MORGAN HILL, CITY OF v. BUSHEY

Respondent, City of Morgan Hill, Opening Brief on the Merits

Cal.October 17, 2017

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA CITY OF MORGANHILL, Plaintiff and Respondent, Vv. SHANNON BUSHEY,AS REGISTRAR OF VOTERS,etc., et al., Defendants and Respondents; RIVER PARK HOSPITALITY, Real Party in Interest and Petitioner; MORGANHILL HOTEL COALITION, Real Party in Interest and Respondent. Case No. 8243042 Sixth Dist. No. H043426 Santa Clara Super. Ct. No. 16- CV-292595 SUPREME COURT FILED OCT 17 2017 Jorge Navarrete Clerk Deputy OPENING BRIEF OF PLAINTIFF AND RESPONDENT CITY OF MORGANHILL LOUIS A. LEONE (SBN: 099874) *KATHERINE A. ALBERTS(SBN:212825) LEONE & ALBERTS 2175 N. California Blvd., Suite 900 Walnut Creek, CA 94596 Tel: (925) 974-8600 Fax: (925) 974-8601 Email: [leone@leonealberts.com kalberts@leonealberts.com Attorneys for Plaintiff and Petitioner CITY OF MORGANHILL IN THE SUPREME COURT OF THE STATE OF CALIFORNIA CITY OF MORGANHILL, Plaintiff and Respondent, Vv. SHANNON BUSHEY, AS REGISTRAR OF VOTERS,etc., et al., Defendants and Respondents; RIVER PARK HOSPITALITY, Real Party in Interest and Petitioner; MORGANHILL HOTEL COALITION, Real Party in Interest and Respondent. Case No. 8243042 Sixth Dist. No. H043426 Santa Clara Super. Ct. No. 16- CV-292595 OPENING BRIEF OF PLAINTIFF AND RESPONDENT CITY OF MORGANHILL LOUIS A. LEONE (SBN:099874) *KATHERINE A. ALBERTS(SBN: 212825) LEONE & ALBERTS 2175 N. California Blvd., Suite 900 Walnut Creek, CA 94596 Tel: (925) 974-8600 Fax: (925) 974-8601 Email: Ileone@leonealberts.com kalberts@leonealberts.com Attorneys for Plaintiff and Petitioner CITY OF MORGANHILL TABLE OF CONTENTS QUESTION PRESENTED.........cccccscssseseeceeeeeeeesenseaneeaeeeseesesaeesesesecersneesneeraeeaeeaetaees 7 INTRODUCTION.......cccecccceseecceseeeneeesceeneesnecseeesseeseesaeeseaeesesaeseaessssaenseesatenseneesaseats 7 FACTUAL AND PROCEDURAL BACKGROUND...eeecceeneeesteenenneeneenes 8 A. The History of the Subject Property and the Referendum................ 8 B. Procedural background........ec ececessseessneeceeseceeesseeaseseeeseeseeeteeenseees 9 ARGUMENT......cccccccccesssesssseeseseeseecesecateecerseeessenesseeaeeaeceaeesesecsessessesanesseceeesaeeeeey 10 I STANDARD OF REVIEW .......csccesssceseseeeeeeeneeeeseneretecirensecerensenseeaesaeents 10 I. THE PRESUMPTION IN FAVOR OF THE LOCAL ELECTROATE’S RESERVED LEGISLATIVE POWERIS REFUTTABLEBYA DEFINITE INDICATION THAT THE LEGISLATURE INTENDED TO RESTRICT THAT RIGHT IN MATTERS OF THE STATEWIDE CONCERN... cceccecteeeeseeeessesceeeseeeerenenseeeenenesesseeees 11 IH. THE PLANNING AND ZONING LAW PREEMPTS ALL LOCAL LEGISLATIVE DISCRETION, INCLUDING THE LOCAL ELECTORATE’S RESERVED LEGISLATIVE POWER, ON A MATTER OF STATEWIDE CONCERN — CONSISTENCY OF LAND USE REGULATIONS AND DECISIONS WITH CITY’S GENERAL PLAN...eeececceeerceeeeene eee sraeseeeenetieeeseneteenteags 12 IV. THE LEGISLATURE PREEMPTED THE LOCAL ELECTORATE’S RESERVED LEGISLATIVE POWERS TO BOTH ADOPT AND MAINTAIN A ZONING ORDINANCE THAT IS INCONSISTENT WITH A CITY’S OR COUNTY’S GENERAL PLAN... eeeeeeseeeeeeeeeeesteaeseeueeessaneeseescesuesisseseeessenennernaes 14 A. Section 65860 Preempts the Local Electorate’s Reserved Legislative Power when It Enacts Inconsistent Zoning by an [initiative ........ccccccccccceccnceeseeccsececsececesessececceceeseueseuevscessessescceeucseteseeecs 15 B. Nearly Forty Years of Appellate Precedent Holds That a 2 Referendum, Like the One Here, that Would Revive Inconsistent Zoning Is Invalid...eeeeee eeee ene eeteeeeeereeeeneeenatens 16 . In this Case, the Sixth District’s Decision Expressly Rejected de Bottari and Directly Contradicted the Fourth District Regarding the Issues at the Heart of the Consistency Requirementin the Planning and Zoning Law and the Proper Exercisse of the Electorate’s Reserved Legislative Power.............. 17 . ProperInterpretation of Section 65860, This Court’s Decision In Lesher and the Fundamental Requirement of Consistency and Certainty With Respect to Zoning Dictate that the Court Should Reject the Sixth District’s New Rule in this Case in Favorofthe deBOTTART Rule .0.....eceeececeseeeessceeesseessesesseeeseseennae 18 1. The Sixth’s District’s Conclusion that Section 65860’s Preemptive Effect Does Not Invalidates a Zoning Ordinance MadeInconsistent by Amendmentofthe General Plan Is Contradicted by the Plain Language of Section 65860............... 18 2. The Sixth District’s Finding that Section 65860 Authorizes the MaintenanceofInconsistent Zoning Following Amendment of the General Plan is Similarly Not Supported by the Statutory Language or this Court’s Previous Interpretation of that Language .....sceeeesecsseesscesssssssessessesseessseseeesscesessesessesseesesseeesseate 20 3. The Sixth District’s Objection to deBottari’s Use of the Word “Enacted” Is Not Grounds for Rejecting Its Holding Because Whenthe Electorate Rejects an Ordinance by Referendum, They Repeal a Properly Enacted Ordinance and Revive, or “Re-enact.” The Ordinanceits Superseded...eee24 4. An Inconsistent Zoning Law Is Invalid under Section 65860 Regardless of the Number of Consistent Zoning Choices Available ......cccccccccccesssseceseneececeseeecessseeesesaeeceeseasestiseeennatecneneas 27 5. The Lower Court’s Decision Contradicts and Undermines the Key Public Policies of Certainty and Consistency that Are Fundamental to California Planning and Zoning Law................ 28 V. REMOVING THIS REFERENDUM FROM THE BALLOT WILL NOT DEPRIVE THE PEOPLE OF THEIR RESERVED LEGISLATIVE POWER OVER ZONING... cecceeeseeeereeesneeenates 33 VI. IF THE COURT DECIDES TO UPHOLD THESIXTH DISTRICT’S DECISION IN GENERAL, THE RESULT IN THIS CASE SHOULD BE OVERTURNED AS THE SIXTH DISTRICT FAILED TO UPHOLD THE TRIAL COURT’S FACTUALFINDINGSIN A MANNER THAT INVALIDATES THE REFERENDUMIN THIS CASE, EVEN UNDER THESIXTH DISTRICT’S NEW GENERAL RULE...cece ceeeccseeteereeeeeeeeceeeeeereeeeeseseeeseesseeseesneneeneatee 35 CONCLUSION10... cc cccessescceeeseeeseeceseeeeeeaeecenscesseseesensseseuseesesecseesseessssssesssesseseseeeaeees 46 TABLE OF AUTHORITIES Cases Page(s) Assembly ofState ofCal. v. Deukmejian (1982) 30 Cal.3d 638 ooccieccccccsccsesseccseccescseceseceeseeeceeeersesnecsnessseceeeneceasessseessaetaseneeensenes 22 Assembly v. Deukmejian (1982) 30 Cal.3d 638 voeccccccccccsccsscsssescecesecceeeeseeeseeseteseeseseserseeteenesessssaseesseeessesseeseesnaeneess 5 Associated Home Builders etc., Inc. v. City ofLivermore (1976) 18 Cal.3d 582 vieciccccccccccscseecsecsneceeceneseeserceeesieeseseeseneeereeeeesssesseseeeenieeseeneeey 7, 23 California Cannabis Coalition v. City of Upland (2017) 3 Cal. Sth 924 ooicecccccccccsccssssecsseccseeceessnesnecseeseeseeeeseesseseeseeseesiessrseeseeeeeeseees 7, 15, 30 Citizens ofGoleta Valley v. Board ofSupervisors (1990) 52 Cal.3d 553 cieccccuccccsccsscesecsessecssceeseccesesseesecereeeecesaeeesaeeeseeecesseeeeeseeessenseneeeeesgs 9 City ofIrvine v. Irvine Citizens Against Overdevelopment (1994) 25 Cal.App.4th 868 oo. eeccccesesscseecsessesesensescsecsessenecscssseessesssessnesenenensssensnens 11 City ofL.A. v. Cal. (1982) 138 Cal.App.3d 526 o.ceicccecccssessenseecseenssenssseeesesnrsssereeisnerenesieeeessersseteneseeees 1] City ofMorgan Hill v. Bushey (2017) 12 Cal.App.5th 34 ic cccccssssssesscssseessserecesseseseesseseessenecseenenecsensneraesaseersenecasacates 5 Committee of Seven Thousand v. Superior Court (1988) A5 Cal.3d 491 oooceccccccccccseeneecenrceeeeeeeeessstsessessenseeseeeessseveseseseeseeesseeeeseseseneneeeseees 7 Corona-Norco Unified School Dist. v. City ofCorona (1993) 17 Cab.App.4th 985 oo. ecccesesesesssesssecsssessecssseseeseesesesesseensesenensnesseneeesatiseesenentees 9 County ofLos Angeles v. Lamb (1882) 61 Cal. 196 viecieecccccscscccsscesecsccesecssessesseeseeeesseeseesecsesesusseessesseaseeeneesssasseeeateseseess 20 deBottari v. City Council (1985) 171 Cal.App.3d 1204 oo.cceceeeesecssssssessssssecssensssseneenssnecsssesnessensneenecasiees 2, 10, 12 DeVita v. County ofNapa (1995) Q Cal.4th 763 .....cccccscscscccsseeseeecesteeesecesnsesesseesecesssesesensecseecseesssesessneesneeraes passim Haraguchi v. Superior Court (2008) A3 Cal4th 706 o..cccceccsccccccccsscccscessseccesceceeceeceneeesseeeeseesetssassessseseesseeessseaneseeseees 31 IT Corp. v. Solano County Bd. ofSupervisors (1991) 1 Cal.4th 81 cocci cccccscccsecsssseccseecsecseecaeseeteieessssaeessneceseeseesieesseseeesseeseeee 15, 24 Legislature v. Deukmejian (1983) 34 Cal. 3d 658 coeccccccccccccsccsccsseccceseccsseestesseceeeseeeeessaeesesaeeeseesseesssessessasecnsaensesesseees 29 Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531 ceccccccccccccscccscescceececeseeceeceeeseneesseceseasesseeeessseeesseessesseeeeneeeesees passim Merritt v. City ofPleasanton (2001) 89 Cal.App.4th 1032 ...ccecssssessceesesesssesseeenssessenessseeseneesesserseeseetesnsesisereesserines 6 5 Mission Springs Water Dist. v. Verjil (2013) 218 Cal.App.4th 892 woeeceecsesesesssserserensceeesssessesssesssssenecsseeseesevsesessseesseseenss 6 (0b) in Support ofAppropriate Land Use v. County ofTuolumne (2007 157 Cal.App.4tl 997 oo. cessessesesseecssssesesescsseenessesssssesseesenestecsseeessesseeessesegss 26 Orange Citizensfor Parks & Recreation v. Superior Court (2016) 2 Cal. Sth 141 cicccccccccccccccsssccsesnsceseeeeceeesenesseeceeesaeeeeseseesseesssassseessaeeseneens 9, 25,27 People v. Romero (2008) AA CalAth 386 ooicceccccccccccssscscceseccsessseeeessecsresceeseaeeesesiresseesseeensesssseseaeesnseesegenes 5-6 Pettitt v. City ofFresno (1973) 34 Cal.App.3d 813 ..eccecccscreeessecissssssscsenssecseseesessssnensnscssnensssecesetsenesssesesesenees 27 Resource Defense Fund v. County ofSanta Cruz (1982) 133 Cal.App.3d 800 o...ceccceeseesesssesesssecscsensssesseseessenenenscsssensssenesensenesseeeseessneaens 9 Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220 vicccccccccccccssccsseescsscseceeceeesseceecseeseeneenieeeseesessssessessssesessenentey 20, 21 Selby Realty Co. v. City ofSan Buenaventura (1973) LO Cal.3d 110 cocci ccccccccecssecssessesseseeceseeeeseeseceeesseeeeesseeeneseseesnseesseseeeseeneesenenee 8 SFPP v. Burlington Northern & Santa Fe Ry. Co. (2004) 121 CalApp.4th 452 occsssesseseseessessesecseeeeesseenenesseeesesenesseeecsenesnenteaseeeeees 6 Sierra Club v. Board ofSupervisors (1981) 126 Cal.App.3d 698 [179 Cal.Rptr. 261] ..cccccccccseessseesseteneeeeesteeeesseetenenseetens 12 Swain v. Swain (1967) . 250 Cab.App.2d 1 oiicccccsecseereceeeseesssseenscessesecessesseaesessessenssnesnssiesneeneeetienesass 21 Topanga Assn. for a Scenic Community v. County ofLos Angeles (1974) L1 Cal.3d 506 viiccccccccccscccsscssscseceeeseeeececerecessaeeceseeesscretseessesssseesesessessesneteeseaes 26 Statutes Bus. & Prof. Code, section 11526 ....cccccecceeseesceceeseeesseteesseneseneessesessesseesevseeanees 8 Elec. Code, section 18.22.03 0(F) 0... eceescccessseessssseescessesssesesessesssesneeseeressecnseeaecens 33 Elec. Code, section 18.25.030(H) 0... ceceeeeeesseseseeeeeneeeseceeseesenensseseeteeesseeeneeeneenees 33 Elec. Code, section 18.26.020 ...ciceeeeeeccesssesesseeeeesssesesseessesssessseessseeesseensesseesees 33 Elec. Code, section 18.27 ...ccccecscsccereessieceseesssesesssaseceeesssasesseseesssseeesresseecsesaseaeesey 33 Elec. Code, section 18.27.040(C) cece ceecccsscsseessrscssenesssssessseesssesesesesseseneessessaseges 33 Elec. Code, section 18.28 .....ccceccsecceccsseccceneseeesseeescceseeensessensesssesensesseeeseeeeeeeeeaey 33 Elec. Code, section 18.30.010 wo. cieceeesessceerssreetessseseseensessecseeessesseeseesrenessessens 34 Elec. Code, section 18.32.030(K) ..c.ccceecessscsseeeeessseesessessesesseessseeenseesssesneseaeenees 33 Elec. Code, section 18.34.010 .occicececceecesserssreeeeseesesessesessseesseeseesressnsseneeeegs 34 Elec. Code, section 9241 ..c...cccceecsecsscrecceeeeeesresssnesecrsessssessescesseeeseeeeesseeeseees 31,31 Elec. Code, section 65860 .......ccecccceeceeeceeeeeeeereeneeeeesensesseesaeesseesseasesaseneesseneseateess 32 Gov. Code,section 65009 0... cceeeessseennsseeeeceenereeeesesesssecesesneesseseneseeseeeseneseeetans 25 Gov.Code, section 65060 et S€q. ...ceeeeeccesseeesecesseeetseertsseeesrcsetssesseseteesesesesnetietegs 8 Gov. Code, section 65300 ......ccecesecseereesereeeeereeseeceseeneessssseccsseseesensasesesesseesesseaneegs 8 Gov. Code, section 65300.5 .....ccccceceeesesceesesssessssesssersseseceeenseesesseeeseseeesecgseneeenes 8 Gov. Code, section 65301 w..ccccceecseseeeeeesesneeseesneeeesnecsseseesesesasseseessesssesseeeseeseaeegs 8 Gov. Code, section 65302 o.....ccccscssceesreecceeeceneeensseeesesesssesseeeesseeesseeeenseeeeneesseeeseeees 8 Gov. Code,section 65450 et S€Q. oe cescececsssseeseesssestssesenesesseeeseesseeseseeeseesneeenseenaeegs 8 Gov. Code, section 65700, subd. (a) .o....e eee ee es essessescenseesceseesscssessseesnseneseesnessesseenes 9 Gov. Code, Section 65803 .......ccccceseceeeeesereceeensseesesisesensesecseeeeseseessaeeneeestensesseentes 14 Gov. Code, Section 65860 oeseeesseecsssccseesteseeecsecsesseessieeeseserseeeesnessaeeeees passim Gov. Code, Section 65864 ......ccccecescesceeeseesseessecssseeeeessssnsseseeseseeeseeseseeeeasesseeeseeneees 25 Gov. Code, Section 66022 .......ccececceceeecsseeseseeecsssessesceeesseseensessesenseeseeseeenssenegey 25 Gov. Code, Section 66030 .......ecesesceseccessessessseseessersessnecsessecnssnesseessesesenseneeseenengey 25 Gov. Code, section 66105 et SOQ. ...cseecceesscssesscrecssecsensesesecseeeeensessesneeneenneneenseneeseeas 8 Gov. Code, Section 66473.5 ....cccccccsesseceesesetssessscneecsseessnecsscssesneesseeneseessnessesaesnneees 8 Gov. Code, section 66650 et SOQ. ....seecceecsececscseneenesseeesseeseseetsseeseereteneeteteeetaetaes 8 Gov. Code, Sections 65359 wo...cecccecscsreeesessesseesesseesesteseeecsecsssesecneeceeenecseersseaesneennes 9 Pub. Resources Code, section 27000 et SOQ. oo... eecccsessseeseeestseeenseeeesseeeetseenteeeriees 8 Other California Const., art. II, section 9, subd. (D) oo. ceccceceeeeeeeeteeeseeeeeeeteeesesseeens 20 California Const., art. IT, section 1) oo...eeeeeeeeesessecseeeeeceeeeeneeeseeeeesseesseenseenees 6 QUESTION PRESENTED In its order granting review, this Court directed the parties to address the following question: 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 general plan, when the result of the referendum—if successful—would leave intact the existing designation that does not conform to the amendedgeneral plan? (Order granting Petitions for Review, dated August 23, 2017.) For the manyreasonsthat follow, the answeris no. INTRODUCTION California’s statewide approach to land use—requiringlocalities to create and implementland use general plans to guide long-term growth and conservation to promote regional coordinated planning and prevent haphazard and random growth and development —only works because the State also mandates that all subsequent land use decisions, including zoning, be consistent with the general plan. By nature, this requirement necessitates that as the general plan is amendedor a new oneis adopted, zoning ordinances may have to be amendedor enacted to meetthe Legislature’s consistency mandate. (Cal. Gov. Code § 65860, subd.(c).) Otherwise, any existing zoning that is inconsistent with the new planis rendered invalid by the preemptive effect of Government Code section 65680 (“Section 65860”).’ Oncethe locality has enacted an ordinance to cure any inconsistent zoning, it cannot thereafter reenactment the old, inconsistent ordinance; nor even place an initiative on the ballot for voters to approverestoring that previousinconsistent zoning. Nonetheless, here, Respondent and Real ' All subsequentreferencesare to the Government Codeunless otherwise specified. Party in Interest Morgan Hill Hotel Coalition (“Hotel Coalition”) is trying to do by referendum exactly what Petitioner City of Morgan Hill (“City”) cannotdo bylegislation orinitiative. Specifically, the Hotel Coalition has submitted a referendum petition seeking to repeal the newly enacted consistent zoning ordinance, and reestablish previous zoning whichis inconsistent with City’s new general plan. The local electorate’s reserved legislative power exercised by referendum does not extend beyondCity’s legislative and initiative power in such a manner. Nor, does the referendum powerpermit voters to cause a local entity to violate California law regarding a statewide concern. For nearly forty years, since the decision in deBottari v. City Council (1985) 171 Cal.App.3d 1204,every city, county, voter, property owner and court that has faced this situation has understood that such a referendum wasinvalid and courts could and would remove such referenda from the ballot. And many morecourts, including this one, have cited the deBottari line of cases with approval when deciding related issues. Yet, in this case, the Sixth District Court of Appeal (“Sixth District”) cast aside both stare decisis and the legal analysis universally followed by Californiacourts, deciding simply that the long-established reasoning was “flawed.” However, the Sixth District’s reasoning in this case is the “flawed” reasoning. Its holding is premised on a seriesoffive interrelated factors, each one of whichis contrary to the plain language of Section 65860,this Court’s previousinterpretation of Section 65680, the policies inherent in the State’s Planning and Zoning Law,and/orthe trial court’s undisputed findingsoffact. Moreover, adoption of the Sixth District’s decision would abrogate a clear, bright line test capable of consistent, uniform application by cities, counties, voters, property owners and courts across the State, with a situational rule, ill-suited to practicalities of real world application. The Sixth District’s rule is so uncertain in its interpretation of Section 65860, that the various constituents could not apply it consistently or uniformly. Theresults patchwork of results would is completely contrary to the fundamental policies underlying the statewide concernsat issue in the Planning and Zoning law. For these reasons, as discussed in greater detail below, this Court should overturn the decision of the Sixth District below. FACTUAL AND PROCEDURAL BACKGROUND A. The History of the Subject Property and the Referendum. Atissue in this case is the zoning of a vacant parcel of land located at the 850 Lightpost Parkwayin the City of Morgan Hill (“Subject Property”). (Joint Appendix (“JA”), at 60). The parcels to the south are designated for commercialland use in the City’s General Plan. The parcels to the north, east and west are designated for industrial land use in the General Plan. (Id.) The Subject Property is near U.S. 101 abouthalf a mile from the Cochrane Road-101 highway ramps.(Id.) Prior to November19, 2014, the Subject Property’s General Plan land use designation was “Industrial,” and its zoning was “ML-Light Industrial.” (Id.) On November 19, 2014, the Morgan Hill City Council amendedthe City’s General Plan to changethe land use designation for the Subject Property to “Commercial.”(Id.) No one, including the Hotel Coalition, challenged the General Plan amendmentby writ, referendum or initiative. Therefore, as of November 19, 2014, the Subject Property’s “ML-Light Industrial” zoning was inconsistent with its “Commercial” General Plan land use designation. (Id. at 61.) Following the General Plan amendment, the Subject Property’s owner, Real Party in Interest and Respondent River Park Hospitality, Inc. (“River Park”), applied for a zoning amendmentto change the Subject Property’s zoning to “General Commercial.” (Id. at 60.) The Hotel 10 Coalition opposed the zoning change at various public hearings. On April 1, 2015, the City Council enacted Ordinance No. 2131, which changed the Subject Property’s zoning to “General Commercial,” and madeit consistent with its Commercial General Plan land use designation.(Id. at 60-61; 64, 116, 276.) On May1, 2015, the Hotel Coalition filed a petition for referendum seeking to repeal Ordinance No. 2131 andrevive the parcel’s “ML-Light Industrial” zoning. (Id. at 115, 123, 482.) Despite the Court of Appeal’s statementthat the purpose of the Referendum was limited to preventing a hotel on the Property, the undisputed evidencein the record demonstrates that maintaining the Property’s industrial zoning was a main, if not the main, stated purpose of the Referendum’s intent to repeal the “General Commercial” zoning.” (See JA, at 480, 482,stating “VOTE NO because industrial land is scarce in Morgan Hill. Industrial land creates lucrative careers and opportunities for our residents. Our community needs additional technology and manufacturing jobs rather than forcing residents to commute north to the peninsula. City Council tried lo rezone a three- acre parcel of industrial land to help an out-of-town developerbuild anotherhotel. . . . Voters rejected the City Council’s decision to rezone the land from industrial to commercial by signing a petition. ...”) Based on this determination, thetrial court found that through the Referendum,the Hotel Coalition urged voters to maintain the Property’s industrial zoning. (See JA, at 485:10-13.) B. Procedural Background. On March 11, 2016, City brought an action in the Superior Court of Santa Clara County (the “Superior Court”) of seeking an alternative and * Both the City and River Park filed Petitions for Rehearing regardingthis factual misstatement. (City Pctition for Rehearing, pp. 4-6; River Park Petition for Rehearing, pp. 4-5) The court of appeal denied bothpetitions without comment. (See court of appeal order date June 23, 2017.) 11 peremptory writ to remove the Referendum from the ballot on the grounds that the Referendum wasinvalid pursuant to Section 65860 (becauseif successful it wouldresult in zoning that was inconsistent with the City’s General Plan. (JA, Vol. I at 13.) On March 29, 2016, the Superior Court, relying on deBottari, granted City’s petition. (JA, Vol. IT at 484-487.) In its ruling, the trial court found that “judicial review andaction[on a ballot proposition] may be appropriate in the presence of a clear showing of invalidity of the proposed measure.” The Court finds that such a showingof invalidity has clearly been madeby Petitioner [City], and has not been rebutted by Real Party in Interest [Hotel Coalition]. It is not disputed that the current zoning in question is inconsistent with the City’s General Plan — and therefore, presumptively invalid. [Were the votersto reject the ordinance, that would leave in place an inconsistent- and legally invalid - zoning designation. This result would be the sameasifthe measure to be submitted to the voters asked whether to "enact" inconsistent, legally invalid zoning, and it is precisely the result urged by Real Party in Interest [Hotel Coalition]. (Id.) The Superior Court ordered the referendum removedfrom the ballot and Ordinance No. 2131 certified “as duly adopted and effective immediately ... .” (Id. at 486.) The Hotel Coalition timely filed a notice of appeal on April 1, 2016. (Id. at 495.) On May30,2017, the Sixth District issued a published decision overturning the Superior Court’s writ of mandate andrejecting deBottari as “flawed.”(City ofMorgan Hill v. Bushey (2017) 12 Cal. App.5" 34, 41-43.) The court held that “a referendum petition challenging an ordinance that attempts to make the zoningfor a parcel consistent with the parcel’s general plan land use designation is not invalid if the legislative body remains free to select another consistent zoning for the parcel should the referendumresult in the rejection of the legislative body’s first choice of consistent zoning.” (/d. at 37-38.) “The new zoning ordinance will be valid, notwithstanding the referendum, so long as ‘the new measureis 12 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 existence of section 65860 does notestablish the invalidity of Coalition’s referendum.” (Bushey, supra, 12 Cal.App.5"" at 42.) However, the Sixth District exempted from its decision situations where a referendum challenged the only available consistent zoning. (/d. at 42, n.5.) Both City and River Park filed Petitions for Rehearing. On June 23, 2017, the Court of Appeal denied both Petitions. ARGUMENT I. STANDARD OF REVIEW. This Court interprets constitutional and statutory provisions de novo. (Silicon Valley Taxpayers Ass’n, Inc. v. Santa.Clara County Open Space Auth. (2008) 44 Cal.4" 415, 432). However, this Court reviewsthetrial court’s express and implied findings of fact under the substantial evidence standard. (SFPP v. Burlington Northern & Santa Fe Ry. Co. (2004) 121 Cal.App.4th 452, 461-462.) Il. THE PRESUMPTION IN FAVOR OF THE LOCAL ELECTORATE’S RESERVED LEGISLATIVE POWERIS REBUTTABLEBY A DEFINITE INDICATION THAT THE LEGISLATURE INTENDED TO RESTRICT THAT RIGHT IN MATTERSOF STATEWIDE CONCERN. The issues presented in this case involvethe intersection of fundamental public policies — the local electorate’s reserved legislative powerandthe State’s police power with respect to matters of statewide concern as embodiedin the Planning and Zoning Law. In the California Constitution, the people reserved to themselveslegislative power exercised through initiatives and referendums. (Cal. Const., Art. IT, §11.) Asthis Court stated in De Vita v. County ofNapa (1995) 9 Cal.4" 763, 775-776, “it is ‘the duty of the courts to jealously guard this right of the people’ 13 [citation] .... It has long been our judicial policy to apply a liberal construction to this power whereverit is challenged in orderthat the right to local initiative or referendum be not improperly annulled.” (/d. [citations omitted].) However,this presumption in favor of the local electorate’s reserved legislative poweris rebuttable. (/d., at 776.) It is axiomatic that the local electorate’s powerto enact and approvelegislation through the referendum and initiative process is equal to the local government’s legislative power. (Lesher Communications, Inc., 52 Cal.3d at 540; Merritt v. City of Pleasanton (2001) 89 Cal.App.4th 1032, 1035.) Ifa city is prohibited from exercising their legislative power in a certain wayor in a certain area, becauseit would conflict with existing State statutes, then the people are also prohibited from exercising their legislative power as well. (Mission Springs Water District v. Verjil (2013) 218 Cal.App.4th 892, 920-921.) Therefore, “the Legislature, as part of the exercise of its power to preempt all local legislation in matters of statewide concern,” can restrict the local electorate’s reserved legislative power. (DeVita, supra, 9 Cal.4th at 776.) A State statute preempts the local electorate’s reserved legislative power whenit concerns matters of statewide concern and contains a definite indication of the Legislature’s intent to restrict the electorate’s legislative discretion. (/d.) The Legislature evidences such intenteither by an absolute ban onlegislative discretion or by delegation of discretion solely to city councils or county boards of supervisors. (/d.; see also, California Cannabis Coalition v. City of Upland (2017) 3 Cal.5th 924, 944 (an absolute ban,i.e., “No general tax shall be imposed, extended, or increased” would have beena clear indication of the intent to restrict the electorate’s legislative power); Committee ofSeven Thousand v. Superior Court (1988) 45 Cal.3d 491, 501, 505 (Legislature’s use of “city council” and “board of supervisors” is strong indication of intentto restrict local 14 initiative and referendum power).) Therefore, to answer the question presented bythis case, the Court has to examine Section 65860 to determine if the Legislature intendedit to restrict the local electorate’s reserved legislative powers on a matter of statewide concern. Ill. THE PLANNING AND ZONING LAW PREEMPTSALL LOCAL LEGISLATIVE DISCRETION, INCLUDING THE LOCAL ELECTORATE’S RESERVED LEGISLATIVE POWER, ON A MATTER OF STATEWIDE CONCERN — CONSISTENCY OF LAND USE REGULATIONS AND DECISIONS WITH CITY’S GENERALPLAN. While in California planning and zoning havetraditionally been considered “municipalaffairs,” cities and counties derive their police power from the state and a municipality’s planning or zoning decision can and often does have substantial impact beyondits borders. (Associated Home Buildersetc., Inc. v. City ofLivermore (1976) 18 Cal.3d 582, 608.) The regional or statewide impacts of a municipality’s planning decisionsgives the Legislature the constitutional authority to limit the powerlocal electorate’s reserved legislative powers in this area if it chose to doso. (DeVita, supra, 9 Cal. 4th at 784.) In examining whether the Legislature has done so, this Court has foundthat it has — when it “mandate[ed] the developmentof a [general] plan, speciflied] the elements to be includedin the plan, and imposf{ed] on the cities and counties the general requirement that land use decisions be guided bythat plan. (/d. at 783.) This Court explained the Legislature’s legitimate state interest in requiring such long range planning in Selby Realty Co. v. City ofSan Buenaventura (1973) 10 Cal.3d 110 as follows: The deleterious consequences of haphazard community growthin this state and the need to prevent further random developmentare evident to even the most casual observer. The Legislature has attempted to alleviate the problem by authorizing the adoption of long-range plansfor orderly 15 progress. Thus, it has provided not only for the adoption of general plans but also regional plans (§ 65060 et seq.), specific plans (§ 65450 et seq.), district plans (§ 66105 et seq.), and a comprehensive plan for the conservation of San Francisco Bay (§ 66650 et seq.). In addition, the voters recently passed an initiative measure providing the mechanism for adoption of plans to preserve and protect the state's coastline. (Pub. Resources Code, § 27000 et seq.) (Selby Realty, supra, 10 Cal.3d at 120.) In 1971, in responseto the “deleterious consquences of haphazard community growth in the state, the Legislature madea series oflegislative changesthat transformed a municipality’s general plan from an “interesting study” to a “constitution for future development.” (DeVita, supra, 9 Cal. 4th at 772-773.) As this Court explained, “The general plan consists of a ‘statement of developmentpolicies ... setting forth objectives, principles, standards, and plan proposals.’ (Gov. Code, § 65302.) The plan must include seven elements--land use, circulation, conservation, housing, noise, safety and open space--and address each of these elements in whatever level of detail local conditions require (id., § 65301). General plans are also required to be ‘comprehensive[and] long[]term’ (id., § 65300) as wellas ‘internally consistent’ (/d., § 65300.5.) The planning law thus compels cities and counties to undergothe discipline of drafting a master plan to guide future local land use decisions.” (DeVita, supra, 9 Cal.4™ at 773.) Additionally, “[flor the first time, proposed subdivisions and their improvements were required to be consistent with the general plan (Gov. Code, § 66473.5 [formerly in Bus. & Prof. Code, § 11526]), as were zoning ordinances (Gov. Code, § 65860). [citation] Moreover, charter cities were no longer completely exempt from the requirements of the planning law; the State mandated that charter cities adopt general plans with the required mandatory elements. (Gov. Code, § 65700, subd.(a); [citation].)” (/d., at 772.) This Court has further explainedthat: 16 ... now “‘[t]he propriety of virtually any local decision affecting land use and development depends upon consistency with the applicable general plan andits elements.’”[citation]; see [Gov. Code] §§ 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 for Parks & Recreation v. Superior Court (2016) 2 Cal.5th 141, 153.) Asthis Court has explained on numerousoccasions, “the keystone of regional planning is consistency -- between the generalplan, its internal elements, subordinate ordinances, and all derivative land-use decisions.” (Citizens ofGoleta Valley v. Board ofSupervisors (1990) 52 Cal.3d 553, 572-573 (citing Resource Defense Fund v. County ofSanta Cruz (1982) 133 Cal.App.3d 800, 806; Orange Citizens, supra, 2 Cal.Sth at p. 153; Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, 540-541; DeVita, supra, 9 Cal. 4th at 772-773).) This consistency requirementis the “linchpin of California's land use and developmentlaws; it is the principle which infused the concept of planned growth with the force of law.” (Corona-Norco Unified SchoolDist. v. City ofCorona (1993) 17 Cal.App.4th 985, 994.) Withoutit, a general plan wouldreturn to nothing more than an“interesting study” and the State’s legitimate interest in preventing random and haphazard community growth and development through considered deliberative long term regional planning would be completely undermined. Thus, although the Legislature hasonly imposed “minimalrestrictions” on local discretion over planning and zoning decisions, those minimalrestrictions are nottrivial or mere technical trivialities to be cast aside. 17 IV. THE LEGISLATURE PREEMPTED THE LOCAL ELECTORATE’S RESERVED LEGISLATIVE POWERS TO BOTH ADOPT AND MAINTAIN A ZONING ORDINANCE THATIS INCONSISTENT WITH A CITY’S OR COUNTY’S GENERALPLAN. Therefore, clearly Section 65860, which requires consistency betweena city’s or county’s general plan andits zoning ordinances advances a statewide concern. So the next question is did the Legislature in enacting Section 65860 intend to preemptthe local electorate’s reserved legislative powers. The questionin this case involves the local electorate’s exercise of its reserved power through a referendum. Regularly acrosscities and counties are confronted with referendum petitions challenging a zoning ordinancethat would enact consistent zoning following a General Plan amendment, which rendered the existing zoning inconsistent. These petitions are almost always submitted by opponents to the property owner’s planned development for the parcel in question. In deBottari, the referendum proponents opposed medium, as opposed to low density, housing. (deBottari, supra, 171 Cal.App.3d at 1207-1208.) In the case at bar, the Hotel Coalition opposed a new hotel andthe loss of industrial land in the City. (JA, Vol. II at 480, 482.) In these situations, if the referendum proponents were successful and the electorate repealed the new consistent zoning, the parcel’s inconsistent zoning ordinance would be revived and remain in effect until some unknown future time wheneither the city or the electorate adopted new valid zoning. A. Section 65860 Preempts the Local Electorate’s Reserved Legislative Power when It Enacts Inconsistent Zoning by an Initiative. This Court has already examined this question in the context of the local electorate’s exercise ofits reserved power through aninitiative. In Lesher, this Court held that a zoning ordinance enacted by the voter’s 18 throughaninitiative, which was inconsistent with the city’s general plan wasinvalid ab initio, from the beginning: “A zoning ordinance that conflicts with a generalplan is invalid at the time it is passed.” Lesher Communications, Inc., supra, 52 Cal.3d at 544). Neither a city council nor the voters have the legislative power to enact zoning ordinances that are inconsistent with the city’s General Plan and violate the Zoning and Planning Law, Section 65860. (id. at 547.) Therefore, this Court held that the inconsistent ordinance wasinvalid and upheld the trial court’s issuance of a writ of mandate to compelits invalidation. B. Nearly Forty Years of Appellate Precedent Holds That a Referendum, Like the One Here, that Would Revive Inconsistent Zoning Is Invalid. Althoughthisis the first time this Court has addressed Section 65860’s preemptive effect on local referenda, two districts of the Court of Appeal have examinedthis issue. The Fourth District first reviewed a referendum seekingto repeal an ordinance enacting consistent zoning following amendmentofa general plan almost 40 years ago in deBottari.* deBottari established a bright line rule that has guidedcities, counties, voters and courts for decades. The electorate cannot by referendum repeal zoning for a parcel that is consistent the city’s or county’s general plan, whenifthe referendum is successful, the parcel would be left with inconsistent zoning. The Fourth District held that: In section 65860, subdivision (a), the Legislature mandated that all zoning shall be consistent with the general plan.In section 65860, subdivision (c), the Legislature added muscle to the provision by requiring that any ordinance which becomes inconsistent with a general plan must be brought into conformity. Subdivision (c) provides: "In the event thata zoning ordinance becomesinconsistent with the general plan > Nine yearslater, the Fourth District followed and reaffirmed deBottari, in City ofIrvine v. Irvine Citizens Against Overdevelopment (1994) 25 Cal.App.4™ 868. 19 by reason of amendment to such plan, or to any elementof such a plan, such zoning ordinance shall be amended within a reasonable timesothat it is consistent with the general plan as amended." To further ensure consistency in land use decisions, the Legislature provided in section 65860, subdivision (b), that "[any] resident or property owner within a city or a county, as the case may be, may bring anaction in the superior court to enforce compliance with the provisions of subdivision (a)." (See City ofLos Angeles v. State of California, supra, 138 Cal.App.3d atp. 531.) A zoning ordinanceinconsistent with the general plan at the time of its enactment is "invalid when passed." ( Sierra Club v. Board ofSupervisors (1981) 126 Cal.App.3d 698, 704 [179 Cal.Rptr. 261].) In view of the foregoing, we concludethat the invalidity of the proposed referendum has been clearly and compellingly demonstrated. Repeal of the zoning ordinance in question would result in the subject property being zoned for the low density residential use while the amendedplancalls for a higher residential density. (deBottari v. City Council, supra, 171 Cal.App.3d at pp. 1212-1213.) C. In this Case, the Sixth District’s Decision Expressly Rejected deBottari and Directly Contradicted the Fourth District Regardingthe Issues at the Heart of the Consistency Requirementin the Planning and Zoning Law and the Proper Exercise of the Electorate’s Reserved Legislative Power. The court below disagreed with deBottari and held “that a referendum petition challenging an ordinancethat attempts to makethe zoningfor a parcel consistent with the parcel's general plan land use designation is not invalid if the legislative body remains free to select another consistent zoning for the parcel should the referendum result in the rejection ofthe legislative body's first choice of consistent zoning.” (Id. at 37-38.) In rejecting the deBottariline ofcases, the Sixth District described its sister court’s reasoning as “flawed.” (Bushey, supra, 12 Cal.App.5th at 20 It criticized the Fourth District’s conclusion that a referendum would “enact a clearly invalid zoning ordinance,” because a referendum rejecting an ordinance doesnot “enact” an ordinanceatall, but instead, according to the court, simply maintainsthe status quo. Moreover, it held Section 65860 does not invalidate zoning that is rendered inconsistent by amendment of the general plan. Therefore, valid, albeit inconsistent, remains in place as the status quo until the city or the electorate enact valid consistent zoning — wheneverthat happens. In reaching this conclusion, the Sixth District interpreted Government Codesection 65860(a) as only invalidating newly enacted inconsistent zoning. It found that zoning, which wasinitially consistent, but became inconsistent by amendmentofthe General Plan, was governed by Government Codesection 65860(c). It then interpreted subsection (c) as not invalidating the newly inconsistent zoning, becauseit gave legislative body a reasonabletimeto enact consistent zoning following a general plan amendment. | Finally, the court noted that Section 65860 did not restrict City’s discretion in adopting consistent zoning, and therefore, it reasoned, Section 65860 did not preemptthe local electorate’s reserved legislative power to reject City’s choice of consistent zoning through referendum. The Sixth District then noted that this new consistent zoning would bevalid so long as it did not contain the same characteristics of the rejected consistent zoning that gaverise to the referendum petition. Therefore, it held that the referendum petition was valid and could not be removed from theballot. 2] D. Proper Interpretation of Section 65860, This Court’s Decision In Lesher and the Fundamental Requirement of Consistency and Certainty With Respect to Zoning Dictate that the Court Should Reject the Sixth District’s New Rule in this Case in Favorof the deBOTTARI Rule. Asdiscussed above, determining of whether Section 65860 preempts the right of referendum requires analysis of the statute itself for a “definite indication” that the Legislature intended to preempt the local electorate’s reserved legislative power. Courts use standard rules of statutory construction to conductthis analysis, and as demonstrated below, once undertaken, it is clear that the Fourth District’s holding and reasoning in deBottari should be upheld and adopted by this Court, while the Sixth District’s holding and reasoning in this case should be rejectedin their entirety. 1. The Sixth District’s Conclusion that Section 65860’s Preemptive Effect Does Not Invalidates a Zoning Ordinance Made Inconsistent by Amendmentof the General Plan Is Contradicted by the Plain Language of Section 65860. Thefirst supporting conclusion of the Sixth District’s decisionis that Section 65860 does not automatically invalidate an inconsistent zoning ordinance, such as the ML Light Industrial zoning at issue, that was consistent with the General Plan whenoriginally enacted, but rendered inconsistent by a later General Plan amendment. In reaching this conclusion, the Sixth District interpreted Government Code Section 65860(a) (“Subsection (a)”) as only prohibiting the enactment ofnew inconsistent zoning, such as through an initiative. Subsection (a) completely contradicts and eviscerates this interpretation. Subsection (a) invalidates a zoning ordinance the momentit becomesinconsistent with the GeneralPlan, regardless of the inconsistency derives from amendmentof the General Plan or the zoning ordinanceitself. 22 Thefirst step in interpreting a statute is to look to the plain language of the statute to determine legislative intent. Section 65860states, in pertinentpart: (a) County or city zoning ordinances shall be consistent with the general plan of the county or city by January 1, 1974. A zoning ordinance shall be consistent with a city or county general plan only if both of the following conditions are met: (1) Thecity or county hasofficially adopted such a plan. (2) The various land uses authorized by the ordinance are compatible with the objectives, policies, general land uses, and programsspecified in the plan. (b) Any resident or property owner within a city or a county, as the case may be, may bring an action or proceedingin the superior court to enforce compliance with subdivision(a).... (c) In the event that a zoning ordinance becomesinconsistent with a general plan by reason of amendmentto the plan, or to any element of the plan, the zoning ordinance shall be amended within a reasonabletimeso that it is consistent with the general plan as amended. (d) Notwithstanding Section 65803, this section shall apply in a charter city of 2,000,000 or more population to a zoning ordinance adopted prior to January 1, 1979, which zoning ordinanceshall be consistent with the general plan ofthe city by July 1, 1982. (Cal Gov Code § 65860.) The language of Subsection (a) — “County or city zoning ordinances shall be consistent with the general plan of the county orcity...” —is an absolute ban on legislative discretion. It does not distinguish between how or when the zoning ordinance becameinconsistent with the general plan. It mandates consistency and prohibits inconsistency without exception. As this Court stated in California Cannabis Coalition, such an absolute ban is a clear indication that the Legislature meant to preemptthe local electorate’s reserve legislative power along with a city’s or county’s legislative power. (California Cannabis Coalition, supra, 3 Cal. 5th at 943.) 23 Furthermore, as construed by this Court in Lesher, Section 65860 by its mere existence invalidates any zoning ordinancethatis inconsistent with the general plan: “The 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 ordinance.” (Lesher, supra, 52 Cal.3d at 544 (emphasis added.) This self-executing preemptive effect precludes the Sixth District’s conclusion that only invalidates newly enacted inconsistent zoning ordinances. Forit is well-settled that a “local [ordinance] in conflict with general law is void. Conflict exists if the [ordinance] duplicates, contradicts or enters an area fully occupied by general law.” (UT Corp. v. Solano County Board ofSupervisors (1991) 1 Cal.4" 81, 90 (citations omitted).) Here regardless of whetherthe inconsistent zoning ordinance is newly enacted or becameinconsistent due to amendmentofthe general plan, as soon as the inconsistency arises, it contradicts Subsection (a), and therefore, is invalid and void. 2. The Sixth District’s Finding that Section 65860 Authorizes the Maintenanceof Inconsistent Zoning Following Amendmentof the General Plan Is Similarly Not Supported by the Statutory Language or this Court’s Previous Interpretation of that Language. Another main supporting tenet of the Sixth District’s decision in this caseis its finding that Government Code Section 65860(c) (“Subsection (c)”) saved the former zoning ordinance from invalidity and authorized the maintenance ofinconsistent zoning. This interpretation, however, is also contrary to the plan language of Section 65860. Subsection (c) states: “In the event that a zoning ordinance becomes inconsistent with a general plan by reason of amendmentto theplan,or to any elementofthe plan, the zoning ordinanceshall be amended within a 24 reasonable timeso that it is consistent with the general plan as amended.” “Shall be amended” mandatesthat a city or county to make inconsistent zoning ordinances consistent with newly amended general plans. This is the exact opposite of permitting maintenance of such newly inconsistent zoning ordinances. Moroever, the Sixth District’s conclusion that because the Legislature allowed a “reasonable time” to bring make the newly inconsistent zoning consistent, it authorized the maintenance of inconsistent zoning — not the invalidation of such zoning — is likewise without statutory support. The plaintiff in deBottari made the same argumentas the Sixth District in this case -- “the voters should be permitted to enact an inconsistent zoning ordinance because section 65860, subdivision (c), provides for a "reasonable time" within which an inconsistent zoning ordinance may be brought into conformity with an amended generalplan. Thus, plaintiff points out, even if the referendum were approved the council would have a "reasonable time" within whichto rectify the inconsistency.” (deBottari, 171 Cal.App.3d at 1212.) The Fourth District soundly rejected this reasoning: Plaintiff readily concedes some remedial action by the council would then be required. Plaintiff suggests that the council would have three options: (1) reenact the zoning amendmentthat the voters had overturned; (2) enact some alternative zoning scheme whichis consistent with the general plan; and (3) amend the amended general plan to conform to the zoning ordinance preferred by the voters. Unfortunately, all of the options offered by plaintiff beg the question of whether the voters, ab initio, have the rightto enact an invalid zoning ordinance. Clearly, section 65860, subdivision (c), was enacted to provide the legislative body with a "reasonable time"to bring zoning into conformity with an amended generalplan. It would clearly distort the purpose of that provision were weto construe it as affirmatively sanctioning the enactmentof an inconsistent zoning ordinance. 25 This Court in Lesher also addressed the issue of whether subsection (c)’s allowanceof a reasonable time adopt consistent zoning precluded a finding that an inconsistent zoning ordinance wasinvalid. (Lesher, supra, 52 Cal.3d at 545-546.) This Court rejected the Sixth District’s argument, and reached the same conclusion as the deBottari court: “The obvious purposeof subdivision (c) is to ensure an orderly processofbringing the regulatory law into conformity with a new or amended generalplan,not to permit developmentthat is inconsistent with the plan.” (/d.) Moreover,this Court held that Section 65860 compels a local governmentto bring a zoning ordinance “that was originally consistent but has become inconsistent” into conformity with its general plan whenit has become inconsistent due to a general plan amendment. (/d., 541 (emphasis added).) Although the Court in support ofthis conclusion relied on Section 65860 as a whole and did not specifically cite to subsection (c), it is clear from the underlined language above that the Court wasreferring to the mandate of subsection (c) in its interpretation of Section 65860. Consequently,this Court’s precedentalso precludes the Sixth District’s finding that subsection (c) or any other provision of Section 65860 authorizes the maintenance of inconsistent zoning. The legislative history of subsection (c) supports the conclusion of this Court in Lesher and the Fourth District in deBottari and further exposes the error in the Sixth District’s contrary conclusion. The Legislature first enacted the zoning consistency requirement in 1971 as part ofthe effort described aboveto give a general plan the force of law. (1971 Stats., Chapter 1446, sec. 12, attached as Exhibit A to Petitioner City of Morgan Hill’s Request for Judicial Notice filed in support herewith (“RJN”).) Section 65860 as originally enacted gave local bodies until January 1, 1973 to adopt a gencral plan and amendits zoning ordinances to conform tothat 26 plan. (Id.) Subsection (c) was not part of Section 65860as originally enacted. Then in June 1973, by Senate Bill 594, the Legislature amended the Planning and Zoning Lawin orderto give local governments additional time to adopt compliant general plans and meet the zoning consistency requirements. (Governor’s File regarding Senate Bill No. 594 (enacted June 29, 1973 as an urgency measure) at pp. 1-2, attached as Exhibit B to the RIN.) The deadline to adopt compliant general plans was extended from June 30, 1973 to December 31, 1973 and the deadline to make zoning ordinancesconsistent with those compliant general plans in Section 65860, subsection (a) was extended to January 1, 1974. (Id.) Senate Bill 594 also added subdivision (c), providing that zoning inconsistencies with general plan amendments hadto be cured within a “reasonable time.” (SB 594, as amended June 27, 1973, attached as Exhibit C to the RJN.) Subdivision (c) was taken from a competing measure, Assembly Bill No. 1864, andoriginally provided that an amendmenthad to take place within 90 days. (Assembly Daily Journal, 1973-74 Regular Session, p. 3856, attached as Exhibit D to the RJN.) Another provision of AB 1864 adopted into SB 594 provided that when general plans were amended, the public hearing on zoning amendmentshad to take placeat least two weekslater. (Id.) The Legislature enacted Senate Bill No. 594 in response to concerns voiced by the League of California Cities regarding cities’ great difficulties in meeting the prior deadline for completing general plan elements and amending zoning ordinancesin light of the new EIR requirement imposed by CEQA. (RIN, Ex. B; California Office of Intergovernmental Management, Council on Intergovernmental Relations, Statement On ~ Deadlines For Open Space and Conservation Elements, SB 594 (May 8, 1973), attached as Exhibit E to the RIN.) Therefore, presumably in light of 27 local government concern about unworkable deadlines, and in recognition of the fact that the timing of zoning hearings would differ on a case-by-case basis, subsection (c) was added to Section 65860, but the original 90 day deadline becamethe “reasonable time” requirement. Fromthis legislative history it is clear that Subsection (c) was enacted to address issue related to the procedural timing of bringing zoning ordinances into conformity with newly amended general plans. The Legislature in no way intended for Subsection (c) to validate or rescue inconsistent zoning from Subsection (a)’s preemptive and absolute ban. Moreover, the Legislature only extended the deadline to makeall zoning ordinances consistent with the general plan by six months. That deadline applied regardless of whether a local governmenthadto enact entirely new zoning ordinancesoronly had to amendpreviously adopted ones to make them consistent with a newly adopted or amended general plan. Therefore, Subsection (c) was not a saving clauseor safe harbor from the specific January 1, 1974 deadline. Asheld in both Lesher and deBottari, by enacting Subsection(c) the Legislature merely established an orderly timing process for bringing regulatory law into conformity with a new or amendedgeneralplan. Neither the language of Section 65860 northe legislative history supports the Sixth District’s conclusion that the Legislature intended Subsection (c) to save inconsistent zoning from Subsection (a)’s invalidating proscription and allow the maintenanceof such inconsistent zoning. Subdivision (c) may give local governments a temporary defense from suit, but it does not transform an invalid ordinanceinto a valid one, and it does not permit the electorate to revive a superseded inconsistent zoning ordinance. 3. The Sixth District’s Objection to deBottari’s Use of the Word “Enacted” Is Not Groundsfor Rejecting Its Holding Because Whenthe Electorate Rejects an Ordinance by Referendum, They Repeal a Properly Enacted Ordinance and Revive, or “Re-enact,” the Ordinance it Superseded. 28 Oneofthe main reasonsthe Sixth District rejects deBottariis the Fourth District’s use of the word “enact” when describing a referendum’s effect on the previous inconsistent zoning: The Fourth District's reasoning in deBottari is flawed. As we have already explained, unlike 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 enactment of an inconsistent zoning ordinance. As discussed above, Section 65860 clearly prohibits maintenance of inconsistent zoning. Regardless, however, the Sixth District’s objection to use of the word “enact” in reference to a referendum elevates form over function, is contradicted by the technical legal mechanism by which a referendum operates andis therefore a distinction without substantive merit. According to the Sixth District, a referendum may proceed under these circumstances becausetheelectorate’s vote to reject a the new zoning ordinanceis a do-nothing power to maintain the status quo. This view, however, mistakes the procedural effect of a stay, which keeps a superseded law in effect pending a vote, for the electorate’s true constitutional poweris to acceptorreject a law thatthe local legislative body has already fully enacted. Asthis Court has explained, an ordinanceis already a “perfect law” whenit is adopted, not whenit becomeseffective. (County ofLos Angeles v. Lamb (1882) 61 Cal. 196, 198 [“The statute ... was a perfect law when it was approved ... clothed with all the force and strength that the legislative powercould investit with.”].) Moreover, “the constitutional referendum is not part of the enactmentprocess in the Legislature, but operatesafter that process has doneits work andhas produced ‘a statute enactedby a bill passed by the Legislature.’ [Cal. Const., art II, § 9, subd. (b)].” (Santa 29 Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4 220, 241.) “For the same reason sucha statute requires no approval by the voters to becomelaw:it will automatically take effect unless a timely referendum petition is filed.” (/bid.) Accordingly, when the voters reject an ordinance by referendum, they are engaged in an exercise of their constitutionally reserved legislative powerto invalidate, or repeal, an existing ordinance andrestore full legal effect to the ordinancethat the legislative body had superseded by enactmentofthe challenged ordinance. If this appears to be “maintaining the status quo,” that is only because the stay on the challenged ordinance masksthe fact it has already replaced the prior ordinance. Rejection by referendum affirmatively repeals existing law;it is not a failed attempt to enact one. This Court has acknowledged the commonimprecision in terms whendiscussing referenda. For example, in rejecting the argumentthat a voter approval requirementfit the constitutional definition of “referendum,” this Court was unmovedbythepetitioner’s reliance on two U.S. Supreme Court decisions and two ofits own opinions in which the respective courts used the word “referendum”to describe analogous voter approval requirements. (Guardino, supra, 11 Cal. 4" at p. 243.) Dubbingit a “label of convenience,” the Court explained that the term served merely as a “shorthand”to signify the broader meaning it has in “common speech,”as “any kind ofpopular vote or plebiscite on a public question or measure.” (Ibid.) Simply calling these voter approval mechanisms “referendums”did not make them so in a constitutional sense, particularly since that question wasneither considered nor decided in those opinions. (/bid., citing People v. Banks (1993) 6 Cal.4" 926, 945.) Similarly, in the parlance of the referendum power, “reject” takes on a technical meaning akin to repeal. This can be confusing, because with the 30 stay in place, it does not look like an active repeal. Perhaps unsurprisingly, there is often imprecision in the case law, and the tendency to use the technical terms in a non-technical way does not help. When deBottari used the word “enact,” it was wrong as a technical matter, but not in the non- technical sense of approving,ratifying, authorizing or taking an action to make a law — in this instance,it is just the prior law that the electorate was “enacting” by revivingit. It cannot honestly be argued that the deBottari court, the City of Irvine court nine yearslater, or this Court in Lesher, Citizens ofGoleta Valley, DeVita and Orange Citizens, whenit relied on deBottari, all used the word “enact,” because they thought that by a referendum the electorate “enacted” an ordinancejust like it would byits initiative power. Courts are presumed to know the law. (Swain v. Swain (1967) 250 Cal.App.2d 1, 7.) The law governing referendums, including the stay of the effect of the challenged ordinance has been the samesince before de Bottari was decided through to the present day.’ Therefore, obviously the Fourth District and this Court understood the technical legal points discussed above regarding the repeal of the previous ordinance by enactmentof the challenged ordinancealone, the effect of the stay to maintain the effectiveness of the previous ordinance, despite the fact it was technically superseded by the enactment ofthe challenged ordinance. And furthermore, the courts knew that if by the referendum,the electorate rejected andtherefore, repealed the challenged ordinance,it also legally revived the superseded ordinance that nonetheless had been in effect during the stay. It is no wondernoneofthe courts explained this esoteric technical point of law. It is confusing and does not change the end result. The law is 4 See, Assembly ofState ofCal. v. Deukmejian (1982) 30 Cal.3d 638, 656, where the Court explains the suspending effect of the filing of a petition for Referendum. This case was decided before deBottari and therefore, clearly the newly adopted ordinance in deBottari was similarly suspended. 31 meant to be accessible to everyone. “Enact” as used in deBottari and adopted by this Court in reference to deBottari’s holding conveysthe technical legal complexities with one word that everyone understands. By exercising their legislative power to reject the challenged ordinance by a referendum,the electorate is also using that powerto return the state of law to the superseded ordinance. While they are technically reviving orre- enacting the previous superseded ordinance,they are also “approving”or “ratifying”it in a non-technical sense. Legislative power cannotbe used to enact, revive, re-enact, approve, or maintain illegal ends - so whetherthe initiative power is used to “enact” as opposedto “maintain” a new zoning designation, the end result is the same — invalid legislation. 4. The Sixth District’s Determination that the Availability of Other Consistent Zoning Choices Proved that Legislature Did Not Intend to Section 65860 to Preempt the Local Electorate’s Right to Referendum Is Misconstruesthe Legislative Discretion Being Exercised and the Legislature’s Restriction on that Discretion. Oneofthe other main reason supporting the Sixth District’s decision and its rejection of deBottariis its conclusion that because Section 65860 did not restrict the City’s choice of consistent zoning designations, it does not preempt the electorate’s ability to reject the City’s choice of consistent zoning districts. While at first blush this proposition seemslogical,its faults are exposed upon further examination. The Sixth District’s focus on Section 65860’s effect on the City’s discretion to picka consistent zoning is misplaced, because that discretion is not analogousto thelegislative discretion being exercised by the electorate in the Referendum. The Referendum doesnotask the electorate to choose amongst various consistent zoning districts. Moreover,it does not reject the City’s choice of consistent zoningin favor of oneofthe other consistent commercial districts. If it did, it would be an initiative, not a 32 referendum.It is already well-settled that the local electorate can exercise their reserved legislative power throughaninitiative to enact another consistent zoning district instead of the one chosen bya local governing body. (Associated Home Builders etc., Inc. v. City ofLivermore (1976) 18 Cal.3d 582, 596; Lesher, 52 Cal. 3d at 541.) Rather as discussed above, by the Referendum,the electorateis repealing the previously enacted consistent zoning and reviving — Le. legally re-enacting — invalid inconsistent zoning. Therefore, the proper question is whether Section 65860 preempts the legislative powerto affirmatively revive and re-enactinconsistent zoning. The answeris clearly, “Yes.” Subsection(a) is an outright ban on zoningthatis inconsistent with the general plan. It does not distinguish between how or whenthe inconsistency arises, how long it has existed or what meansare available to correct the inconsistency. A zoning ordinance that conflicts with the State Planning and Zoning Law is void, (IT Corp., supra, 1 Cal.4"at 90), and a void ordinance cannotbe given effect (Lesher, supra, 52 Cal. 3d at 544). Therefore, the Legislature has preempted both the City’s and the electorate’s discretion to enact, revive or maintain zoning that is inconsistent with the General Plan. It is invalid and has noeffect. “This self-evident proposition is necessary if a governmentalentity andits citizens are to know how to govern their affairs. ... The validity of the 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.” (/d.) Theavailability of other consistent zoning options has nothing to do with the antecedent question ofwhether the referendum can proceed. The legal bar to the referendumlies solely in the constitutional inability of the local electorate to revive an ordinance that no longer complies with state 33 law. That bar is no lower and no higher whetherthe city council can enact other consistent zoning ordinancesornot. 5. The Sixth District’s Decision Contradicts and Undermines the Key Public Policies of Certainty and Consistency that Are Fundamentalto California Planning and Zoning Law. Lastly, even if the existence of other choices could somehow empowerthe local electorate to revive an ordinance that was void dueto its conflict with preemptive state law—-or perhaps tempt a court to overlook the problem,as the Sixth District seems to have done—pinning the propriety of a referendum to the availability of other zoning choices would be an undesirable rule. Asdiscussed above,it is through the required adoption of a general plan, its mandatory elements, and the consistency requirementforall land use decisions from specific plans through to zoning ordinancesthat the Legislature has chosen to advanceis legitimate statewide concern of orderly long range regional planning and the prevention of random, haphazard community growth and development. Moreover, the consistency requirements in the Planning and Zoning Law are whatgive the general plan the force of law. Without the consistency requirements, general plans would return to their status as merely interesting studies. Therefore, a city or county cannot approveanyusefor a parcel that is inconsistent with the parcel’s zoning, and that zoning mustbe consistent with any applicable Specific Plan or other land use approval, whichall must be consistent with General Plan. In order to meet this consistency requirement, however,cities, counties, courts and property owners must know what development must be consistent with; the policies of the General Plan and the requirements of the ordinances implementing those policies must be clear and certain. A general plan andits specific plans have been described as a “yardstick”; one shouldbe able to “take an individual parcel 34 and checkit against the plan and then know which uses would be permissible.” “[P]ersons who seek to develop their land are entitled to know whatthe applicable law is at the time they apply for a building permit. City officials must be able to act pursuantto the law, and courts mustbe able to ascertain a law's validity and to enforce it.” (Orange Citizens for Parks & Recreation v. Superior Court (2016) 2 Cal.5th 141, 159-160.) The sameis true with respect to zoning. A property owner should be able to determine the permitted uses of its property by simply referring to the Municipal Code provisions for the property’s zoning district, without having to conduct a legal analysis as to whether that zoning is consistent with the General Plan. The Legislature has reinforced this fundamental policy of certainty in a variety of different enactments in the Planning and Zoning Law. For example, statutes of limitations to challenge land use and zoning decisions are measured in days, as opposedto years,to facilitate quick resolution of land use and zoning disputes and “provide certainty for property owners and local governments regarding decisions made pursuantto [the Planning and Zoning Law].” (Gov. Code §65009; see also Gov. Code §66022). See also, e.g., Gov. Code §65864 (developer agreements provide certainty to inter alia prevent waste of resources and escalation of housing and development costs to consumer”); Gov. Code §66030 (establishing a mediation process for certain planning and zoning disputes, because ‘“Jawsuits can delay development, add uncertainty and costto the development process, make housing more expensive, and damage California’s competitiveness”).) Certainty with respect to zoning decisions is also necessary because of the uniformity requirementinherent in zoning jurisprudence. A zoning scheme, afterall, is similar in some respects to a contract; each party foregoes rights to use its land as it wishes in return for the assurance that the use of neighboring property will be similarly restricted, the rationale beingthat such mutualrestriction can enhance total community welfare. 35 [Citations.] If the interest of these parties in preventing unjustified variance awards for neighboring landis not sufficiently protected, the consequencewill be subversion of the critical reciprocity upon which zoning regulationrests. (Topanga Assn. for a Scenic Community v. County ofLos Angeles (1974) 11 Cal.3d 506, 517-518.) If a zoning schemeislike a contract, the uniformity requirementis like an enforcementclause, allowing partiesto the contract to challenge burdens unfairly imposed on them or benefits unfairly conferred on others. ... By creating an ad hoc exception to benefit one parcel in this case—an exception that was not a rezoning or other amendmentofthe ordinance, not a conditional use permit in conformance with the ordinance, and not a proper variance—the county allowedthis “contract” to be broken... . [T]he county simply let one parcel and owneroff the hook.In light of the key role played by the requirement of uniformity in a zoning scheme, the parcel's neighbors hada right to expect that this would not happen. (Neighbors in Support ofAppropriate Land Use v. County ofTuolumne (2007) 157 Cal.App.4th 997, 1009.) Withoutcertainty, the policy of uniformity will be undermined. Withoutclear dictates and regulations to apply, local governments and courts will be unable to make uniform decisions, and as such, will inevitable breach the “contract” necessary for proper administration of a zoning scheme. Rather than promoting certainty and uniformity, the Sixth District’s new rule completely undermines these important policies. The Sixth District created a situational rule, ill-suited to practicalities of real world application that will likely to spawn frequentlitigation against local governments. For example, the Sixth District’s interpretation of Government Codesection 65860 as not invalidating inconsistent zoning created by General Plan amendmentandas authorizing the maintenance of 36 such inconsistent zoning for “a reasonable time” creates many more questions than it answers. Oneofthe main pressing questionsis-- if the newly inconsistent zoningis not invalid, does that meanit is still effective so as to govern development decisions regarding the parcel despite its inconsistency with the General Plan? Canthe city or county approve a developmentplan or building permit for a use that is consistent with the General Plan but non- conformingto the inconsistent zoning? Mustthe city or county issue a building permit that authorizes construction of buildings the use of which could be inconsistent with the General Plan but is authorized by the inconsistent, but valid, zoning? While one can argue based on this Court’s precedentsthat land use decisions must be consistent with the General Plan, suchthat the use in the General Plan will prevail over inconsistent zoning (see, e.g. Orange Citizens, supra, 2 Cal.5™ 141), no clear precedent exists regarding issuance of a building permit whennoland use approval is required. Issuance ofa building permit is a ministerial act so long as the plans meet the requirementsofthe Building Code and the Zoning Code, and a city cannot refuse to issue a permit in that situation. But if the intended use of the buildings is approved by the inconsistent, “but valid,” zoning, does the city have to issue the building permit when doing so wouldclearly violate and undermineits general plan? If the property ownerrelies on the permit and begins construction,is the inconsistent “but valid” use vested such the city can be estopped from claimingthat the use violated the zoning code? Or would the rule ofPettitt v. City ofFresno (1973) 34 Cal.App.3d 813 apply to allow thecity to revokethe building permit andforce compliance with the use required by the general plan, because the zoning wasinvalid at the time the permit was issued? Obviously differentcities or counties, and even different staff members within a city or county could and would reach different conclusions regarding various property’s and 37 approvals. Consequently, instead of decreasing litigation, the Sixth District’s rule would greatly increase it leaving the courts to decide these questions — also without any certain guidance. Another uncertainty created by the Sixth District’s decision is how long is a “reasonable time”to leave a parcel with inconsistent, and arguably ineffective, zoning? A month? A few months? A year? Two years? Even though “reasonableness”is usually an objective standard, in the context of developmentand property rights, shouldn’t be a subjective standard? Andif so, how cancity or county officials proper administer developmentin a uniform and consistent manneracrossall similarly situated property owners in their jurisdiction? And who decides whatis a reasonable time? The city? The property owner? The courts? Andif a property is left without any effective zoning for an “unreasonable” amountoftime, and a property owneris deprived all economic use of the property — has a regulatory taking occurred by action of the referendum andnofault ofthe local governing body? Assuch, the Sixth District’s interpretation of Government Code section 65860 creates many more questionsthan it answers, and places cities, counties, property owners andcourts in the impossible position of not knowing whether inconsistent zoning created by General Plan amendmentis valid and effective for guiding development, zoning and building decisions. On the other hand, the deBottari rule is a brightlinerule that cities, counties, property owners, voters and the courts can apply quickly, uniformly and with much morecertainty. Oncethe inconsistency arises, regardless of how or when, the zoning ordinanceis invalid and void. A void ordinance cannot govern any land use, zoning or building permit decision. Courts and local governmentswill have clear guidelines about how to respondto a referendum challenging the adoption of consistent zoning. More importantly, the electorate is on notice that if they challenge the city’s 38 adoption of new consistent zoning by referendum,the referendum isinvalid and will be removed from the ballot. Therefore, the electorate will also be on notice that the proper way to change a local government’s selection of consistent zoningis by initiative. Given the need for uniformity, consistency and certainty in administration of planning and zoning lawsat both the State andlocal levels, this Court should reject the appellate court’s holding and affirm the black line rule established by deBottari, followed by this Court, and applied by the Superior Court to invalidate the Hotel Coalition’s Referendum and certify Ordinance 2131 as effective immediately. V. REMOVING THIS REFERENDUM FROM THE BALLOT WILL NOT DEPRIVE THE PEOPLE OF THEIR RESERVED LEGISLATIVE POWER OVER ZONING. Before the Sixth District, the Hotel Coalition argued that the holding in deBottari improperly infringed on the electorate’s right of referendum, because it would eliminate the electorate’s ability to reject a city’s choice of consistent zoning after amendmentof the general plan. In essence, the Hotel Coalition argues that invalidating the Referendum in this case would eliminate the electorate’s ability to reject the City’s choice of consistent zoning in favor of another consistent zoning. The Hotel Coalition’s argumentis both legally and factually incorrect. First, as a matter of law, the electorate’s reserved legislative power, whetherexercised throughinitiative or referendum,is subject to constitutional and statutory limitation. (Lesher, supra, 52 Cal. 3d at 543, n.10 (citing Legislature v. Deukmejian (1983) 34 Cal.3d 658, 674).) Based on this well settled principle, this Court held that “[e]nforcing compliance with those overriding limitations on the exercise of the power in no way deniesthe right of [the reserved legislative powers].” (/d.) Therefore, enforcing Scction 65860’s prohibition against inconsistent zoning in no way deniesthe local electorate its right of referendum orinitiative. 39 Even more importantly, however, the Hotel Coalition’s contention is just factually wrong. Evenif it cannot reject the City’s choice of consistent zoning through a referendum,the loca] electorate can still exercise its reservedlegislative powerto reject the City’s choice of consistent zoning and force the adoption of its choice of consistent zoning. First, it could have submitted a referendum to the amendmentofthe general plan. Failing to do this, however, does not foreclose the electorate’s ability to bring about its two stated purposes behind the Referendum. To change the Property’s use backto industrial, the electorate could amend the Property’s general plan land use designation byan initiative. And with respect to compelling adoption of a consistent commercial zoning that does not allow hotels,it could use an initiative to amend the Property’s zoningto its choice of consistent zoning. Courts generally presume voters are aware of existing law. (California Cannabis Coalition, supra, 3 Cal. 5" at 934.) Therefore,it is not onerous or unduly burdensometo require that they choose the proper vehicle to exercise their reserved legislative powerto legally effect their desired result without violating the Legislature’s preemptive restrictions on their legislative power. To hold otherwise would needlessly and drastically undermine the State’s ability to enforce the consistency requirements and property owner’s right to valid, certain and clear legal guidelines regarding the development and use ofits property. Judicial deference to the electoral process does not compel judicial apathy towardspatently invalid legislative acts. Nor are we persuadedthat a zoning ordinance inconsistent with the general plan constitutes little more than a mere technical infirmity. On the contrary, the requirement of consistencyis the linchpin of California's land use and developmentlaws;it is the principle which infused the concept of planned growth with the force of law. Weare not persuadedthat this 40 principle must nowbesacrificed on the altar of an invalid referendum. (deBottari, supra, 171 Cal.App.3d at 1213.) IV. IF THE COURT DECIDES TO UPHOLD THE SIXTH DISTRICT’S DECISION IN GENERAL, THE RESULT IN THIS CASE SHOULD BE OVERTURNED AS THE SIXTH DISTRICT FAILED TO UPHOLD THE TRIAL COURT’S FACTUALFINDINGS IN A MANNER THAT INVALIDATES THE REFERENDUMIN THIS CASE, EVEN UNDERTHESIXTH DISTRICT’S NEW GENERAL RULE. The Sixth District’s holding is based almost entirely on the premise that if the voters reject the City Council’s choice of consistent zoning by passing the Referendum,the City Council would still be able to exerciseits legislative discretion to choose from “any number”of other zoning designations that would be both consistent with the General Plan and valid underthe stay provisions of Elections Code section 9241. The Sixth District expressly recognizes just how critical the existence of remaininglegislative discretionis to its holding: “We express no opinion onthe validity of a referendum challenging an ordinance that chooses the only available zoning that is consistent with the general plan.” (Bushey, supra, 12 Cal. App.Sth at 42,n.5.) By this admission, the Court concedesthat the eliminationofthis discretion would present a completely different factual scenario to whichits reasoning could not apply. However, the Court bases its conclusion that the necessary legislative discretion exists in this matter on two material misstatements of fact. The first is that the stated purpose of the Referendum wasonly to prevent the developmentof a hotel on the Subject Property. (/d. at 38.) This finding, however, overturns the Superior Court’s factual finding that by the Referendum the Hotel Coalition was seeking to have the Property zoned in a mannerinconsistent with the General Plan,i.e. industrial. (JA at 485:11- 13.) Before the Sixth District, the Hotel Coalition stated that the facts were 4] undisputed and only de novo review applied. The Hotel Coalition did not directly challenge the trial court’s factual finding; and therefore, the Sixth District erred in substituting its own factual determination forthetrial court’s finding. (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711- 713 (appellate court erred in failing to give deferenceto trial court’s findings offact).) Moreover, if the Sixth District applied the substantial evidencerule, it violated that rule by ignoring clear undisputed and undisputable evidence in the record establishing that the stated purpose of the Referendum was also to preserve the Subject Property’s industrial zoning (JA at 480, 482.) in favor of the unsupportedassertions of the Hotel Coalitionin its briefing. Oncethis critical fact is added to the Sixth District’s reasoning,it eliminates the City’s ability to adopt any commercial zoning designation, because any zoning designation other than an industrial zoning designation would beessentially the same as the challenged Ordinance and would evadethe intended effect of the Referendum in violation of Elections Code section 9241. Thus, the Referendum if successful would legislatively approvefor at least one year inconsistent and invalid zoning in violation of Section 65860. Under Lesher, and this Court’s precedents regarding the scope ofthe local electorate’s reserved legislative powers, the Hotel Coalition cannot use its referendum rights to violate State law in this manner. The second material misstatementof fact is that “any number” of consistent zoning designations exist in the Morgan Hill Municipal Code (“MHMC”) from which the City Council could choose. (Bushey, supra, 12 Cal.App.5th at 41.) This finding appears to be based on the Hotel Coalition’s (again unsupported) assertion that if the Referendum passed, the City could choose from manyofthe other 11 commercial zoning designations that do not allow hotels. (See, e.g. Appellant’s Opening Brief, 42 p. 29-30.) While the relevant Municipal Codesections are in the record (JA at 407-431), the Hotel Coalition did not cite to them or present any analysis or legal argument regarding which of the commercial zoning districts are essentially different from the Referendum;andofthose essentially different districts, which are appropriate for the Subject Property. Moreover, the Hotel Coalition did not present this analysis to the Superior Court below. To be candid, neither did the City because of the clear undisputable stated purpose of the Referendum to preserve the Subject Property’s industrial zoning, and the Hotel Coalition’s failure to present any analysis ofthe City’s Zoning Code. The Hotel Coalition, as appellant below, did not meet its burden of proof on this fact, and therefore, the Court should not adopt such critical factual finding. This alone is grounds for overturning the Sixth District’s decision, for without a variety of other consistent zoning ordinances to choose from, the appellate court’s reasoning as applied to the facts at bar falls apart. The fact that this critical issue was not evaluated in light of a complete factual record dictates that the Court should not uphold the Sixth District’s ruling as applied to this case. Moreover, even a cursory facial analysis of the City’s commercial zoning districts demonstrates the fallacy of the Sixth District’s assertion that “any number”of other consistent zoning districts existed for the Property. Rather, at most, the City’s alternative “choice” would be limited to one zoning district, and it is questionable based ontheplain text of that zoning regulation whether the Subject Property would qualify for that zoning, so as to be an “available” consistent zoning designation. This conclusion is based on a plain reading of the Municipal Code sections in the record. The sections of the Municipal Code the Hotel Coalition submitted to the Superior Court as the City’s commercial zoning districts are located at Joint Appendix at pages 407- 431. Of these 12 > The City’s General Plan land use designations have a straight forward namingrelationship with their conforming zoning 43 purported commercial zoningdistricts, six (6) allow hotel uses: CG General Commercial, MHMCsection 18.22.030(F), “Motels, hotels and other similar lodging facilities” (id. at 410); CL-R Light Commercial Residential, MHMCsection 18.25.030(H), “Lodging Facilities” (id. at 415); HC Highway Commercial, MHMCsection 18.26.020 (id. at 417); SRL-B Sports Recreation and Leisure District B, MHMCsection 18.27.040(C) “Motels, hotels and other similar lodging facilities” (id. at 419); TUD Theme Unit Development, MHMCsections 18.28.020(A), 18.28.030(E) “Motels” and “any other use which the planning commission finds will be similar in nature to” motels (id. at 421); and CS Service Commercial District, MHMCsection 18.32.030(K), “all C-G general commercial district uses,” such as motels, hotels and other similar lodging facilities (id. at 428). Therefore, these six districts are clearly not available as they conflict with one of the stated purposes of the Referendum. Another two (2) — GF Downtown Ground Floor Overlay District and CC-R Central Commercial/Residential District - by their express terms only apply to parcels in downtown Morgan Hill. MHMCsections 18.23.010, 18.24.010. (/d. at 411-412). The Subject Property is located within half a mile of the Highway 101/Cochrane Road interchange. (JA, Vol. I at 60.) A quick review of any map shows that the Subject Property is not in downtown Morgan Hill. Therefore, these two districts are not “available consistent zoning districts.” designations. (JA, Vol. I, 61.) Zoning designationsidentified as ~ commercial designations apply to sites with a commercial General Plan designation. (Jbid.) Someofthe zoning designations the Hotel Coalition claims as commercial districts do not conform to this City rule. See, e.g. MHMCSection 18.27 SRL Sports Recreation and Leisure District (JA, Vol. I, 418) and MHMCSection 18.28 TUD Theme Unit DevelopmentDistrict (id. at 421). Therefore, it is unclear that they are actually available “commercial” zoning districts. In this Petition, the City assumesthey are actually available because there ts no evidenceto the contrary in the record. 44 Similarly, two (2) other districts, CN Neighborhood Commercial and SRL-A Sports Recreation and Leisure District A are restricted to parcels located next to certain specified land uses — those adjacent to or surrounded by residential districts in the case of Neighborhood Commercial, and those supporting low intensity sports, recreation and leisure uses adjacentto or nearby agricultural or open space districts. (MHMCsections 18.20.010, 18.27.010(A); JA, Vol. II at 407, 419.) The Subject Property is not adjacent to or surroundedby anyofthese land use designations.It is surrounded by Commercial and Industrial uses. (JA, Vol. I at 60.) Therefore, based on the express text of the zoning regulations, the Subject Property cannot be zoned either Neighborhood Commercial or Sports Recreation and Leisure A. That meansthere are only two (2) remaining possible “available consistent zoningdistricts.” Ofthose two remaining “districts”, one (1) — PD Planned Development Overlay District - is not a separate district at all, but an overlay that applied in addition to any type of base zoning district. (MHMC section 18.30.010; JA, Vol. II at 424.) Therefore, it clearly is not a separate available consistent zoning district. Finally, the last remaining possible available zoning district is CO Administrative Office District. While this district does not specifically appearto allow hotels, it also is not entirely clear that the Subject Property is within the scope of parcels that can be zoned Administrative Office. MHMCsection 18.34.010 states that the purpose of this zoning district is “to provide an area where professional, general commercial offices and limited personal services may develop in close relationship with each other outside of other commercialdistricts.” (JA, Vol. II at 429.) A reasonable interpretation of “outside other commercial districts” would be that any parcel zoned Office Administrative cannot be near or adjacentto other 45 commercial districts, but rather must be separate from those more general commercial zones. As such, it is questionable whether this is an “available” consistent district. However, assuming for the sake of argumentthat it is, one available alternative zoning district is a FAR, FAR cry from “any number”of available zoning districts. When the choice of available alternative districts is limited to one, the City Councilis not left with any discretion. A choice of one consistent zoning is not a choice. Therefore, correction of the Sixth District’s material misstatements of fact eviscerates the supposed remaining legislative discretion thatis the key necessary factor supporting the appellate court’s holding. Elimination of the City Council’s discretion by the Referendum destroys the applicability of the Sixth District’s new generalrule to this case, places this case in the category of cases that the Sixth District expressly stated it was not deciding and dictates reversal of the appellate court’s decision in this case. CONCLUSION For the foregoing reasons, the Court should reaffirm the rule of deBottari_and reverse the judgment of the court of appeal. Dated: October 16, 2017 LEONE & ALBERTS KATHERINE A. ALBERTS Attorneys for Plaintiff and Respondent CITY OF MORGANHILL 46 RULE 8.204(c) CERTIFICATION Pursuant to rule 8.204(c) of the California Rules of Court, I hereby certify that the foregoing Opening Brief is proportionately spaced in Times New Roman 13-point type and contains12,003 words as counted by Microsoft word-processing software. Dated: October 16, 2017 tA.dp; KatKerine A. Alberts, Esq. Attorneys for Plaintiff and Respondent CITY OF MORGANHILL 47 STATEMENT OF RELATED CASES Respondentis not aware of any related cases pending before the Supreme Court. Dated: October 16, 2017 atherine A. Alberts, Esq. Attorneys for Respondent CITY OF MORGANHILL 48 Re: City of Morgan Hill v. Shannon Bushey,etal. California Supreme Court Case No.:S243042 Court of Appeal Case No.: H043426 PROOF OF SERVICE I, the undersigned, declare that I am employed in the City of Walnut Creek, State of California. I am over the age of 18 years and not a party to the within cause; my business address is 2175 N. California Blvd., Suite 900, Walnut Creek, California. On October 16, 2017, I served the following documents: OPENING BRIEF OF PLAINTIFF AND RESPONDENT CITY OF MORGAN HILL COUNSEL FOR MORGANHILL HOTEL COALITION Asit S. Panwala Law Office of Asit Panwala 4 Embarcadero Center, Suite 1400 San Francisco, CA 94111 COUNSEL FOR DEFENDANT IRMA TORREZ Gary Baum,Esq. Scott Pinsky, Esq. Law Offices of Gary M. Baum 19925 Stevens Creek Blvd., Suite 100 Cupertino, CA 95014 Donald Larkin, Esq., City Attorney City of Morgan Hill 17575 Peak Avenue Morgan Hill, CA 95037-4128 VIA MAIL COUNSEL FOR REAL PARTYIN INTEREST RIVER PARK HOSPITALITY Jolie Houston, Esq. Berliner Cohen LLP 10 Almaden Blvd., Eleventh Floor San Jose, CA 95113 COUNSEL FOR RESPONDENT/ DEFENDANT SHANNON BUSHEY Danielle L. Goldstein, Esq. 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