MORGAN HILL, CITY OF v. BUSHEY

Real Party in Interest, River Park Hospitality, Supplemental Brief

Cal.May 18, 2018

SUPREME COURT COPY IN THE SUPREME COURTOF THE STATE OF CALIFORNIA CITY OF MORGANHILL, a municipality, Case No. S243042 Plaintiff and Respondent, Sixth Dist. No. H043426 Vv. SHANNON BUSHEY, AS REGISTRAR OF VOTERS,etc., et al., Santa Clara Superior Court Case No. 16-CV-292595 Defendants and Respondents. SUPREME COURT RIVER PARK HOSPITALITY, FILED Real Party in Interest and Respondent MAY 1 8 2018 MORGANHILL HOTEL COALITION, Jorge Navarrete Clerk Real Party in Interest and Appellant Deputy After a Decision by the Court ofAppeal Sixth Appellate District, Case No. H043426 Superior Court, Santa Clara County Case No. 16-CV-292595 REAL PARTYIN INTEREST AND RESPONDENT RIVER PARK HOSPITALITY, INC.’S SUPPLEMENTAL 4835-0870-3078v1 TPM\23891002 BRIEF UNDER CRC RULE 8.520(D) JOLIE HOUSTON, CASB 171069 *THOMASP. MURPHY, CASB 121251 BERLINER COHEN, LLP TEN ALMADEN BOULEVARD ELEVENTH FLOOR SAN JOSE, CALIFORNIA 95113-2233 TELEPHONE:(408) 286-5800 FACSIMILE:(408) 998-5388 jolie.houston@berliner.com tom.murphy (@berliner.com ATTORNEYS FOR REAL PARTYIN INTEREST AND RESPONDENT RIVER PARK HOSPITALITY, INC. TABLE OF CONTENTS Page I. INTRODUCTION...0..cccccccccscseseeseceeeeseeeeeeeseeseeeeeeeeeesenesaeeeesseesseeeaees 4 I. ARGUMENT..0..ccececcccceesseeseeseseseseeaececesesesecasecseacseeeeeseeeesesesatsseeeaesseens 4 A. Save Lafayette v. City ofLafayette (2018) 20 Cal.App.Sth B. AttomeyGeneral Opinion Noo17.703(Apa27, 2018).os TIT. CONCLUSION. 0..eeeccceccecccceseccseseeeeeeeeseeseeaeeaeceesaeeeeaeeeeeesaesseseeseeaeeeeenes 8 4835-0870-3078v1 2. TPM\23891002 TABLE OF AUTHORITIES Page Cases Assembly v. Deukmejian (1982) 30 Cal. 3d 638 oo... cccsccccsceeseceseeeecesceseeseeceaeeeeeaeeseeeaesseenetesesecseesnsases 6 deBottari v. City Council (1985) 171 Cal-App.3d 1204 oc cecceeeeseececceceeeeeseeeeesesseteaeesetereneeseeseeaes 4,8 Geiger v. Board ofSupervisors (1957) 48 Cal.2d 832 oo ecescecseccesessceesecsetseeeeseesesseseseeaeseaeeeessetsessseetaesease 7 Lindelli v. Town ofSan Anselmo (2003) 111 Cal.App-4th 1099oeccceccsceseceseneceectecesesseseeeseetsteserseeseeeseas 6 Save Lafayette v. City ofLafayette (2018) 20 CalApp.Sth 057 oo. eccceeccssececceseeeeeeeeeeseeeesseseeeeeeseeseseesreasenee 4,6 Statutes California Rules of Court Rule 8.520(d) .....c. ccc ccsesesecsseeeseesseeeseesseseesessseseess 4 Elections Code section 9241] vo.ccccccccsssccssscesscstssseeseeseessecenesesecsseceseeseessenseneeeees 6 Government Code section 65000... ccccsccessssesecesseceeeceaeeseseeeseseesseesseesseensessues 5 Government Code Section 65860 uu... ccccccsssseesscceesseessnecessssecesssseeessecsscessuss 6,8 Government Code section 65862 ...........ccecceseceesceseeeseeneeeeeneceaeeesneeseeseeaeesessnenaeee 5 Health & Safety Code section 34191.5(b) ....eeeeccceeceececeeeteeeeseeseeeseeseseesseseeneees 7 Other Authorities California Attorney General Opinion No. 17-702 (April 27, 2018) oo. ceeeceeeeceeceseeceeeceeseceaeeacenesaceeeseeseceteaseaeeeasesseaeeeeenes 4,6,8 4835-0870-3078v1 3. TPM\23891002 I. INTRODUCTION. Real Party in Interest and Respondent River Park Hospitality, Inc. (River Park) respectfully submits its supplemental brief under California Rules of Court Rule 8.520(d) to address new authorities that were not available in time to be includedin its briefs on the merits. Those authorities are the decision of Division Fourofthe First Appellate District in Save Lafayette v. City ofLafayette (2018) 20 Cal.App.5th 657 and California Attorney General Opinion No. 17-702 (April 27, 2018). Il. ARGUMENT. A. Save Lafayette v. City ofLafayette (2018) 20 Cal-App.5th 657. In Save Lafayette, supra, 20 Cal.App.5th 657, Division Fourofthe First District held that local voters could use the referendum powerto challenge an ordinance that rezoned a parcel of land to conform its zoning designation to the City of Lafayette’s amended general plan. In soruling, the court relied on and largely followed the Sixth District’s reasoning in the instant case. For the reasons River Park and the City ofMorgan Hill have arguedin their prior briefing, this Court should not follow Sixth District’s rule and instead affirm the rule of deBottari v. City Council (1985) 171 Cal.App.3d 1204. The Save Lafayette case does contain some additional reasoning, beyondthe Sixth District’s rationale in this case, which River Park wishes to address. Specifically, the court in Save Lafayette suggestedthat the result of a referendum rejecting a zoning ordinance adopted to conform inconsistent zoning to an amended general plan “simply stresses the need for a city to amendits general plan and any conflicting zoning ordinanceat the sametime, in order to avoid the result of creating an inconsistent zoning ordinance.” (/d. at 669.) 4835-0870-3078v1 -4- TPM\23891002 However, the Planning and Zoning Law, Government Code section 65000 et seq., does not require that conforming zoning be adoptedat the same time a general plan is amended. Government Code section 65862 does allow hearings on general plan amendments and zoning changes to occurat the same time. It also encourages the concurrent processing of general plan amendments and zoning changesso as to expedite processing of development applications. But that provision also expressly grants local agencies the discretion to adopt zoning changesafter the general plan is amended. As River Park noted in its Reply Brief on the Merits, as a practical matter after a general plan amendmentthe adoption of conforming zoning changes may take time, especially where there are large-scale general plan amendments. (River Park Reply, p. 16.) Moreover, because the general plan is a planning document, it is natural that its implementation by rezoning would comeafter general plan policies are chosen. From the standpoint of a property owner who wishes to develop a new land use that is inconsistent with the property’s current general plan designation, it may be important to see if the city desires to consider such a general plan changeto allow the proposed use before seeking to rezone the property. In part, this is because a rezoning application maycall for the city’s consideration of site- or project-specific information, such as a particularized environmental review, architectural plans, and plans detailing densities, specific uses, hours of use, parking, the numberof affordable housing units, and similar requirements. The preparation of such materials can entail considerable effort and expense. A property owner’s or developer’s concerns about whether to proceed with a full rezoning application, absent a general plan designation permitting a project in the first place, are thus entirely legitimate. 4835-0870-3078v1 -5- TPM\23891002 In addition, Save Lafayette is factually distinguishable from the instant case. The Save Lafayette opinion gives no indication as to whether a purpose of the referendum at issue was to preserve an inconsistent land use. In this case, the purposesofthe referendum, according to its proponents and the Hotel Coalition, were to preserve industrial land and to prevent hotel use (JA 385-386, 480-482), but industrial use of River Park’s parcel would be inconsistent with the City of Morgan Hill’s amended general plan. The approvalofthe referendum at issue in this case, if successful, would prevent the City Council from again attempting to adopt consistent commercial zoning for at least a year after the referendum. This is because a new commercial zoning ordinance would not be “essentially different” from the rejected measure, which soughtto preserve industrial land. (See Elections Code section 9241 [rejected ordinance may not be enacted by legislative body for a period of one year]; Assembly v. Deukmejian (1982) 30 Cal.3d 638, 678 [new measure invalid unless “essentially different” from rejected provision]; Lindelli v. Town ofSan Anselmo (2003) 111 Cal.App.4th 1099, 1110 [in deciding whether a new measureis “essentially the same”or “essentially different” the court focuses on the features that gave rise to popular objection to the challenged measure].) This would deprive the Morgan Hill City Council of any discretion to adopt consistent zoning during that time, thwarting Government Codesection 65860’s consistency mandate. It would also defeat the policy of the City of Morgan Hill’s general plan to allow commercial use. The court in Save Lafayette neither confronted nor addressed such circumstances. B. Attorney General Opinion No. 17-702 (April 27, 2018). Attorney General Opinion No. 17-702, issued April 27, 2018 (the Attorney General Opinion), addresses whether the power of referendum 4835-0870-3078v1 -6- TPM\23891002 applies to a resolution by the City of Hollister approving the execution of an agreementto sell real property for development pursuant to an approved long- range property managementplan for disposing a dissolved redevelopment agency’s property. Such a plan is required by Health & Safety Code section 34191.5, subdivision (b). The Attorney General Opinion determined that the powerof referendum did not apply, for a number of reasons. As particularly relevant to this case, the Attorney General Opinion focused on the potential consequences of referendum.' It stated that “in determining whether referendum power exists as to a particular matter, ‘it is settled that consideration must also be 995given to the consequencesof applying the rule.’” (Attorney General Opinion, p. 8, quoting Geiger v. Board ofSupervisors (1957) 48 Cal.2d 832, 839.) The Attorney General Opinion went on to explain how the potential consequences of a referendum indicated that the referendum powercould not apply to the resolution under consideration: That the referendum powercannot apply here is perhaps best demonstrated by its potential consequences. If Hollister’s resolution were subject to referendum,the disposition and developmentofthe property pursuantto the approved long-range plan could potentially never happen. The electorate could indefinitely prevent the sale of the property for development(as set forth in the approved long-range plan) by rejecting every attempt by Hollister to implement the plan That would completely thwart the redevelopment dissolution law’s purposes to dispose of redevelopment agencies’ property expeditiously in order to fund core governmentservices. It would also conflict with the statutory requirementthat the dissolved agencies’ property be disposed ofas provided in a long-range property management ' The Attorney General Opinion also determinedthat the referendum power did not apply because the resolution at issue was administrative rather than legislative in character. (Attorney General Opinion, pp. 8-9.) 4835-0870-3078v1 -7]- TPM\23891002 plan approved by a successor agency’s oversight board and the Department of Finance. In short, referendum would frustrate the essential goals of the redevelopmentdissolution law. (Attorney General Opinion,p. 10.) Similarly, if the local referendum power were to apply to a zoning ordinance that conformsinconsistent zoning to an amended general plan then general plan consistency would,at best, be delayed (possibly substantially) and at worst potentially never achievedat all. The local electorate could indefinitely prevent the adoption of consistent zoning by rejecting a city’s every attempt to adopt such zoning. This would frustrate Government Code section 65860’s consistency mandate as well as the achievementof general plan policies. Moreover, it would undercut the core principle of general plan supremacyitself by allowing indirect attacks on general plan policies as they are implemented by consistent zoning. Like the resolution at issue in the Attorney General Opinion, the potential consequencesof applying the local referendum powerto a conforming zoning ordinance militate against its application here. HI. CONCLUSION. For over 30 years, deBottari has afforded a brightline rule to guide cities and counties, property owners, voters, and the courts. The Court should reaffirm the rule of deBottari and reverse the judgmentofthe court of appeal. Dated: May 18, 2018 RESPECTFULLY SUBMITTED, BERLINER COHEN,LLP By “f_ (YD JOLIE HOUSTON A THOMAS P. MURPHY ATTORNEYS FOR REAL PARTY IN INTEREST AND RESPONDENT RIVER PARK HOSPITALITY. INC. 4835-0870-3078v1 _g. TPM\23891002 CERTIFICATE OF WORD COUNT Pursuant to California Rules of Court Rule 8.520(c)(1), counsel for Real Party and Respondent River Park Hospitality, Inc. states that, exclusive of this certification, the cover, the tables, any signature block, and any attachment, this Real Party and Respondent River Park Hospitality, Inc.’s Supplemental Brief Under CRC Rule 8.520(d) contains 1,394 words, as determined by the word count of the computer program usedto prepare the brief. Dated: May 18, 2018 4835-0870-3078v1 TPM\23891002 RESPECTFULLY SUBMITTED, BERLINER COHEN, LLP 4 As By Coe . i? . 4 - \ THOMAS P. MURPHY i / 1 CITY OF MORGAN HILL V. SHANNON BUSHEY, ET AL./MORGAN HILL HOTEL COALITION VS. RIVER PARK HOSPITALITY,INC. 2 3 CALIFORNIA SUPREME COURT CASE NO. 8243042 4 COURT OF APPEAL SIXTH APPELLATE DISTRICT CASE NO. H043426 5 SANTA CLARA SUPERIOR COURT CASE NO.16-CV-292595 OF6 I, Karishma Borkar, declare under penalty ofperjury under the lawsofthe United Statesthat 7 the following facts are true and correct: 8 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 9 Boulevard, Suite 1100, San Jose, California 95113-2233. On May 18, 2018, I served the following document(s): 10 REAL PARTYIN INTEREST AND RESPONDENT RIVER PARKHOSPITALITY, 11 INC’S SUPPLEMENTAL BRIEF UNDER CRC RULE8.520(D) 12 in the following manner: 3 by transmitting via facsimile the document(s) listed above to the fax number(s)set forth below,or as stated on the attached servicelist, from the sending facsimile machine telephone numberof 14 (408) 938-2577. The transmission wasreported as complete and withouterror by the machine. Pursuant to California Rules of Court, Rule 2008(e)(4), I caused the machine to print a 15 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. 16 |_X by placing the document(s)listed abovein a sealed envelope with postage thereonfully prepaid, in the United States mail at San Jose, California addressed as set forth below. 17 Orby overnight mail by placing the document(s) listed abovein a sealed overnight mail envelope with postage thereon fully prepaid, addressed as set forth below,as indicated. 18 by personally delivering the document(s) listed aboveto the person(s) at the address(es) set forth below. 19 by e-mail or electronic transmission. I caused the documentsto besentto the personsatthe e- 20 mail addresseslisted below.I did not receive, within a reasonable timeafter the transmission, any electronic message orother indication that the transmission was unsuccessful. 21 ATTORNEYS FOR APPELLANT/REAL COUNSEL FOR CITY OF MORGAN HILL: 22 PARTY IN INTEREST MORGAN HILL KATHERINE ALBERTS HOTEL COALITION: LEONE & ALBERTS 23 ASIT S. PANWALA 2175 N. CALIFORNIA BLVD., SUITE 900 LAW OFFICEOF ASIT PANWALA WALNUT CREEK, CA 94596 24 4 EMBARCADERO CENTER, SUITE 1400 kalberts@leonealberts.com SAN FRANCISCO, CA 94111 25 TELEPHONE: 415-766-3526 asit@panwalalaw.com 26 COUNSEL FORREGISTRAR OF VOTERS: COUNSEL FOR IRMA TORREZ: 27 DANIELLE GOLDSTEIN SCOTT D. PINSKY SANTA CLARA COUNTY COUNSEL LAW OFFICES OF GARY M. BAUM 28 ||| OFFICE MORGANHILL CITY ATTORNEY’S OFFICE 70 W. HEDDING STREET 17575 PEAK AVENUE }0-0877-8556v1 MM\23891002 0-0877-8556v1 123891002 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FLOOR9, EAST WING SAN JOSE, CA 95110 danielle.goldstein@cco.sccgov.org MORGANHILL, CA 95037 pinsky1750@gmail.com COUNSEL FOR REGISTRAROFVOTERS: JAMESR. WILLIAMS COUNTY COUNSEL SANTA CLARA COUNTY COUNSEL OFFICE 70 W. HEDDING STREET FLOOR9, EAST WING SAN JOSE, CA 95110 COUNSEL FORREGISTRAROFVOTERS: STEVE MITRA ASSISTANT COUNTY COUNSEL SANTA CLARA COUNTY COUNSEL OFFICE 70 W. HEDDING STREET FLOOR 9, EAST WING SAN JOSE, CA 95110 ATTORNEYS FOR APPELLANT/REAL PARTY IN INTEREST MORGAN HILL HOTEL COALITION: JONATHAN RANDALL TOCH,ESQ. P. O. BOX 66 MORGANHILL, CA 95038 tochlawfirm@gmail.com COUNSEL FOR CITY OF MORGANHILL: DONALD ALAN LARKIN OFFICE OF THE CITY ATTORNEY 17575 PEAK AVENUE MORGANHILL, CA 95037 donald.Jarkin@morganhill.ca.gov SIXTH DISTRICT COURT OF APPEALS 333 W. Santa Clara St # 1060, San Jose, CA 95113 SANTA CLARA SUPERIOR COURT(Attn: Appeals Unit) 191 N. 1*Street San Jose. CA 95113 COUNSEL FOR LEAGUE OF CALIFORNIA CITIES AMICUS CURIAE Thomas B. Brown Burke, Williams & Sorensen, LLP 1901 Harrison Street, Suite 900 Oakland, CA 94612 [am readily familiar with my firm’s practice for collection and processing ofcorrespondence 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 May 18, 2018, at San Jose, California. oe Karishma Borkar Shen