MORGAN HILL, CITY OF v. BUSHEY

Respondent, City of Morgan Hill, Petition for Review

Cal.July 11, 2017

S$24304e IN THE SUPREME COURTOF THE STATE OF CALIFORNIA ETLED. CITY OF MORGANHILL, JUL TT 2097 Plaintiff and Respondent Case No. Jorge Navarrete Clerk vy. Sixth Dist. No. H043426 Deputy SHANNON BUSHEY, AS REGISTRAR Santa Clara Super. Ct. No. 16- OF VOTERS,etc., et al., CV-292595 Defendants and Respondents; RIVER PARK HOSPITALITY, Real Party in Interest and Respondent; MORGANHILL HOTEL COALITION, RealParty in Interest and Appellant. | “dL pe CITY OF MORGAN HILL’S PETITION FOR REVIEW 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: lleone@leonealberts.com kalberts@leonealberts.com Attorneys for Plaintiff and Respondent CITY OF MORGAN HILL 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 Respondent; MORGANHILL HOTEL COALITION, Real Party in Interest and Appellant. Case No. Sixth Dist. No. H043426 Santa Clara Super. Ct. No. 16- CV-292595 CITY OF MORGAN HILL’S PETITION FOR REVIEW 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: lleone@leonealberts.com kalberts@leonealberts.com _ Attorneys for Plaintiff and Respondent CITY OF MORGANHILL TABLE OF CONTENTS I. QUESTIONS PRESENTED .0......ceesesesseeseeseeeeeeeceessssseecessessesenneneseneneeseeateatey 4 Il. GROUNDS FOR REVIEW.....sceccssssssseeeeessneeessesueeeneecueceessssnustesenecenanetensees 4 Il. FACTUAL AND PROCEDURAL BACKGROUND .......coeeeeeeeeeeeeeee 7 A. The History of the Subject Property and the Referendum..........00.....0 7 B. Procedural Background ............ 0 ceeeesesceeseseneceeesscessceeenesensessseesesesgeereeeegs 9 C. Petitions For Rehearing.............cccecseccesecsseeeseeeeeeeeesestscracneesneessseseneeaeeees 10 TV. ARGUMENTcece ccccecccsecsesesseceseae cossnseseseceessecnseeseaeecacenaaseesgeacseseneseseeseastaeeegs 10 A. Consistency and Certainty Are Two Paramount Requirements For Proper Administration and Implementation of the Planning and Zoning Law ........:eecsscesscecersessesssseesseneenseceesnseseesesssssesseseseensessesessesees 10 B. The Sixth District’s Opinion in this Case and the Fourth District’s Opinion in deBottari Directly Contradict Each Other Regarding the Issues that Go to the Heart of the Consistency Requirement in the Planning and Zoning Law and the Proper Exercise of the Electorate’s Reserved Legislative PoWeP............cccccessssseseesssssereceseees11 C. The Sixth District and the Fourth District Reached Opposite Conclusions Regarding Whether Zoning Made Inconsistent By a General Plan Amendmentis Invalid, and thus, the DevelopmentStatus ofParcels with Such Newly Inconsistent Zoning Is Unclear ...........esscceececsssssseseeseeeeeseeesenseneeeeeesseseneseesenessssssenseaseaes 15 D. Referendums Such As the One AtIssue Pit the Electorate’s Reserved Power Against Property Owner’s Property Rights, And Thus This Court Must Resolve the Conflict At Issue-‘So As to Give Cities, Counties and Courts a Legal Path to Follow In Balancing These Important Rights0... cccceseeesseesssssseseeeteneeseeneeeeneneseneesteneneessetereeeneerenses 19 E. Joinder in Arguments Containedin Petition for Rehearing of River Park Hospitality, [ne .......... ccc cesecesesesseseesseseeseeeseeseeseesrenesenesseeseneenseseeneseeey21 V. CONCLUSION...cesssssssssssssessssesavssssnsnssassseseseaseaneetaniensensnessnannate21 TABLE OF AUTHORITIES -Cases Page(s) Assembly v. Deukmejian (1982) 30 Cal.3d 638 wcccccsccccssscccccscssesecsscecsseeerseecaecaessnevsecessesesaeeseeeseeeessesscaeteeesaes 9,14 Citizens ofGoleta Valley v. Board ofSupervisors (1990) 52 Cal.3d 553 iccccccccccsssceseccssceseessecesssseeeeeecesueesscessenmesssessnsseeseeasessenaeseeteaseses 10,7 City ofMorgan Hill v. Bushey (2017) 12 Cal.App.5th 34 oo. eseeeseeceeeneseeesecessensseresneessecsesssseseeeneesssnerseneeegs passim deBottariv. City Council (1985) 171 Cal.App.3d 1204 oo... eeeesssseesesseesescensssssssseseeeesssenessnensessesaeeesesens passim DeVita v. County ofNapa (1995) Q CalAth 763 ooccccccccccccssscessesessessesseeecsseeeeesceecseeensneeessneseeeesaeseeusecsestersesseeoeesanes 14 Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531 ciecceccsseeseccesccserecsseesssssseeeesescuueedsesseseseeesueseaeeeeeessnesasensseenes passim Orange Citizensfor Parks & Recreation v. Superior Court (2016) 2 Cal.Sth 141 co.ciecccecccsssecssecssscecesseeeescsseaecesseensesesesecssnesesseesesesesnesees 4,10, 9, 21 Resource Defense Fund v. County ofSanta Cruz (1982) ; 133 Cal.App.3d 800.000... ecssessssessceeseeeeccnsssessenessesnsesteceeessecascssssaeaeseensoeesneas 10 Sierra Club v. Board ofSupervisors (1981) | 126 Cal.App.3d 698 [179 Cal.Rptr. 261]... ccccecceescesseseeeeseeesenstseseeenes 12, 17 Yost v. Thomas (1984) 36 Cal.3d 561 eeccccccccccccccsesscssessessecceeeeceseceeseessessesseecsaeerscesareesneesessetseseaeeenetes 13 Statutes Gov. Code, section 65860 .......ccssescesecsssreeeeceeeesenssesseeeesseeeseseesssscesseesesesaes passim Gov. Code, section 65860(a) .....ccecceesecesseeeesesssssessecesereeseeenneesseeeeseeseres 5, 6, 13, 20 Gov. Code, section 65860(C) .....ccsscssccccssnreceseeesssenssssesesssanecseesseeeeseessentessenes passim Gov. Code, sections 65867 ......:cccecccesssreeeseeesssesssssesseessenesseneeeeseneeeeneesvesseeveceveeees 10 Gov. Code, sections 65359 oo... ecescssesssceseeccesessecsssseeseseenseeeseecnseeseneenrssensesneensaees 10 Gov. Code, sections 66473.5 ...ccccccceesseecessseesssessesesseesesesssenseeseseeeeeeneseesesestenenes 10 Other California Rules of Court, rule 8.200(a)(5) ..--..:cccseseeseseeeesseeeeeeeeceseesseseseateseaeensas 21 California Rules of Court, rule 8.500(D)(1) oo...eeeeeeeseeeecseeeceseeserseeseessasoesaaee 7 City of Morgan Hill, a municipality, Petitionerand Plaintiff in the trial court and Respondent on appeal, respectfully petitions for review of the decision of the Sixth District Court of Appeal in City ofMorgan Hill v. Bushey (2017) 12 Cal.App.Sth 34 (issued May 30, 2017, Court of Appeal No. H043426). A copy of the Slip Opinion (“Slip Op.”) is attached hereto. I. QUESTIONS PRESENTED 1. When city or county amends a parcel’s General Plan land use designation, does Government Code section 65860 render a parcel’s previously consistent, but now inconsistent, zoning invalid and ineffective immediately upon amendmentofthe General Plan? 2. Does Government Codesection 65860, which prohibits zoning ordinances that are inconsistent with a city’s or county’s general plan, preempt the electorate’s exercise oftheir legislative power through referendum to repeal an ordinance enacting consistent zoning, when if successful, the resulting zoning would beinconsistent with the city’s or county’s general plan? Il. GROUNDS FOR REVIEW | In this case, the Sixth District Court of Appeal issued a published decision that directly contradicts deBottari v. City Council (1985) 171 Cal.App.3d 1204, a 37 year old precedentthat has been cited with approval by this Court in Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, Citizens of Goleta Valley v. Board ofSupervisors (1990) 52 Cal.3d.553 and Orange Citizens for Parks & Recreation v. Superior Court (2016) 2 Cal.5th 141. The Sixth District “disagreed with” the Fourth District calling its reasoning in deBottari “flawed.” (Slip Op. at pp. 2, 8.) The underlying factual scenario is the same in both cases and is one that regularly and repeatedly occurs in cities and counties across California. ~ A city or a county amendsits General Plan to change the landuse | designation for a specific parcel. Upon enactmentofthe GeneralPlan amendment, the parcel’s then existing zoning becomes inconsistent with the General Plan in violation of Government Code section 65860(a). The legislative body then passes a zoning ordinance to make the parcel’s zoning consistent with the General Plan. Opponents of the property owner’s developmentplan for the parcel then submit a referendum petition challenging the new consistent zoning, becauseit would allow the property owner’s planned use for the parcel. Submission of the referendum petition automatically prevents the new zoning ordinance going into effect and leaves the parcel with inconsistent zoning for an unknown amountof time up to three years, at worst case. The question in this case and in deBottariis: does the consistency requirement in Government Code section 65860 render the referendum petition invalid, because if the referendum is successful, the parcel will be left with inconsistent zoning? In other words, can the electorate use their legislative power to reject consistent zoning when doing so wouldleave the parcel with inconsistent zoning? For the past 37 years, deBottari providedcities, counties and courts a bright line rule to follow regarding how to handle this situation. The Fourth District in deBottari said the electorate cannot use its legislative power in this manner, because the referendum petition would leave the parcel with inconsistent, and therefore invalid, zoning. As such, it held that the referendum petition wasinvalid and should not be placed on the ballot. Therefore, cities and counties knew they hadto place the referendum onthe ballot under the Elections Code, but then could bring an action to have it removed from the ballot. Lower courts knew that such referendum petitions were invalid and could be removedfrom the ballot. Voters whoresearchedthe law prior to circulating their petition knew that a safer route to achieve their goals would be to exercise their legislative power through an initiative to choose their preferred consistent zoning. The Sixth District in this case, on the other hand,said the electorate could use its legislative powerto reject consistent zoning, even whenthe result would be inconsistent zoning. It disagreed with the Fourth Districtcalling its reasoning in deBottari “flawed.” First the Sixth District interpreted Government Code section 65860(a) as only invalidating newly enacted inconsistent zoning. It found that zoning wasinitially consistent, but became inconsistent by amendmentofthe General Plan, was governed by Government Codesection 65860(c). Since subsection (c) gave legislative body a reasonable time to enact consistent zoning, the Sixth District held that the newly inconsistent zoning was not invalid. Thus, whena successful referendum petition repealed the city council’s first choice of consistent zoning, it did not “enact” or maintain invalid zoning for the parcel. The Sixth District reasoned that this inconsistent zoning wasstill “valid”andthe city council still could adopt other consistent zoning. The Sixth District then noted that this new consistent zoning would be valid so long as it did not contain the same characteristics of the rejected consistent zoning that gave rise to the referendum petition. Therefore, it held that the referendum petition wasnotinvalid and could not be removed from theballot. As this Court stated in Lesher Communications, Inc. v. City of Walnut Creek: [P]ersons who seek to develop their land are entitled to know what the applicable law is at the time they apply for a building permit. City officials must be able to act pursuant to the law, and courts must be able to ascertain a law's validity and to enforce it. 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. (Lesher Communications, Inc. v. City of Walnut Creek, supra, 52 Cal.3datp. 544.) The direct conflict between deBottari and the Sixth District’s decisionin this case destroysthe certainty of the law that this Court in Lesher stated wasofthe utmost importance. If the Court does not rectify the conflict by providing clear guidance on the conflicting issues of these cases, cities and counties will be forced to choose to follow one precedentor the other. And giventhe rights at issue, regardless of which precedent they choose, the city or county will be sued, either by the voters for invalidating the referendum or by the property ownerfor leaving the parcel with inconsistent zoning. Once in court, the lower courts will also be left without any clear guidanceresulting in inconsistent and contradicting judgmentsacross the state regarding vital property rights and the electorate’s reservedlegislative powers. Thus,this case presents both of the grounds for review set forth in California Rules of Court, rule 8.500(b)(1): (1) the court of appeal’s published decision creates a conflict in long-established case law, so that review is necessary to secure uniformity of decision, and (2) this case concerns legal questions of broad public importance, affecting the rights and powerscities and counties, property owners, and voters throughout California. IW. FACTUAL AND PROCEDURAL BACKGROUND A. The History of the Subject Property and the Referendum Atissue in this case is the zoning of a vacantparcel of land located at the 850 Lightpost Parkway in the City ofMorgan Hill (“Subject Property). (Joint Appendix,(“JA”) Vol. I. at 60). The parcels to the south are designated for commercial landusein the City’s General Plan. The parcels to the north, east and west are designatedfor industrial land use in the City’s General Plan. (Id.) The Subject Property is adjacent to U.S. 101 about half 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-LightIndustrial. (Id.) On November 19, 2014, the Morgan Hill City Council amended the City’s General Plan to change the land use designation for the Subject Property to Commercial. (Id.) Therefore as ofNovember 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/Respondent River Park Hospitality, Inc. (“River Park”), applied for a zoning amendmentto change the Subject Property’s zoning to General Commercial from ML-LightIndustrial. (Id. at 60.) On April 1, 2015, the City Council adopted Ordinance No. 2131, which changed the Subject Property’s zoning to General Commercial and made it consistent with its Commercial General Plan land use designation.(Id. at 60-61; 64, 116, 276.) On May1, 2015, before Ordinance No. 2131 and the General Commercial zoning becameeffective, Appellant Morgan Hill Hotel Coalition (“Hotel Coalition”) filed a petition for referendum seeking to repeal Ordinance No. 2131 and maintain the parcel’s ML-LightIndustrial zoning.(Id. at 115, 123.) Appellant’s stated purpose of the Referendum wasto preserve industrial land in the City of Morgan Hill and to prevent the development of a competitor hotel on parcel by River Park. (JA Vol. II at 480, 482.) Thereafter, the City Council adopted a Resolution accepting the Morgan Hill City Clerk’s Certificate ofExamination and Sufficiency as to the Referendum. (JA Vol. I at 65, 116; Vol. II at 291-293). On July 15, 2015, the City Council further considered its response to the Referendum and based on deBottari, concluded that allowing the Referendum to go to a vote and, potentially, become law would enact zoning that was inconsistent with the City’s General Plan. Therefore, the City Council decided to discontinue processing the Referendum. (JA Vol. I at 65, 93). On February 17, 2016, the City Council reconsidered its possible actionsin response to the Referendum (JA Vol. II at 404-405) and adopted Resolution No. 16-032 directing the City Clerk to place the Referendum onthe ballot of the June 7, 2016 election. (JA Vol. I at 65, 101-104.) It also authorizedthefiling of the instant lawsuit to have the Referendum nullified as legally invalid and removed from the ballot. (Id.) B. Procedural Background On March 11, 2016, City brought an action against Shannon Bushey, the Registrar of Voters for Santa Clara County, and Irma Torrez, City Clerk for the City of Morgan Hill, seeking an alternative and peremptory writ to removethe Referendum from the ballot and to certify Ordinance No. 2131. (JA Vol. [at 13.) On March 29, 2016, the superior court, relying on deBottari, granted City’s petition. (JA, Vol. II at 484-487.) It found that City had established the “invalidity” of the referendum by showingthat “the current zoning in question is inconsistent with the City’s General Plan—andtherefore presumptively invalid. (id. at 485.) The superior court went on to hold: [W]ere the voters to 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, andit is precisely the result urged by RealParty in Interest [Hotel Coalition].” (Id.) The court ordered that the referendum be removed from the ballot and that Ordinance No.2131 be 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 May 30, 2017, the Sixth District Court of Appeal issued a published decision overturning the superior court’s writ of mandate and rejecting deBottari as “flawed.”(Slip Op. at 8-9.) The Sixth District held that “a referendum petition challenging an ordinance that attempts to makethe zoning for a parcel consistent with the parcel’s general plan land use designation is not invalid if the legislative body remainsfree to select another consistent zoning for the parcel should the referendum result in the rejection of the legislative body’s first choice of consistent zoning.” (Slip Op. at 1) “The new zoning ordinance will bevalid, notwithstanding the referendum,so long as ‘the new measureis “essentially different’ from the rejected provision and is enacted ‘not in bad faith, and not with intent to evade the effect of the referendum petition’... .’ (Assembly v. Deukmejian (1982) 30 Cal.3d 638, 678.) Consequently, the existenceof section 65860 doesnot establish the invalidity of Coalition’s referendum.”(Id. at 8.) C. Petitions For Rehearing Both the City and River Park filed a Petition for Rehearing. On June 23, 2017, the Court ofAppeal denied both Petitions for Rehearing. IV. ARGUMENT A. Consistency and Certainty Are Two Paramount Requirements For Proper Administration and Implementation of the Planning and Zoning Law. Asthis Court has explained on numerousoccasions, “the keystone of regional planning is consistency -- between the general plan,its internal elements, subordinate ordinances, andall derivative land-use decisions.” (Citizens ofGoleta Valley v. Board of.Supervisors, supra, 52 Cal.3d at pp. 572-573 citing Resource Defense Fund v. County ofSanta Cruz (1982) 133 Cal.App.3d 800, 806; deBottari v. City Council, supra, 171 Cal.App.3d at pp. 1210-1213.) This Court has further explainedthat: 99999 Until 1971, the general plan was “just an “interesting study, which did not bind local land use decisions. (deBottari v. City Council (1985) 171 Cal.App.3d 1204, 1211.) But now “‘[t]he propriety of virtually any local decision affecting land use and development depends uponconsistency with the applicable general plan andits elements.” (Citizens ofGoleta Valley v. Board of Supervisors, supra, 52 Cal.3d at p. 570, quoting Resources Defense Fund v. County ofSanta Cruz (1982) 133 Cal.App.3d 800, 806; 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].) “A zoning ordinance that conflicts with a general planis invalid at the timeit is passed.” (Lesher Communications, Inc. v. City of Walnut Creek, supra, 52 Cal.3d at p. 544.) (Orange Citizensfor Parks & Recreation v. Superior Court, supra, 2 Cal.5th at p. 153.) Therefore, a city or county cannot approveanyusefor a parcelthat is 10 inconsistent with the parcel’s zoning, which must be consistent with any applicable Specific Plan, which both must be consistent with General Plan. In order to meet this consistency requirement, however, cities, counties, courts and property owners must know what development mustbe 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 should be able to “take an individual parcel and check it against the plan and then know which uses would be permissible.” “[P]Jersons 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 must be able to ascertain a law's validity and to _ enforce it.” (id. at pp. 159-160.) These keystoneprinciples of consistency and certainty are greatly underminedbythe direct conflict between deBottari and this case. Without resolution and clarity from this Court, cities, counties, courts and property owners will have to make land use decisions based on uncertain and opposing law and thereby render inconsistent and conflicting decisions on an ad hocbasis. This is not the planned, consistent studied approach contemplated by the Planning and Zoning Law. B. The Sixth District’s Opinion in this Case and the Fourth District’s Opinion in deBottari Directly Contradict Each Other Regarding the Issues that Go to the Heart of the Consistency Requirementin the Planning and Zoning Law and the Proper Exercise of the Electorate’s Reserved Legislative Power. Regularly across California cities and counties are confronted with referendum petitions challenging a zoning ordinance that would enact consistent zoning following a General Plan amendment, which rendered the existing zoning inconsistent. These petitions are almost always submitted by opponentsto the property owner’s planned developmentfor the parcel in question.In deBottari, the referendum proponents opposed medium, as opposed to low density, housing. In 11 the case at bar, the Hotel Coalition opposed a new hotel and the loss ofindustrial land in the City.’ In thesesituations,ifthe referendum proponents were successful and the electorate voted against the new zoning,the parcel’s zoning would remain inconsistent with the applicable General Plan. deBottari established a bright line rule that has guided cities and counties for decades. The electorate cannot by referendum repeal zoning for a parcel that is consistent the city’s or county’s general plan, when if the referendum is -successful, the parcel would be left with inconsistent zoning. The Fourth District Court of Appeal held that: A zoning ordinanceinconsistent with the general plan at the time of its enactmentis "invalid when passed." ( Sierra Club v. Board of Supervisors (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 amendedplan calls for a higher residential density. Notwithstanding this fact, plaintiff urges that 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 which to rectify the inconsistency. Plaintiff readily concedes some remedialaction by the council would then be required. Plaintiff suggests that the council would havethree 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 amendedgeneral plan to conform to the zoning ordinancepreferred by the voters. ' In its decision, the Sixth District described the purpose of the referendum asonly to prevent the developmentofa hotel on the Subject Property. (Slip op.at pp. *2-3.) The City. in its Petition for Rehearing informedthe court that this was a misstatementof fact as the purposeofthe referendum wasalso to preserve industrial landin the City. (City Petition for Rehearing at pp. 4-8.) 12 Unfortunately, all of the options offered by plaintiff beg the question of whether the voters, ab initio, have the right to enact an invalid zoning ordinance. Clearly, section 65860, subdivision (c), was enacted to provide the legislative body with a "reasonable time" to bring zoning into conformity with an amendedgeneralplan. It would clearly distort the purpose of that provision were weto construeit as affirmatively sanctioning the enactment of an inconsistent zoning ordinance. (deBottari v. City Council, supra, 171 Cal.App.3d at pp. 1212-1213.) In this case, the Sixth District Court of Appeal “disagreed with deBottari” calling the Fourth District’s reasoning “flawed.” (Slip Op. at pp. 2, 8.) The Sixth District found the Hotel Coalition’s referendum valid, based on reasoningthat contradicted the Fourth District’s interpretation of Gov. Code, § 65860 andthe | validity of the parcel’s inconsistent zoningifthe electorate voted in favor of the Referendum andrepealed the consistent zoning: “(T]he rezoningoflandis a legislative act [citation] subject to referendum [citation].” (Yost v. Thomas (1984) 36 Cal.3d 561, 570.) “A zoning ordinanceshall be consistent with a city or county general plan... .” (Gov. Code, § 65860, subd. (a).) “A zoning ordinance . that conflicts with a general plan is invalid at the timeit is passed.” (Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, 544 (Lesher).) However,“[i]n the event that a zoning ordinance becomesinconsistent with a general plan by reason of amendmentto the plan, or to any elementofthe plan, the zoning ordinance shall be amended within a reasonable timeso thatit is consistent with the general plan as amended.” ([Gov. Code] § 65860, subd. (c).) “The obvious purpose of subdivision (c) is to ensure an orderly process of bringing the regulatory law into conformity with a new or amendedgeneral plan... .” (Lesher, at p. 546.) In this case, City’s ML-Light Industrial zoning for the parcel did not automatically becomeinvalid in November 2014 becausethat zoning wasconsistent with City’s general plan prior to the general plan amendment. Instead, City had “a reasonable time” under section 65860, subdivision (c) to amend the zoning of the parcel to makeit consistent with the general plan. [Ordinance No. 2131] was City’s attempt to do so. The question before us is whether the voters could validly utilize the power of referendumto reject City’s chosen method of making the parcel’s zoning consistent with the general plan. 13 “T]he local electorate’s right to initiative and referendum is guaranteed by the California Constitution . . . and is generally co- extensive with the legislative power of the local governing body... . [{] . . . [However,] the initiative and referendum power[cannot] be used in areas in which the local legislative body’s discretion [is] largely preempted by statutory mandate.” (DeVita v. County ofNapa (1995) 9 Cal.4th 763, 775, 776.) City claimsthat the electorate’s referendum power cannotbe used to reject [Ordinance No. 2131], because City’s discretion with respect to the zoning of the parcel was preempted by section 65860’s mandate that the parcel’s zoning be consistent with City’s general plan. The problem with this argumentis that section 65860 did not require City to adopt [Ordinance No. 2131]. It preempted City from enacting a new zoning that was inconsistent with the general plan, but it did not preclude City from exercising its discretion to select one of a variety of zoning districts for the parcel that would be consistent with the general plan. Since City retainedthis discretion, section 65860 did not preclude the electorate from exercising its referendum powerto reject City’s choice of zoning district in [Ordinance No.2131]. OK ok 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. Section 65860 does not automatically render invalid a preexisting zoning ordinance that becameinconsistent only after a subsequent general plan amendment. Where,as here, an ordinance attempts to resolve that inconsistency by replacing the inconsistent zoning with a consistent zoningthat is just one of a numberofavailable consistent zonings, the legislative body is free to choose one of the other consistent zonings if the electorate rejects the legislative body’s first choice of consistent zonings. The new zoning ordinance will be valid, notwithstanding the referendum, so long as “the new measure is ‘essentially different’ from the rejected provision andis 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 not establish the invalidity of Coalition’s referendum. (Slip Op.at pp. 5-6, 8.) 14 These two published decisions present completely opposite guidance to cities, counties, courts and voters in California on important provisions of Zoning and Planning Law andthe powerofthe electorate when exercising its reserved legislative power throughreferenda. Oneofthe concerns addressed by the Sixth District is the deference given to the voters’ exercise of their reserved legislative power. The Fourth District in deBottari addressed this point as well, and again reached the opposite conclusion. It held that Government Code section 65860’s mandate for zoning consistent with the general plan wasoneofthose mandates that preempted the local electorate’s exercise of its legislative power through referendum. Judicial deferenceto the electoral process does not compeljudicial apathy towardspatently invalid legislative acts. Nor are we persuaded that 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 development laws;it is the principle which infused the concept ofplanned growth with the force of law. Weare not persuadedthatthis principle must now besacrificed on the altar of an invalid referendum. (deBottari v. City Council, supra, 171 Cal.App.3d at p. 1213.) Thus, deBottari informed the electorate that if it wanted to use its legislative power to change a city’s or county’s choice of consistent zoning to replace inconsistent zoning,it should use its power through an initiative to choose the consistent zoning districtit preferred. C. TheSixth District and the Fourth District Reached Opposite Conclusions Regarding Whether Zoning MadeInconsistent By a General Plan Amendmentis Invalid, and thus, the Development Status of Parcels with Such Newly Inconsistent Zoning Is Unclear. The first conflict between these two published decisions concerns the validity of inconsistent zoning that becomes inconsistent due to amendmentofthe General Plan. The Zoning and Planning Code, Government Code section 65860, States: 15 (a) County or city zoning ordinancesshall 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) The city 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, maybring an action or proceeding in 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 amendedwithin a reasonable time sothatit is consistent with the general plan as amended.... (Gov. Code, § 65860.) The Fourth District in deBottari interpreted Government Codesection 65860(a) to invalidate any zoning that was inconsistent with the General Plan upon enactment. Whenpresented with the argument that Government Code section 65860(c) meant that zoning made inconsistent by amendment ofthe General Plan wasstill valid, because the City had a reasonable time to make the zoning consistent, the Fourth District rejected this contention outright. Notwithstanding this fact, plaintiff urges that the voters should be permitted to enact an inconsistent zoning ordinance becausesection 65860, subdivision (c), provides for a "reasonable time" within which an inconsistent zoning ordinance maybe broughtinto conformity with an amended general plan. Thus, plaintiff points out, even if the referendum were approved the council would have a "reasonable time" within whichto rectify the inconsistency. Unfortunately, all of the options offered by plaintiff beg the question of whetherthe voters, ab initio, have the right to 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 amendedgeneral plan. It would clearly distort the purpose of that provision were weto construeit as 16 affirmatively sanctioning the enactment of an inconsistent zoning ordinance. (deBottari v. City Council, supra, 171 Cal.App.3dat p. 1212.) This Court then took this holding in deBottari a step further in Lesher and held that: A zoning ordinance that conflicts with a general plan is invalid at the timeit is passed. (deBottari v. City Council, supra, 171 Cal.App.3dat p. 1212; Sierra Club v. Board ofSupervisors, supra, 126 Cal.App.3d at p. 704.) 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 Communications, Inc. v. City of Walnut Creek, supra, 52 Cal.3d at p. 544 (emphasis added).) Because the preemptive effect of Government Codesection 65860 invalidates an inconsistent zoning ordinance, it seems only logical that this preemptive effect would invalidate any inconsistent zoning regardless whetherit was inconsistent when enacted or made inconsistent by amendmentofthe General Plan. | | The Sixth District in this case, however, disagreed with this logic, with deBottari, and by extension Lesher. It concluded that because Government Code section 65860(c) gives the city or county a reasonable time to make consistent zoning rendered inconsistent by amendmentofthe General Plan, the newly inconsistent zoning was not immediately invalid upon amendmentofthe General Plan. Instead, it remained valid, even if inconsistent, until the City adopted consistent zoning. Given these two conflicting published decisions, city and county officials are left with no clear guidance regarding whether zoning that is madeinconsistent with the General Plan due to a General Plan amendmentis invalid, still valid, or only valid until a “reasonable time” has passed without the city or county enacting consistent zoning. Again, deBottari established a bright line test — inconsistent 17 ~ zoning is invalid. But the Sixth District’s interpretation of Government Code section 65860 creates a myriad of conflicting and confusing questions. For example, if the newly inconsistent zoning is not invalid, does that mean it is still effective so as to govern development decisions regarding the parcel despite its inconsistency with the General Plan? Can the city or county approve a developmentplan or building permit for a use that is consistent with the General Plan but non-conforming to the inconsistent zoning? Mustthe city or county issue a building permit that authorizesconstruction of buildings the use ofwhich could be inconsistent with the General Plan but is authorized by the inconsistent zoning? Howlongis 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 can city or county officials proper administer developmentin a uniform and consistent manneracrossall similarly situated property ownersin their jurisdiction? And whodecides whatis a reasonable.time? The city? The property owner? The courts? The Sixth District’s interpretation of Government Code section 65860 creates many more questions than it answers, and places cities, counties, property owners and courts in the impossible position of not knowing whetherinconsistent zoning created by General Plan amendmentis valid and effective for guiding development, zoning and building decisions. Asdiscussed above, consistency is the lynch pin of California land use law; all land use decisions must be consistent with the General Plan. Therefore, it would seem that at a minimum inconsistent zoningis ineffective. It cannot be given any effect to guide decisions regarding developmentofthe parcel. Yet, the Sixth District held differently. As such, this Court should grant this petition for review to bring clarity back to this keystone issue of California Planning and Zoning Law. 18 D. Referendums Such Asthe OneAtIssuePit the Electorate’s Reserved Power Against Property Owner’s Property Rights, And Thus This Court Must Resolve the Conflict At Issue So As to Give Cities, Counties and Courts a Legal Path to Follow In Balancing These Important Rights. The conflict between the decision in this case and deBottarialso places cities and counties in a precarious predicament when presented with a referendum challenging their choice of consistent zoning. Doesthe law invalidate the referendum suchthat the city or county can seek to have the referendum removed from the ballot so the consistent zoning can go into effect? Or does the law require the city or county to go forward with the election on the referendum, despite the _ fact that doing so will leave the parcel and its property owner withoutconsistent zoning? Or doesthe validity of the referendum turn on whetherthe city or county has the ability to enact other consistent zoning designations? If the first is true as established by deBottari, then the properlegal courseis clear. The referendum is invalid and should not be placed before the voters. A voter whowantsto challenge the city’s or county’s choice of consistent zoning should exercise their reserved legislative power through an initiative to select the consistent zoning they prefer. . However,ifthe second option is true, as held in the case at issue, then the city and county must leave a parcel without consistent zoning until the election, which could be two years away, and possibly for a year after that ifthe referendum is successful in repealing the consistent zoning. And depending onthe correct interpretation of Government Codesection 65860(c), that inconsistent zoning will either be invalid and ineffective or valid and effective to drive developmentand use of the property during this possible three year time period. Property owners will have noclearlegal use of their property to guide their developmentchoices for up to three years. Or longerifthe opponents to their developmentare free to submit 19 successive referendum petitions to each of the city or county’s selections of consistent zoning. But if the last option is true and the validity depends on the availability of alternative consistent zoning choices, how manyother choices must exist before the referendum becomesinvalid? One? Two? Three? Doesit matter if none of the available choices are actually appropriate for the parcel in question? And who decides the appropriateness ofthe allegedly available alternative consistent zoning districts? The city or county? The court? If it is the court, does that violate separation ofpowers? Doesit matter that the stated purpose of the referendum asset forth in the ballot materials submitted by the proponentis to preserve a use for the parcel that is inconsistent with its General Plan land designation? Pursuantto the stay provisions in the Elections Code, this stated purpose would preclude the city or county from enacting any consistent zoning for a year after the election if the referendum is successful in repealing the consistent zoning. Therefore, the electorate is effectively using its legislative power to mandate inconsistent zoning forat least one year. Isn’t this one year mandate akin to “enacting” inconsistent zoning in violation of Government Code section 65860(a)? Or is one year a “reasonable time” under 65860(c) for a city or county to leave a property owner without consistent and effective zoning? All of this confusion completely eradicates one of the fundamental requirements of the Planning and Zoning Law — certainty. As this Court stated in Lesher: [P]ersons who seek to develop their land are entitled to know what the applicable law is at the time they apply for a building permit. City officials must be able to act pursuantto the law, and courts must be able to ascertain a law's validity and to enforceit. 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. 20 (Lesher Communications, Inc. v. City of Walnut Creek, supra, 52 Cal.3dat p. 544; see also Orange Citizensfor Parks & Recreation v. Superior Court, supra, 2 Cal.Sth at pp. 159-160.) Now only this Court can provide property owners, city and county officials, courts, and voters, the certainty these important issues necessitate. E. Joinder in Arguments Contained in Petition for Rehearing of River Park Hospitality, Inc. Pursuant to California Rules of Court, rule 8.200(a)(5), the City joins in and adopts by reference the Petition for Review filed by River Park Hospitality, Inc. Vv. CONCLUSION For the foregoing reasons, the Court should grantthis Petition for Review and substantively review the Sixth District’s Decision in this case in order to resolve the conflict it creates with deBottari and bringclarity to these legal questions of broad public importance, affecting the rights and powerscities and counties, property owners, and voters throughout California. Dated: July 10, 2017 Respectfully submitted, LEONE & ALBERTS Attorneysfor Plaintiff and Respondent CITY OF MORGAN HILL 21 RULE8.204(c) CERTIFICATION Pursuant to rule 8.204(c) of the California Rules of Court, I hereby certify that the foregoing Petition for Review is proportionately spaced in Times New Roman 13-point type and contains 6,279 words as counted by Microsoft word- processing software. Dated: July 10, 2017 atherine A. Alberts, Esq. | Attorneysfor Plaintiff and Respondent CITY OF MORGANHILL 22 STATEMENT OF RELATED CASES Petitioner City of Morgan Hill is not aware of any related cases pending before the Court of Appeal or this Court Dated: July 10, 2017 Catherine A. Alberts, Esq. Attorneys for Plaintiff and Respondent CITY OF MORGANHILL 23 Filed 5/30/17 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT CITY OF MORGANHILL, No. H043426 (Santa Clara Plaintiff and Respondent, Super. Ct. No. CV292595) Vv. SHANNON BUSHEY, AS REGISTRAR OF VOTERS,etc., et al., Defendants and Respondents; RIVER PARK HOSPITALITY, Real Party in Interest and Respondent; MORGANHILL HOTEL COALITION, Real Party in Interest and Appellant. Appellant Morgan Hill Hotel Coalition (Coalition) appeals from the superior court’s order granting a mandate petition brought by respondent City of MorganHill (City) and removing from the June 2016 ballot Coalition’s referendum challenging City’s ordinance changing the zoning for a parcel owned by respondent River Park Hospitality (River Park). Although Coalition’s referendum had properly qualified for placement on the ballot, City claimed that the referendum wasinvalid because,ifthe electorate rejected the ordinance, it would create an inconsistency between the zoning for the parcel and the general plan’s land use designation for the parcel. On appeal, Coalition contendsthat a referendum that seeks to prevent a zoning change from taking effect does not create an inconsistency with a general plan’s land use designation but merely maintains the preexisting status quo. The superior court relied on deBottari v. City Council (1985) 171 Cal.App.3d 1204 (deBottari) in rejecting Coalition’s position. We disagree with deBottari and hold that a referendum petition challenging an ordinance that attempts to make the zoning for a parcel consistent with the parcel’s general plan land use designationis not invalid if the legislative body remainsfree to select another consistent zoning for the parcel should the referendum result in the rejection of the legislative body’s first choice of consistent zoning. I. Background This case concerns a vacant parcel at 850 Lightpost Parkway in Morgan Hill owned by River Park. The land use designation for this parcel in City’s general plan was “Industrial” until November 2014. In November 2014, City amendedits general plan to changethe land use designation for this parcel to “Commercial.” The parcel’s zoning was “ML-Light Industrial” before the November 2014 general plan amendment and remained unchangedafter the general plan amendment. In April 2015, City’s city council approved Ordinanceno. 2131 (O-2131). O-2131 would have changedthe parcel’s zoning from ML-LightIndustrial to “CG-General Commercial.” The “General Commercial” zoning would have permitted a hotel on the parcel. “General Commercial”is just one of a number of commercial zoning districts in City. On May 1, 2015, Coalition submitted a timely referendum petition challenging O-2131. The stated purposeofthe referendum wasto preventthe City’s general plan recognizes three different commercial land use designations: Commercial, General Commercial, and Non-Retail Commercial. developmentofa hotel on the parcel. On May 20, 2015, City adopted a resolution - accepting a certificate of sufficiency as to the referendum. In July 2015, City “discontinue[d] processing” the referendum because City believed that the referendum “would enact zoning that was inconsistent with” City’s general plan. City nevertheless recognized that it could change the parcel’s zoning to “Highway Commercial”rather than “General Commercial” and be consistent with the general plan’s “Commercial” land use designation for the parcel. In February 2016, City reconsideredits position. It passed a resolution calling for a June 2016 special election to submit the referendum to the voters. At the same time, it authorized the filing of an action to have the referendum “nullified as legally invalid and removed from the ballot.” City filed this action in March 2016 seeking to remove the referendum from the June 2016 ballot. On March 29, 2016, the superior court, relying on deBottari, granted City’s petition. It found that City had established the “invalidity”of the referendum by showing that “the current zoning in question is inconsistent with the City’s General Plan—and therefore presumptively invalid.” The court ordered that the referendum be removed from the ballot and that O-2131 be certified “as duly adopted and effective immediately ... .” Coalition timely filed a notice of appeal on April 1, 2016. 2 . ; Le . . River Park claimsthat the notice of appeal is flawed becauseit states that the appealis from a March 30 order,rather than a March 29 order,andit identifies the case numberas “16CV292295”instead of “16CV292595.” Thelatter claim is incorrect. The copyofthe notice of appeal in the clerk’s transcript (whichis file-stamped)correctly identifies the case number as “16CV292595.” A copyofthe notice of appeal (which is not file-stamped) in the joint appendix misstates the case number as “16CV292295.” Becausethe filed copy of the notice of appeal has the correct case number,it is not flawed in this respect. The superior court’s order was dated March 28 and filed on March29. It is true that the notice of appeal states that the appeal is from a “March 30, 2016” order, but River Park admits that it was not misled by this slight error. II. Analysis The parties agree that we exercise de novo review because the facts are undisputed and the only issue is one of law. “The referendum is the powerof the electors to approve or reject statutes or parts of statutes except urgencystatutes, statutes calling elections, and statutes providing for tax levies or appropriations for usual current expensesofthe State.” (Cal. Const., art. II, § 9.) “The referendum processallowsthe voters to veto statutes and ordinances enacted by their elected legislative bodies before those laws becomeeffective. [Citation.] Referenda do not enact law and maynot address certain subjects. In contrast, the electorate maylegislate on any subjectbyinitiative.” (Referendum Committee v. City of Hermosa Beach (1986) 184 Cal.App.3d 152, 157-158.) Ifa referendum petition challenging an ordinanceis timely filed andcertified to be sufficient, “the effective date of the ordinanceshall be suspendedandthe legislative body shall reconsider the ordinance.” (Elec. Code, § 9237.) “Ifthe legislative body does not entirely repeal the ordinance against whichthe petitionis filed, the legislative body shall submit the ordinance to the voters .... The ordinance shall not becomeeffective until a majority of the voters voting on the ordinance vote in favorof it. If the legislative body repeals the ordinance or submits the ordinance to the voters, and a majority of the voters voting on the ordinance do notvote in favorofit, the ordinance shall not again be enacted by the legislative body for a period of one year after the date ofits repeal by the legislative body ) “The notice of appeal mustbe liberally construed. The notice is sufficientif it identifies the particular judgment or order being appealed.” (Cal. Rules of Court, rule 8.100(a)(2).) “[N]otices of appeal are to be liberally construed soasto protect the right of appealif it is reasonably clear what appellant wastrying to appeal from, and wherethe respondent could not possibly have been misled or prejudiced.” (Luz v. Lopes (1960) 55 Cal.2d 54, 59.) Since the superior court issued no order in this case on March 30, respondents could notpossibly have been misledor prejudicedby this slight flaw in the notice of appeal. Wereject River Park’s challenges to the validity of the notice of appeal. 4 or disapproval by the voters.” (Elec. Code, § 9241; see Rossi v. Brown (1995) 9 Cal.4th 688, 697.) : _ OO “T]he rezoning oflandis a legislative act [citation] subject to referendum [citation].” (Yost v. Thomas (1984) 36 Cal.3d 561, 570.) “A zoning ordinanceshall be consistent with a city or county general plan... .” (Gov. Code, § 65860, subd. (a).) “A zoning ordinancethat conflicts with a generalplan is invalidat the timeit is passed.” (Lesher Communications, Inc. v. City ofWalnut Creek (1990) 52 Cal.3d 531, 544 (Lesher).) However,“[i]n the event that a zoning ordinance becomesinconsistent with a general plan by reason of amendmentto the plan, or to any elementofthe plan, the zoning ordinance shall be amended within a reasonable timesothat it is consistent with the general plan as amended.” (§ 65860, subd. (c).) “The obvious purpose of subdivision (c) is to ensure an orderly process of bringing the regulatory law into conformity with a new or amendedgeneral plan... .” (Lesher, at p. 546.) In this case, City’s ML-Light Industrial zoning for the parcel did not automatically becomeinvalid in November 2014 because that zoning was consistent with City’s general plan prior to the general plan amendment. Instead, City had “a reasonable time” under section 65860, subdivision (c) to amend the zoning ofthe parcel to makeit consistent with the general plan. O-2131 was City’s attempt to do so. The question before usis whether the voters could validly utilize the power of referendum to reject City’s chosen method of making the parcel’s zoning consistent with the general plan. “(T]he local electorate’s right to initiative and referendum is guaranteed by the California Constitution . . . and is generally co-extensive with the legislative powerofthe local governing body. ... [§] ... [However,] the initiative and referendum power [cannot] be usedin areas in whichthe local legislative body’s discretion[is] largely Subsequentstatutory references are to the Government Code unless otherwise specified. preempted bystatutory mandate.” (DeVita v. County ofNapa (1995) 9 Cal.4th 763, 775- 776.) City claimsthat the electorate’s referendum powercannotbe usedto reject O-2131, because City’s discretion with respect to the zoning of the parcel was preempted by section 65860’s mandatethat the parcel’s zoning be consistent with City’s general plan. The problem with this argumentis that section 65860 did not require City to adopt O-2131. It preempted City from enacting a new zoning that wasinconsistent with the general plan, but it did not preclude City from exercising its discretion to select one of a variety of zoning districts for the parcel that would be consistent with the generalplan. Since City retained this discretion, section 65860 did not preclude the electorate from exercising its referendum powerto reject City’s choice of zoningdistrict in O-2131. City puts misplaced reliance on cases concerningthe initiative power. (Mission Springs Water District v. Verjil (2013) 218 Cal.App.4th 892, 919 [initiative]; Lesher, supra, 52 Cal.3dat p. 541 [initiative]; Legislature v. Eu (1991) 54 Cal.3d 492[initiative]; Mervynnev. Acker (1961) 189 Cal.App.2d 558 [initiative].) The electorate may not utilize the initiative power to enact a zoning inconsistent with a general plan because section 65860 preludes enactmentof a zoning that is inconsistent with a general plan. (Lesher, at p. 541.) However, section 65860 permits the maintenanceof inconsistent zoning pendingselection of a consistent zoning. Here, City permissibly maintained the inconsistent zoning of the parcelafter the November 2014 amendmentofthe general plan. The electorate’s exercise ofits referendum powerto reject or approve City’s attempt to select a consistent zoning for the parcel simply continued that permitted maintenanceofinconsistent zoning. The referendum does not seek to enact anything. Since it is undisputed that City could have selected any of a numberofconsistent zoning districts to replace the parcel’s inconsistent zoning, section 65860 did not preclude City or the electorate from rejecting the one selected by City in O-2131. We must confront deBottari, as the superior court relied on it, and City continues to rely on it. In deBottari, the City of Norco amendedits general plan to change the land use designation for a parcel “from residential/agricultural (0-2 units per acre) to residential-low density (3-4 units per acre).” Two weeksafter the general plan amendment, Norco adopted an ordinance to rezone the parcel “from ‘R-1-18° to ‘R-1-10.’” The new zoning ordinance changed the minimumlot size required for single family homeson the parcel from 18,000 square feet to 10,000 square feet, which was consistent with the general plan amendment. (deBottari, supra, 171 Cal.App.3d at pp. 1207-1208.) A timely and sufficient referendum petition was submitted challenging the zoning change. However, Norco refused to repeal the zoning changeor place the referendum before the voters because it claimed that the repeal of the zoning change “would result in the subject property being zoned inconsistently with the amended general plan, contrary to Government Code section 65860, subdivision (a).” The proponentsof the referendum unsuccessfully challenged Norco’s refusal in the superior court and then appealed to the Fourth District Court of Appeal. (deBottari, at p. 1208.) On appeal, the Fourth District concludedthat “the invalidity of the proposed referendum has been clearly and compellingly demonstrated” by the existence of section 65860. (deBottari, supra, 171 Cal.App.3d at p. 1212.) The Fourth District reasoned: “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.” It rejected the proponents’ argument that section 65860, subdivision (c) permitted Norco to “enact somealternative zoning scheme whichis consistent with the general plan”if the voters rejected the zoning change. (/bid.) “Unfortunately,all of the options offered by plaintiff beg the question of whether the voters, ab initio, have the right to enact an invalid zoning ordinance. Clearly, section 65860, subdivision (c), was enacted to provide the legislative body with a ‘reasonable time’ to bring zoning into conformity with an amended general plan. It would clearly distort the purpose of that provision were weto construeit as affirmatively sanctioning the enactmentof an inconsistent zoning ordinance.” (Jd. at pp. 1212-1213.) The Fourth District concluded that Norco had properly refused to submit the referendum to the voters. “[T]he referendum,if successful, would enact a clearly invalid zoning ordinance. Judicial deferenceto the electoral process does not compeljudicial apathy towardspatently invalid legislative acts.” (/d. at p. 1213.) 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 enactmentof an inconsistent zoning ordinance. Section 65860 does not automatically render invalid a preexisting zoning ordinance that became inconsistent only after a subsequent general plan amendment. Where,ashere, an ordinance attempts to resolve that inconsistency by replacing the inconsistent zoning with a consistent zoning that is just one of a numberofavailable consistent zonings, the legislative body is free to choose one of the other consistent zonings if the electorate rejects the legislative body’s first choice of consistent zonings.. The new zoning ordinance will be valid, notwithstanding the referendum,so long as “the new measureis ‘essentially different’ from the rejected provision andis 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 not establish the invalidity of Coalition’s referendum. The Fourth District’s decision in City ofIrvine v. Irvine Citizens Against Overdevelopment (1994) 25 Cal.App.4th 868, which simply relied on deBottari’s rationale, suffers from the same flaw. (/d. at pp. 874-875.) 5 . v4: . Weexpress no opinion onthe validity of a referendum challenging an ordinance that choosesthe only available zoning that is consistent with the general plan. III. Disposition The superior court’s order granting City’s petition is reversed. On remand, the superior court is directed to enter a new order denying City’s petition. Coalition shall . 6 recoverits costs on appeal. ° In its reply brief, Coalition requests attorney’s fees under Code of Civil Procedure section 1021.5. Coalition has not filed a motion for attorney’s fees or any supporting documentation. Appellate attorney’s fees may be sought by motion inthetrial court. (Cal. Rules of Court, rule 3.1702(c).) Mihara,J. WE CONCUR: Elia, Acting P. J. Bamattre-Manoukian,J. City of Morgan Hill v. Bushey, as Registrar of Voters, etc. et al. 10 H043426 11 Trial Court: Trial Judge: Attorneys for Plaintiff and Respondent, City of Morgan Hill: Attorneys for Defendant and Respondent, Shannon Bushey, as Registrar of Voters, etc.: Attorney for Defendant and Respondent, Irma Torrez, as City Clerk,etc.: Attorneys for Real Party in Interest and Respondent, River Park Hospitality: Attorneys for Real Party in Interest and Appellant, Morgan Hill Hotel Coalition: Santa Clara County Superior Court Honorable Theodore C. Zayner Katherine A. Alberts Louis A. Leone Tonan Mondescu Leone & Alberts Donald Alan Larkin Office of the City Attorney James R. Williams County Counsel Steve Mitra Assistant County Counsel Danielle Luce Goldstein Deputy County Counsel Scott D. Pinsky Law Offices of Gary M. Baum Jolie Houston Thomas P. Murphy Berliner Cohen, LLP Asit S. Panwala Law Office of Asit Panwala Jonathan Randall Toch J. Randall Toch, Attorney at Law City of Morgan Hill v. Bushey, as Registrar of Voters, etc. et al. H043426 12 Re: City of Morgan Hill v. Shannon Bushey,et al. California Supreme Court Case No.: Court of Appeal Case No.: H043426 PROOF OF SERVICE I, the undersigned, declare that I am employedin the City of Walnut Creek,State of California. I am over the age of 18 years andnot a party to the within cause; my business address is 2175 N. California Blvd., Suite 900, Walnut Creek, California. On July 10, 2017, I served the following documents: CITY OF MORGAN HILL’S PETITION FOR REVIEW COUNSEL FOR MORGAN HILL 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. Interim City Attorney City ofMorgan Hill 17575 Peak Avenue Morgan Hill, CA 95037-4128 COURT OF APPEALS Clerk of the Court Sixth District Court of Appeal 333 West Santa Clara Street. Suite 1060 San Jose, CA 95113 VIA MAIL COUNSEL FOR REAL PARTYIN INTERESTRIVER 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. Deputy County Counsel Office of the County Counsel County of Santa Clara 70 West HeddingStreet 9" Floor, East Wing San Jose, CA 95110 SUPERIOR COURT Clerk of the Court Honorable Theodore C. Zayner Santa Clara County Superior Court 191 N.First Street San Jose, CA 95113 |X] By placing a true copy thereof enclosed in a sealed envelope(s), addressed as above andplacing each for collection andmailing on that date following ordinary business practices. I am readily familiar with my firm's business practice of collection and processing of correspondence for mailing with the United States Postal Service and correspondenceplaced for collection and mailing would be deposited with the United States Postal Service at Walnut Creek, California, with postage thereon fully prepaid, that same day _ in the ordinary courseof business. [ ] By placing a true copy thereof enclosed in a sealed envelope(s), addressed as above, and depositing each envelope(s), with postage thereon fully prepaid, in the mail at Walnut Creek, California. VIA OVERNIGHT MAIL/COURIER [ ] Byplacing a true copy thereof enclosed in a sealed envelope(s), addressed as above, and placing each for collection by overnight mail service, or overnight courier service. I am readily familiar with my firm's business practice of collection and processing of correspondence/documents for overnight mail or overnight courier service, and that it is to be delivered to an authorized courier or driver authorized by the overnight mail carrier to receive documents, with delivery fees paid or provided for, that same day, for delivery on the following business day. . VIA FACSIMILE [ ] By arranging for facsimile transmission from facsimile number 925-974- 8601 to the abovelisted facsimile number(s) prior to 5:00 p.m. I am readily familiar with my firm's business practice of collection and processing of correspondence via facsimile transmission(s) and any such correspondence would be transmitted via facsimile to the designated numbers in the ordinary course of business. The facsimile transmission(s) was reported as complete and withouterror. VIA HAND-DELIVERY [ ] By placing a true copy thereof enclosed in a sealed envelope(s), addressed as above, and causing each envelope(s) to be. hand-served on that day by D&T SERVICESin the ordinary course of my. firm's business practice. VIA ELECTRONIC SERVICE — California Rules of Court, Rule 8.212(c)(a) [X] By electronically filing the document through TrueFiling, per California Rules of Court, Rule 8.212(c)(a), all requirementsaresatisfied. I declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on July 40, 2017, at Walnut Cree Re: City of Morgan Hill v. Shannon Bushey,et al. California Supreme CourtCase No.: Court of Appeal Case No.: H043426 PROOF OF SERVICE I, the undersigned, declare that I am employedin the City of Walnut Creek, State of California. I am overthe 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 July 12, 2017, I served the following documents: CITY OF MORGANHILL’S PETITION FOR REVIEW (W/ATTACHED DECISION) COUNSEL FOR MORGANHILL HOTEL COALITION Asit S. Panwala Law Office ofAsit Panwala 4 Embarcadero Center, Suite 1400 San Francisco, CA 94111 COUNSEL FOR DEFENDANT IRMA TORREZ Gary Baum, Esq. Scott Pinsky, Esq. Interim City Attorney City of Morgan Hill 17575 Peak Avenue Morgan Hill, CA 95037-4128 COURT OF APPEALS Clerk of the Court Sixth District Court of Appeal 333 West Santa Clara Street. Suite 1060 San Jose, CA 95113 VIA MAIL COUNSEL FOR REAL PARTY IN 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. Deputy County Counsel Office of the County Counsel County of Santa Clara 70 West Hedding Street 9" Floor, East Wing San Jose, CA 95110 SUPERIOR COURT Clerk of the Court Honorable Theodore C. Zayner Santa Clara County Superior Court 191 N.First Street San Jose, CA 95113 [X] By placing a true copy thereof enclosed in a sealed envelope(s), addressed as above and placing each for collection and mailing on that date following ordinary business practices. I am readily familiar with my firm's business practice of collection and processing of correspondence for mailing with the United States Postal Service and correspondence placed for collection and mailing would be deposited with the United States Postal Service at Walnut Creek, California, with postagethereon fully prepaid, that sameday [ ] in the ordinary course of business. By placing a true copy thereof enclosed in a sealed envelope(s), addressed as above, and depositing each envelope(s), with postage thereon fully prepaid, in the mail at Walnut Creek, California. VIA OVERNIGHT MAIL/COURIER [] By placing a true copy thereof enclosed in a sealed envelope(s), addressed as above, and placing each for collection by overnight mail service, or overnight courier service. I am readily familiar with my firm's business practice of collection and processing of correspondence/documents for overnight mail or overnight courier service, and that it is to be delivered to an authorized courier or driver authorized by the overnight mail carrier to receive documents, with delivery fees paid or provided for, that same day, for delivery on the following business day. VIA FACSIMILE [ ] By arranging for facsimile transmission from facsimile number 925-974- 8601 to the abovelisted facsimile number(s) prior to 5:00 p.m. I am readily familiar with my firm's business practice of collection and processing of correspondence via facsimile transmission(s) and any such correspondence would be transmitted via facsimile to the designated numbers in the ordinary course of business. The facsimile transmission(s) was reported as complete and withouterror. VIA HAND-DELIVERY [J By placing a true copy thereof enclosed in a sealed envelope(s), addressed as above, and causing each envelope(s) to be hand-served on that day by D&T SERVICESin the ordinary course of my firm's business practice. VIA ELECTRONIC SERVICE — California Rules of Court, Rule 8.212(c)(a) [ ] Byelectronically filing the document through TrueFiling, per California Rules of Court, Rule 8.212(c)(a), all requirements aresatisfied. I declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on July . 2017, at4Creek, California. KIMBERLYNy