MORGAN HILL, CITY OF v. BUSHEY

Respondent, City of Morgan Hill, Supplemental Brief

Cal.May 18, 2018

SUPREME COURT COPY IN THE SUPREME COURT OF THE STATE OF CALIFORNIA CITY OF MORGANHILL,a municipality, Plaintiff and Respondent, V. SHANNON BUSHEY, AS REGISTRAR OF VOTERS,etc., etal., Defendants and Respondents. RIVER PARK HOSPITALITY, Real Party in Interest and Respondent MORGANHILL HOTEL COALITION, Real Party in Interest and Appellant Case No. 8243042 Sixth Dist. No. H043426 Santa Clara Superior Court Case No. 16-CV-292595 SUPREME COURT FILED MAY 1 8 2018 Jorge Navarrete Clerk Deputy After a Decision by the Court ofAppeal Sixth Appellate District, Case No. H043426 Superior Court, Santa Clara County Case No. 16-CV-292595 PLAINTIFF AND RESPONDENT CITY OF MORGANHILL’S - SUPPLEMENTAL BRIEF UNDER CRC RULE8.520(D) DONALDA. LARKIN (SBN. 199759) City Attorney 17575 PEAK AVENUE MORGANHILL, CA 95037 TELEPHONE:(408) 778-3490 FACSIMILE: (408) 779-1592 donald.larkin@morganhill.ca.gov ATTORNEYSFOR PLAINTIFF AND RESPONDENT CITY OF MORGANHILL IN THE SUPREME COURT OF THE STATE OF CALIFORNIA CITY OF MORGANHILL,a municipality, Plaintiff and Respondent, V. SHANNON BUSHEY,AS REGISTRAR OF VOTERS,etc., et al., Defendants and Respondents. RIVER PARK HOSPITALITY, Real Party in Interest and Respondent MORGANHILL HOTEL COALITION, Real Party in Interest and Appellant Case No. S243042 Sixth Dist. No. H043426 Santa Clara Superior Court Case No. 16-CV-292595 After a Decision by the Court ofAppeal Sixth Appellate District, Case No. H043426 Superior Court, Santa Clara County Case No. 16-CV-292595 PLAINTIFF AND RESPONDENTCITY OF MORGANHILL’S SUPPLEMENTAL BRIEF UNDER CRC RULE 8.520(D) DONALDA.LARKIN(SBN.199759) City Attorney 17575 PEAK AVENUE MORGANHILL,CA 95037 TELEPHONE:(408) 778-3490 FACSIMILE:(408) 779-1592 donald.larkin@morganhill.ca.gov ATTORNEYSFOR PLAINTIFF AND RESPONDENTCITY OF MORGANHILL TABLE OF CONTENTS I, ARGUMENT1... ccscsesscssscssssesssesesseseseesssescsssssavsvevsesucaransusacacavsvevaces 4 A. The recently issued opinion in Save Lafayette v. City of Lafayette (2018) 20 Cal.App.5" 657, demonstrates that, when applied to residential zoning, referendum of a zoning ordinance implementing a general plan policy may impede compliance with state law. .........ccscccescsessssecesese, 4 B. Fifteen new housing laws becameeffective on January 1, 2018, which increase the needforcities to promote certainty and avoid delayin land use planning..........0...0..00.. 5 C. The Attorney General has opinedthat referendathat impedean agency’s ability to comply with state law ALE UNVALI.eeeesceccsceseecescseecscsssescscsssscessecacacececsavacsssaseeeess 8 II. CONCLUSION....cc ci cecccccsesesesssssssesescsesssscssscscavssscecaracaavavassvessseseees 9 Cases City ofMorgan Hill v. Bushey (2017) 12 Cal.App.5th 34 w..cccecessceees 5,9 deBottari v. City Council (1985) 171 Cal.App.3d 1204 o...ecscscscssscsesees 4,9 Save Lafayette v. City ofLafayette (2018) 20 Cal.App.5" 657......... 4,5,7,9 Statutes Gov. Code, section 65400(a)(2)(H) «ow.sosutatststistisitssiaieseee 6 Gov. Code, section 65913.4(a)(5)(B)......ccccccsscsssssessssessssessssssssssesseeceeeseees 6 Gov. Code, section 65913.4(a)......cccccccsccssssssssssssssstsesssecsssseesessassssessaecesessees 6 Gov. Code, section 65913.4(a)(4)(A).........cccccccsesseceecescuseesecercesenes6 Gov. Code, section 65583 ......ccccccccscssssssssessssssssesscctssssessssesseseesstsevscsesessees 7,9 Gov.Code, section 65585 0.0.00... ccccccccececccceccacucessuststsetevnercerceccs7,9 Gov. Code, section 65583(C)(1)(A) ..ceccccccsssssssssesssecesesesssssseseseasscseseressecees 7 Gov. Code, section 65863(C)(2) ..c..cccscesesssssssesssssssssssscsseseecssesesesessacssseeceesess 8 Gov. Code, section 65580 .......cccccsescesscssssssssesssssescsssssssessssssestessassessssececece. 6 Gov. Code, section 65585(j) ....escccssssssssssssscssscssssssssssescacacscscarsnsasscscerscavecsnes 7 Gov.Code, section 65400occccsscecsscecseceeecssscecssscesescascssestesesserersesececes 6 Gov. Code, Section 65862 .......ccccccscsscsscesssssssscsecssctsssssssasssssssesssessseersesseceess 7 Other Authorities Attorney General Opinion No. 17-702 (Cal. A.G. Apr. 27, 2018) cee. 8 Rules California Rule of Court 8.520(d)......ccccccccsscssessecessscescsssssessstsvecseseceeseceeees 4 California Rules of Court Rule 8.204 (C)(1) ..ccecccccsecescescseescsssssccesecseseeees 11 California Rules of Court Rule 8.520(d).....ccccccscsscsesessscsstsesessescsssssceseeee 11 The City of Morgan Hill hereby submits this supplementalbrief under California Rule of Court 8.520(d) to address new authorities, new legislation, and other matters that were notavailable at the time the City filed its brief on the merits. 1. ARGUMENT A. Therecently issued opinion in Save Lafayette v. City of Lafayette (2018) 20 Cal.App.5" 657, demonstratesthat, when applied to residential zoning, referendum of a zoning ordinance implementing a general plan policy may impede compliance with state law. On February 21, 2018, the 1“ District Court ofAppeal issued a decision in the case ofSave Lafayette v. City ofLafayette, (2018) 20 Cal.App.5" 657, reh'g denied (Mar. 15, 2018). In Lafayette, the City amended the general plan land-use designation for a 22-acre area ofland, changing the designation from “Administrative Professional Office”to “Low Density Single Family Residential.” Jd. at p. 661. “After the general plan amendment becameeffective and could no longerbe challenged,” the City adopted an ordinance changing the zoning designation from Administrative Office to a residential zoning district that allowsup to 2 units per acre. /d. Following adoption ofthe zoning ordinance, opponents of the change submitted a referendum petition challenging the zone change. Id. at p. 662. Because the referendum,if successful, would result in the zoning being inconsistent with the general plan, the city council refusedto reconsider the ordinance or place the referendum onthe ballot. Id. Rejecting deBottari v. City Council (1985) 171 Cal.App.3d 1204, and instead relying on the opinionin the instant case (City ofMorgan Hill 4 v. Bushey (2017) 12 Cal.App.5th 34), the Lafayette Court held that “the City erred in failing to present the referendum tothe voters.” Jd. at p. 669- 670. Discussing the potential implications of a referendum, the Court opinedthat: “If the ordinanceis submitted to a vote, the voters may vote to have it be enacted, causing no conflict with the general plan. Alternatively, if the voters vote against it and it must be repealed, then the city council could conceivably enact another zoning ordinancein its place that is consistent with the general plan. Appellants suggest the City couldselect another zoning option such as Low Density Residential (LR- 5).” Id. at p. 667. In other words, using the referendum process,the voters could force the City to downzoneproperties, reducing housing density. ! B. Fifteen new housing laws becameeffective on January 1, 2018, which increase the need for cities to promote certainty and avoid delayin land use planning. The Lafayette decisionis particularly concerning in light of the fifteen new housingbills, which becameeffective on January 1, 2018.2 The newlegislation was adopted in response to an unprecedented housingcrisis in California. The legislature has determinedthat “[t]he availability of housing is ofvital statewide importance, and the early attainmentofdecent housing and a suitable living environment for every Californian, including ' The Lafayette opinionstates that higher-density housing was allowed under the prior Administrative Office general plan designation. Jd. at p. 661. This does not change the fact that the referendum would further reduce the allowed housing density. ? The fifteen bills are AB 72, AB 73, AB 571, AB 678, AB 879, AB 1397, AB 1505, AB 1515, AB 1521, SB 2, SB 3, SB 35, SB 166, SB 167, and SB 540. farmworkers,is a priority of the highest order.” AB 1397 (Gov. Code,§ 65580). Oneofthe fifteen new bills, “The Housing Accountability and Affordability Act” (SB 35) amended Government Codesection 65400 to require every city to report on compliance with their general plan. The report must include extensive details, including the total number of housing units allowed and produced in each income category. Gov. Code § 65400(a)(2)(H). Ifa city fails to meet its “share of the regional housing need”for any incomecategory, a developer maybeentitled to “streamlined, ministerial approval”of a housing development. Gov. Code §§ 65913.4(a), 65913.4(a)(4)(A). Moreimportantly, “[i]n the event that objective zoning, general plan, or design review standards are mutually inconsistent, a developmentshall be deemedconsistent with the objective zoning standardspursuantto this subdivision if the developmentis consistent with the standards set forth in the general plan.” Gov. Code § 65913.4(a)(5)(B). This meansthat a referendum that maintains an inconsistency with the general plan would be ineffective, at least as to property designated for housing. Because the general plan—andnot the zoning regulations—would control development, zoning regulations intendedto preservethe historic characterofa location, provide design consistency, or otherwise maintain the character of a community wouldbeineffective. The lack of applicable development standards could have a permanent, negative impacton the vitality and character of California cities and counties. Further, even if the referendum ultimately fails, and the zoning is madeconsistent, the mere fact of a referendum may maintain the inconsistency for more than a year while the agency waits for a general election. At any time during this inconsistency, 6 a developer could take advantageofthe relaxed standards, regardless of the will of the voters. The Lafayette opinion implies that consistency problems could be resolved by processing general plan amendments and zoning changes concurrently. See Lafayette, supra at p. 669. But concurrentapprovalis not alwayspractical in the context of housing. For example, Government Code section 65583 contains extensive requirements that must go into the housing elementof a general plan. Only after the housing elementis adopted, is the housing elementofthe general plan submittedto the California Department of Housing and Community Development (HCD) for certification. Gov. Code §65585. If the housing elementis not certified the local agency mustcorrect any deficiencies. If the agency does not correct deficiencies, HCD “maynotify the Office of the Attorney General that [the agency]is in violation of state law .. .” Gov. Code, § 65585(j). Setting aside the time needed to develop zoning standards to implementthe housing elementof a generalplan, and the impracticality of doing so simultaneously with a general plan update, it would be wasteful and inefficient to adopt a zoning ordinance implementing a housing element that may or may not be approved and enforceable. By adopting Government Codesection 65862, the legislature recognized that concurrent adoption of general plan amendments and zoning ordinancesis not always practical or desirable.? > In fact, the legislature has adoptedspecific timelines for zone changesto implementthe housing element ofa general plan. See e.g. Gov. Code §65583(c)(1)(A). Further, the possibility of a referendum could prevent a local agency from meeting those deadlines. 7 If a site is not developed at the density providedin the general plan, SB 166requires the local agencyto identify new sites for housing development. Specifically, SB 166 amended Government Codesection 65863, requiring a local agency that approves development with fewer units by incomecategorythan identified for that parcelin its housing element to _ either make findings supported by substantial evidencethat remaining identified sites can absorb the additional needs, or it must “identify and make available”additional adequate sites within 180 days. Gov. Code §65863(c)(2). Referenda of zoning ordinancesto bring them into consistency with a general plan could effectively prevent compliance with these provisions by delaying or prohibiting a local agency from developing housing consistent with an approved general plan housing element. Cc. The Attorney General has opined that referenda that impedean agency’s ability to comply with state law are invalid. The Attorney General recently opined that referenda that serve to prevent local governments from complying with state law are invalid. See Attorney General Opinion No. 17-702 (Cal. A.G. Apr. 27, 2018). The Attorney General foundthat the City of Hollister’s “resolution approving the execution of an agreementto sell real property for development, pursuantto an approvedplan for disposing a dissolved redevelopment agency’s property, is not subject to referendum.” In reachingthat opinion, the Attorney Generalstated: | “That the referendum powercannot apply hereis perhaps best demonstrated by its potential consequences.If Hollister's resolution were subject to referendum, the disposition and developmentofthe property pursuant to the approved long- range plan could potentially never happen. Theelectorate 8 could indefinitely prevent the sale of the property for development(asset forth in the approved long-range plan) by rejecting every attempt by Hollister to implementthe plan. That would completely thwart the redevelopmentdissolution law's purposesto dispose of redevelopment agencies’ property expeditiously in order to fund core governmentservices. It would also conflict with the statutory requirementthat the dissolved agencies' property be disposed of as provided in a long-range property managementplan approved by a successor agency's oversight board.” A long-range property managementplanis an adoptedpolicy, approvedby the state, that ensures disposal of former redevelopment property is conducted expeditiously in accordancewith state law. Similarly, the housing elementof a general plan is an adopted policy, approvedbythestate, that is intended to ensurethatcities meet their share of the regional housing need expeditiously and in accordance withstate law. See Gov. Code §§65583, 65585. | In this case, referendum of the City’s zoning ordinance would thwart state law requiring general plan consistency. Further, while housing law is not implicated in this case, the Lafayette opinion demonstrates how the application ofMorgan Hill to allow a referendum ofresidential zoning implementing a general plan canindefinitely delay or prevent conformity, conflicting with the requirements and objectives of state housing law. II CONCLUSION For more than 30 years, deBottari has provideda bright-linerule that promotescertainty and avoids delay in land-use planning. The 6" District’s opinion in the instant case has the opposite impact. The implications ofthis case go beyond whetherhotel owners can referend a zoning changeto prevent competition. Recent developments in case law andlegislation makeclearthat the 6'" District’s holding is not only inconsistent with state law,but has the potential to prevent achievement of importantstate objectives. Dated: May 18, 2018 Respectfully Submitted, By: & 2 Donald A. Larkin Attorney for Plaintiff and Respondent CITY OF MORGANHILL 10 CERTIFICATE OF WORD COUNT Pursuant to California Rules of Court Rule 8.204 (c)(1), counsel for Petitioner City of MorganHill states that, exclusive ofthis certification, the cover, the tables, any signature block, and any attachment,this Supplemental Brief Under California Rules of Court Rule 8.520(d) contains 2,140 words, as determined by the word countof the computer program used to preparethebrief. Dated: May 18, 2018 Respectfully Submitted, Donald A. Larkin Attorney for Plaintiff and Respondent CITY OF MORGAN HILL 11 City of Morgan Hill v. Shannon Bushey, et al./Morgan Hill HotelCoalition v. River Park Hospitality, Inc. California Supreme Court Case No: $243042 Court ofAppeal Sixth Appellate District Case No: H043426 Santa Clara Superior Court Case No: 16-CV-292595 PROOF OF SERVICE I am employed in the County of Santa Clara, State of California. I am over the age of 18 and not a party to the within action; my business address is 17575 Peak Avenue, MorganHill, California 95037. On May 18, 2018, I served the following document(s) described as PLAINTIFF AND RESPONDENT CITY OF MORGANHILL’s Supplemental Brief under CRC Rule 8.520(d) on the interested parties in said action by placing a true copy thereof in an envelope addressed as follows: COUNSEL FOR APPELLANT/REAL PARTY IN INTEREST MORGANHILL HOTEL COALITION: COUNSELFOR CITY OF MORGANHILL Asit Panwala Law Office of Asit Panwala 4 Embarcadero Center, Suite 1400 San Francisco, CA 94111 Katherine Alberts Leone & Alberts 2175 N. California Blvd., Suite 900 Walnut Creek, CA 94596 COUNSEL FOR REGISTRAR OF VOTERS COUNSEL FOR IRMA TORREZ Danielle Goldstein JamesR. Williams Steve Mitra Santa Clara County Counsel Office 70 W. Hedding Street Floor 9, East Wing San Jose, CA 95110 Scott Pinsky Law Offices of Gary Baum MorganHill City Attorney's Office 17575 Peak Avenue Morgan Hill, CA 95037 COUNSEL FOR APPELLANT/REAL PARTY IN INTEREST MORGANHILL HOTEL COALITION COUNSEL FOR REALPARTYIN INTEREST AND RESPONDENTRIVER PARK HOSPITALITY,INC. Jonathan Randall Toch P.O. Box 66 MorganHill, CA 95038 Jolie Houston Thomas P. Murphy Berliner Cohen, LLP 10 Almaden Bivd. Eleventh Floor San Jose, CA 95113-2233 Sixth District Court of Appeal Santa Clara Superior Court 333 W. Santa Clara Street #1060 191 N. First Street San Jose, CA 95113 San Jose, CA 95113 I caused such envelope to be deposited in the United States mail at Morgan Hill, California. The envelope was mailed with postage thereon fully prepaid. I am readily familiar with the organization's practice of collection and processing correspondencefor mailing. It is deposited with the U.S. Postal Service on that sameday in the ordinary course of business. I am aware that service is presumedinvalid if postal cancellation date or postage meter date is more than one dayafter date of deposit for mailingin affidavit. Executed May 18, 2018, at Morgan Hill, California. I declare under penalty of perjury underthe lawsofthe State of California that the above is true and correct. lovee. Ele Kathleen Bailey