate decision that the measureis invalid, coming after the voters have voted in favor of the measure, tends to denigrate the legitimate use of the initiative procedure.” (Ibid.) Such concernsarise equallyregardless ofwhether the measurearises by initiative or referendum. 2. The Court ofAppeal’s Decision would Impede Well-EstablishedPolicies Promoting Early Certainty in Land Use and Zoning Matters and Lead to Far-Reaching, Harmful Results. Finally, the court of appeal’s reading of Section 65860 would increase uncertainty in zoning and land use, contrary to policies inherent in the Planning and Zoning Law. As this Court observed in Lesher, “persons who seek to develop their land are entitled to know what the applicable law is at the time they apply for a building permit. City officials must be ableto act 4820-0197-7675v1 -14- TPM\23891002 pursuantto the law, and courts must be able to ascertain a law’s validity and to enforce it.” (Lesher, supra, 52 Cal.3d at 544.) The court of appeal’s interpretation of Section 65860 would lock inconsistent zoning in place for months if not years pending a vote on a referendum challenging consistent zoning. During that time any property covered by the inconsistent zoning would be without any valid or effective zoning, and no new development would be permitted in the affected zone. And, should the voters reject a consistent zoning ordinancein favor of existing inconsistent zoning, one could imagine multiple referenda challenging successive attempts to adopt consistent zoning ordinances. The period of uncertainty may also be prolonged by the operation of Election Code section 9241, which prohibits a municipality from re-enacting “essentially the same” zoning for one year after a referendum. The Planning and Zoning Law is replete with provisions intended to prevent extended uncertainty in the available uses of property. (See, e.g., Section 65860(b) [90-day limitations period for actions to enforce compliance with Section 65860’s consistency requirement]; Section 65009 [90-day and one-year limitation period for certain actions or proceedings challenging local zoning and planning decisions; Section 66499.37 [90-day limitations period to challenge decisions concerning subdivisions].) The Court’s interpretation of Section 65860 is at odds with this clear policy of early certainty in land use matters that the Planning and Zoning Lawreflects. The court of appealin this case erred in holding to the contrary. In short—andirrespective ofwhether the City had available to it other consistent zoning that it might have adopted-- the referendum in thiscaseis invalid becauseit offers voters only a choice between valid zoning and zoning that is without legal effect under Section 65860 becauseitis 4820-0197-7675v1 -15- TPM\23891002 inconsistent with the general plan. As such,the trial court could properly decline to allow it to be submitted to the voters. (deBottari, supra, 171 Cal.App.3d at 1210.) V. JOINDER IN AND INCORPORATION BY REFERENCE OF PETITION FOR REVIEW OF CITY OF MORGANHILL. Pursuant to California Rules of Court Rule 8.504(e)(3), River Park joins in and adopts by reference the arguments of the City of Morgan Hill (City) in its Petition for Review. VI. CONCLUSION. The court of appeal’s decision creates a conflict in the decisional law. Moreover, it would affect the rights and powers ofcities and counties, property owners, and voters across the state, and have far-reaching and harmful consequences. Therefore, the Court should grant review. Dated: July 10, 2017 RESPECTFULLY SUBMITTED, BERLINER COHEN (oNBy ’ JOLIEHOUSTON THOMAS P. MURPHY ATTORNEYS FOR REAL PARTY IN INTEREST AND RESPONDENT RIVER PARK HOSPITALITY. INC. 4820-0197-7675v1 -16- TPM\23891002 CERTIFICATE OF WORD COUNT Pursuant to California Rules of Court Rule 85204(d)(1), counsel for Respondent River Park Hospitality, Inc. states that, exclusive ofthis certification, the cover, and the tables, this Petition for Review contains 4,628 words, as determined by the word count of the computer program used to prepare the brief. Dated: July 10, 2017 RESPECTFULLY SUBMITTED, BERLINER COHEN By Gh, 2A THOMASP. MURPHY 4820-0197-7675v1 -|7- TPM\23891002 Filed 5/30/17 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT CITY OF MORGANHILL, No. H043426 (Santa Clara Plaintiff and Respondent, Super. Ct. No. CV292595) V. SHANNON BUSHEY, AS REGISTRAR OF VOTERS,etc., et al., Defendants and Respondents; RIVER PARK HOSPITALITY, Real Party in Interest and Respondent; MORGANHILL HOTEL COALITION, Real Party in Interest and Appellant. 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 wasinvalid 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 attemptsto make the zoning for a parcel consistent with the parcel’s general plan land use designationis notinvalid if the legislative body remainsfree to select another consistent zoning for the parcel should the referendum result in the rejection ofthe 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 amendedits general plan to change the land use designation for this parcel to “Commercial.” The parcel’s zoning was “ML-Light Industrial” before the November 2014 general plan amendment and remained unchangedafter the general plan amendment. In April 2015, City’s city council approved Ordinance no. 2131 (O-213 1). O-2131 would have changedthe 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 wasto prevent the City’s general plan recognizesthree different commercialland use designations: Commercial, General Commercial, and Non-Retail Commercial. developmentof a hotel on the parcel. On May 20, 2015, City adopted a resolution acceptinga 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 changethe 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 resolutioncalling 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 removethe 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 “as duly adopted and effective immediately .. . .” Coalition timely filed a notice of appeal on April 1, 2016. 2 : . . . . River Park claims that the notice of appeal is flawed becauseit states that the appeal is from a March30order, rather than a March29 order, andit identifies the case numberas “16CV292295”instead of “16CV292595.” Thelatter claim is incorrect. The copy of the notice of appeal in the clerk’s transcript (whichis file-stamped)correctly identifies the case numberas “16CV292595.” A copyofthe notice of appeal (whichis not file-stamped) in the joint appendix misstates the case numberas “16CV292295.” Becausethe filed copy of the notice of appeal has the correct case number,it is not flawed in this respect. The superior court’s order was dated March 28 andfiled on March29. It is true that the notice of appeal states that the appeal is from a “March 30, 2016” order, but River Park admitsthat it was not misled by this slight error. II. Analysis Theparties agree that we exercise de novo review becausethe facts are undisputed and the only issue is one of law. “The referendum is the powerofthe electors to approve or reject statutesor parts of statutes except urgency statutes, statutes calling elections, and statutes providing for tax levies or appropriations for usual current expenses of the State.” (Cal. Const., art. II, § 9.) “The referendum process allowsthe voters to veto statutes and ordinances enacted by their elected legislative bodies before those laws becomeeffective. [Citation.] Referenda do not enact law and maynotaddresscertain subjects. In contrast, the electorate may legislate on any subject by initiative.” (Referendum Committee v. City of Hermosa Beach (1986) 184 Cal.App.3d 152, 157-158.) Ifa 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.” (Elec. Code, § 9237.) “If the legislative body does not entirely repeal the ordinance against whichthe petitionis filed, the legislative body shall submit the ordinanceto the voters .... The ordinance shall not becomeeffective until a majority of the voters voting on the ordinance votein favorofit. If the legislative body repeals the ordinance or submits the ordinanceto the voters, and a majority of the voters voting on the ordinance do notvote in favorofit, the ordinance shall not again be enacted by the legislative body for a period of one yearafter the date ofits repeal by the legislative body “The notice of appeal mustbe liberally construed. The notice is sufficientif it identifies the particular judgmentor order being appealed.” (Cal. Rules of Court, rule 8.100(a)(2).) “[N]Jotices of appealare to be liberally construed so as to protect the right of appealif it is reasonably clear whatappellant was trying to appeal from, and wherethe respondent couldnot possibly have been misled or prejudiced.” (Luz v. Lopes (1960) 55 Cal.2d 54, 59.) Since the superior court issued noorderin this case on March 30, respondents could not possibly have been misledor prejudiced bythis slight flaw in the notice of appeal. Wereject River Park’s challenges to the validity of the notice of appeal. or disapproval by the voters.” (Elec. Code, § 9241; see Rossi v. Brown (1995) 9 Cal.4th 688, 697.) “(T]he rezoning of land is a legislative act [citation] subject to referendum [citation].” (Yost v. Thomas (1984) 36 Cal.3d 561, 570.) “A zoning ordinanceshall be consistent with a city or county general plan... .” (Gov. Code, § 65860, subd. (a).)° “A zoning ordinancethat conflicts with a generalplan is invalid at the time it is passed.” (Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, 544 (Lesher).) However,“[i]n the event that a zoning ordinance becomesinconsistent with a general plan by reason of amendmentto the plan, or to any elementoftheplan,the zoning ordinanceshall be amendedwithin a reasonable timeso thatit is consistent with the general plan as amended.” (§ 65860, subd. (c).) “The obvious purposeof subdivision (c) is to ensure an orderly processofbringing the regulatory law into conformity with a new or amendedgeneral plan... .” (Lesher, at p. 546.) In this case, City’s ML-Light Industrial zoningfor the parcel did not automatically becomeinvalid in November 2014 because that zoning was consistent with City’s general plan prior to the general plan amendment. Instead, City had “a reasonable time” under section 65860, subdivision (c) to amend the zoning of the parcel to make it consistent with the general plan. O-2131 was City’s attempt to do so. The question beforeusis whether the voters could validly utilize the power of referendum to reject City’s chosen method of makingthe parcel’s zoning consistent with the general plan. “T]he local electorate’s right to initiative and referendum is guaranteed by the California Constitution . . . and is generally co-extensive with the legislative power ofthe local governing body. ... [{] ... [However,] the initiative and referendum power [cannot] be used in areas in which the locallegislative body’s discretion [is] largely Subsequentstatutory references are to the Government Code unless otherwise specified. preemptedbystatutory mandate.” (DeVita v. County ofNapa (1995) 9 Cal.4th 763, 775- 776.) City claims that the electorate’s referendum power cannotbe used to reject O-2131, because City’s discretion with respect to the zoning of the parcel was preempted by section 65860’s mandate that the parcel’s zoning be consistent with City’s general plan. The problem with this argumentis that section 65860 did not require City to adopt O-2131. It preempted City from enacting a new zoning that wasinconsistentwith the generalplan, butit did not preclude City from exercising its discretionto select one of a variety of zoning districts for the parcel that would be consistent with the generalplan. Since City retained this discretion, section 65860 did not preclude the electorate from exercising its referendum powerto reject City’s choice of zoning district in O-2131. City puts misplaced reliance on cases concerning the initiative power. (Mission Springs Water District v. Verjil (2013) 218 Cal.App.4th 892, 919 [initiative]; Lesher, supra, 52 Cal.3d at p. 541 [initiative]; Legislature v. Eu (1991) 54 Cal.3d 492[initiative]; Mervynnev. Acker (1961) 189 Cal.App.2d 558 [initiative].) The electorate may not utilize the initiative power to enact a zoning inconsistent with a general plan because section 65860 preludes enactmentofa zoning that is inconsistent with a generalplan. (Lesher, at p. 541.) However, section 65860 permits the maintenanceof inconsistent zoning pending selection of a consistent zoning. Here, City permissibly maintained the inconsistent zoning of the parcel after the November 2014 amendmentofthe general plan. Theelectorate’s exercise ofits referendum powerto reject or approve City’s attempt to select a consistent zoning for the parcel simply continued that permitted maintenanceofinconsistent zoning. The referendum does not seek to enact anything. Sinceit is undisputed that City could have selected any of a numberof consistent zoning districts to replace the parcel’s inconsistent zoning, section 65860 did notpreclude City or the electorate from rejecting the one selected by City in O-2131. We must confront deBottari, as the superior court relied on it, and City continues to rely on it. In deBottari, the City of Norco amendedits general plan to changethe land use designation for a parcel “from residential/agricultural (0-2 units per acre) to residential-low density (3-4 units per acre).” Two weeksafter the general plan amendment, Norco adopted an ordinance to rezonethe parcel “from ‘R-1-18’ to ‘R-1-10.’” The new zoning ordinance changed the minimum lot size required forsingle family homesonthe parcel from 18,000 square feet to 10,000 square feet, which was consistent with the general plan amendment. (deBottari, supra, 171 Cal.App.3dat pp. 1207-1208.) A timely and sufficient referendum petition was submitted challenging the zoning change. However, Norcorefused to repeal the zoning changeor place the referendum before the voters becauseit claimed that the repeal of the zoning change “would result in the subject property being zoned inconsistently with the amended general plan, contrary to Government Codesection 65860, subdivision (a).” The proponents of the referendum unsuccessfully challenged Norco’s refusalin the superior court and then appealed to the Fourth District Court of Appeal. (deBottari, at p. 1208.) On appeal, the Fourth District concludedthat“the invalidity of the proposed referendum has been clearly and compellingly demonstrated” by the existence ofsection 65860. (deBottari, supra, 171 Cal.App.3dat p. 1212.) The Fourth District reasoned: “Repeal of the zoning ordinance in question would result in the subject property being zonedfor the low density residential use while the amendedplan calls for a higher residential density.” It rejected the proponents’ argumentthat section 65860, subdivision (c) permitted Norco to “enact some alternative zoning scheme whichis consistent with the general plan”if the voters rejected the zoning change. (/bid.) “Unfortunately, all of the options offered by plaintiff beg the question of whether the voters, ab initio, have the right to enact an invalid zoning ordinance. Clearly, section 65860, subdivision (c), was enacted to providethe legislative body with a ‘reasonabletime’ to bring zoninginto conformity with an amended generalplan. It would clearly distort the purpose of that provision were weto construeit as affirmatively sanctioning the enactment of an inconsistent zoning ordinance.” (/d. at pp. 1212-1213.) The Fourth District concluded that Norco had properly refused to submit the referendum to the voters. “[T]he referendum,if successful, would enact a clearly invalid zoning ordinance. Judicial deferenceto the electoral process does not compeljudicial apathy towardspatently invalid legislative acts.” (Ud. at p. 1213.) The Fourth District’s reasoning in deBottari is flawed." As wehave already explained, unlike an initiative, a referendum cannot“enact” an ordinance. A referendum that rejects an ordinance simply maintainsthe status quo. Hence,it cannot violate section 65860, which prohibits the enactmentof an inconsistent zoning ordinance. Section 65860 does not automatically render invalid a preexisting zoning ordinance that became inconsistent only after a subsequent general plan amendment. Where,as here, an ordinance attempts to resolve that inconsistency by replacing the inconsistent zoning with a consistent zoning that is just one of a numberofavailable consistent zonings, the legislative body is free to choose oneof the other consistent zonings if the electorate rejects the legislative body’s first choice of consistent zonings. The new zoning ordinancewill be valid, notwithstanding the referendum,so long as “the new measureis ‘essentially different’ from the rejected provision and is enacted ‘not in bad faith, and not with intent to evade the effect of the referendum petition’ ....” (Assembly v. Deukmejian (1982) 30 Cal.3d 638, 678.) Consequently, the existenceof section 65860 does not establish the invalidity of Coalition’s referendum. The Fourth District’s decision in City ofIrvinev. Irvine Citizens Against Overdevelopment (1994) 25 Cal.App.4th 868, which simplyrelied on deBottari’s rationale, suffers from the same flaw. (/d. at pp. 874-875.) 5 . 24: : . Weexpressno opinion onthe validity of a referendum challenging an ordinance that choosesthe only available zoning that is consistent with the generalplan. III. Disposition The superior court’s order granting City’s petition is reversed. On remand, the superior court is directed to enter a new order denying City’s petition. Coalition shall . 6 recoverits costs on appeal. In its reply brief, Coalition requests attorney’s fees under Code of Civil Procedure section 1021.5. Coalition has not filed a motion for attorney’s fees or any supporting documentation. Appellate attorney’s fees may be sought by motionin the trial court. (Cal. Rules of Court, rule 3.1702(c).) Mihara,J. WE CONCUR: Elia, Acting P.J. Bamattre-Manoukian,J. City of Morgan Hill v. Bushey, as Registrar of Voters,etc. etal. 10 H043426 11 Trial Court: Trial Judge: Attorneys for Plaintiff and Respondent, City of Morgan Hill: Attorneys for Defendant and Respondent, Shannon Bushey, as Registrar of Voters, etc.: Attorney for Defendant and Respondent, Irma Torrez, as City Clerk, etc.: Attorneys for Real Party in Interest and Respondent, River Park Hospitality: Attorneys for Real Party in Interest and Appellant, Morgan Hill Hotel Coalition: Santa Clara County Superior Court Honorable Theodore C. Zayner Katherine A. Alberts Louis A. Leone Ionan Mondescu Leone & Alberts Donald Alan Larkin Office of the City Attorney James R. Williams County Counsel Steve Mitra Assistant County Counsel Danielle Luce Goldstein Deputy County Counsel Scott D. Pinsky Law Offices of Gary M. Baum Jolie Houston Thomas P. Murphy Berliner Cohen, LLP Asit S. Panwala Law Office of Asit Panwala Jonathan Randall Toch J. Randall Toch, Attorney at Law City of Morgan Hill v. Bushey, as Registrar of Voters, etc. et al. H043426 12 Court of Appeal. Sixth Anpellale District Daniel P. Poller, ClerksAdministrator Electronically FILED on 6/23/2017 by B. Mitler, Deputy Clerk IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT CITY OF MORGANHILL, Plaintiff and Respondent, v. SHANNONBUSHEY, AS REGISTRAR OF VOTERS,etc.et al., Defendants and Respondents; MORGANHILL HOTEL COALITION, Real Party in Interest and Appellant; RIVER PARK HOSPITALITY, Real Party in Interest and Respondent. H043426 Santa Clara County No. CV292595 BY THE COURT*: Respondents’ City of Morgan Hill and River Park Hospitality’s petitions for rehearing are denied. Dated 06/23/7017 Acting P.J. *Before Elia, Acting P.J., Bamattre-Manoukian, J., and Mihara,J. IN THE SUPREME COURT OF THE STATE OF CALIFORNIA CITY OF MORGANHILL,a municipality, Plaintiff and Respondent, V. SHANNON BUSHEY, AS REGISTRAR OF VOTERS,etc., et al., Defendants and Respondents. RIVER PARK HOSPITALITY, Real Party in Interest and Respondent. MORGANHILL HOTEL COALITION, Real Party in Interest and Appellant. Case No. Sixth Dist. No. H043426 Santa Clara Superior Court Case No. 16-CV-292595 After a Decision by the Court ofAppeal Sixth Appellate District, Case No. H043426 Superior Court, Santa Clara County Case No. 16-CV-292595 CERTIFICATE OF SERVICE JOLIE HOUSTON, CASB 171069 *THOMASP. MURPHY, CASB 121251 BERLINER COHEN TEN ALMADEN BOULEVARD ELEVENTH FLOOR SAN JOSE, CALIFORNIA 95113-2233 TELEPHONE:(408) 286-5800 FACSIMILE:(408) 998-5388 ATTORNEYSFOR PETITIONER, REAL PARTY IN INTEREST AND RESPONDENT RIVER PARK HOSPITALITY,INC. 4820-0197-7675v1 TPM\23891002 377-8556v1 38914002 10 i 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CITY OF MORGAN HILL V. SHANNON BUSHEY, ET AL/MORGAN HILL HOTEL COALITION VS. RIVER PARK HOSPITALITY,INC. COURT OF APPEAL SIXTH APPELLATEDISTRICT CASE NO. H043426 SANTA CLARA SUPERIOR COURT CASE NO. 16-CV-292595 PROOF OF SERVICE I, Debra Troy, declare under penalty of perjury underthe laws of the United States that the following facts are true and correct: I am a citizen of the United States, over the age of eighteen years, and not a party to the within action. I am an employee of Berliner Cohen, and my business address is Ten Almaden Boulevard, Suite 1100, San Jose, California 95113-2233. On JULY 10, 2017, I served the following document(s): RIVER PARK HOSPITALITY, INC.’S PETITION FOR REVIEW in the following manner: by transmitting via facsimile the document(s) listed aboveto the fax number(s) set forth below, or as stated on the attached servicelist, from the sending facsimile machine telephone numberof (408) 938-2577. The transmission was reported as complete and withouterror by the machine. Pursuant to California Rules of Court, Rule 2008(e)(4), I caused the machine to print a transmission record of the transmission, a copy of which is attached to the original of this declaration. The transmission report wasproperly issued by the transmitting facsimile machine. xX by placing the document(s) listed above in a sealed envelope with postage thereonfully prepaid, in the United States mail at San Jose, California addressedasset forth below. Or by overnight mailby placing the document(s) listed above in a sealed overnight mail envelope with postage thereon fully prepaid, addressed as set forth below,as indicated. by personally delivering the document(s) listed above to the person(s) at the address(es) set forth below. by e-mail or electronic transmission. I caused the documentsto be sentto the personsat the e- mail addresseslisted below. I did notreceive, within a reasonabletimeafter the transmission, any electronic messageorother indication that the transmission was unsuccessful. CLERK OF THE COURT OF APPEAL CLERK OF THE SUPERIOR COURT COURT OF APPEAL, SIXTH APPELLATE SANTA CLARA SUPERIOR COURT DISTRICT 191 N. FIRST STREET 333 W. SANTA CLARA STREET SAN JOSE, CA 95113 SAN JOSE, CA 95113 ATTORNEYS FOR APPELLANT/REAL COUNSEL FORCITY OFMORGAN HILL: PARTY IN INTEREST MORGAN HILL HOTEL COALITION: KATHERINE ALBERTS LEONE & ALBERTS ASIT S. PANWALA 2175 N. CALIFORNIA BLVD., SUITE 900 LAW OFFICE OF ASIT PANWALA WALNUT CREEK, CA 94596 4 EMBARCADERO CENTER, SUITE 1400 SAN FRANCISCO, CA 94111 TELEPHONE: 415-766-3526 377-8556v1 3891002 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COUNSEL FORREGISTRAR OF VOTERS: DANIELLE GOLDSTEIN SANTA CLARA COUNTY COUNSEL OFFICE 70 W. HEDDING STREET FLOOR 9, EAST WING SAN JOSE, CA 95110 COUNSEL FOR IRMA TORREZ: SCOTT D. PINSKY LAW OFFICES OF GARY M. BAUM MORGANHILL CITY ATTORNEY’S OFFICE 17575 PEAK AVENUE MORGANHILL, CA 95037 COUNSEL FORREGISTRAROFVOTERS: JAMESR. WILLIAMS COUNTY COUNSEL SANTA CLARA COUNTY COUNSEL OFFICE 70 W. HEDDING STREET FLOOR 9, EAST WING SAN JOSE, CA 95110 COUNSEL FORREGISTRAR OF VOTERS: STEVE MITRA ASSISTANT COUNTY COUNSEL SANTA CLARA COUNTY COUNSEL OFFICE 70 W. HEDDING STREET FLOOR9, EAST WING SAN JOSE, CA 95110 ATTORNEYS FOR APPELLANT/REAL PARTY IN INTEREST MORGAN HILL HOTEL COALITION: JONATHAN RANDALLTOCH,ESQ. P. O. BOX 66 MORGANHILL, CA 95038 COUNSEL FOR CITY OF MORGANHILL: DONALD ALAN LARKIN OFFICE OF THE CITY ATTORNEY 17575 PEAK AVENUE MORGANHILL, CA 95037 [am readily familiar with my firm’s practice for collection and processing of correspondence for mailing with the United States Postal Service/Express Mail, Federal Express and other overnight mail services, to wit, that correspondence will be deposited with the United States Postal Service/overnight mail service this same day in the ordinary course of business. Executed on July 10, 2017, at San Jose, C ifornia. Cpw—ley Debra Troy J