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Posts Tagged ‘California Supreme Court’


California Supreme Court Allows Referendum Vote That Would Make Zoning Ordinance Inconsistent with General Plan for “Reasonable Time”

Thursday, August 23rd, 2018

In City of Morgan Hill v. Bushey (2018) 5 Cal.5th 1068, the California Supreme Court held that a local referendum challenging a zoning ordinance amendment in the City of Morgan Hill (a general law city) was valid even where the referendum, if adopted by the local electorate, would be inconsistent with the general plan, so long as the city has the means to make the two consistent within a “reasonable amount” of time.

Seeking the construction of a hotel, the City of Morgan Hill, amended the city’s general plan to change a parcel designation from industrial use to commercial use in 2014; the zoning ordinance remained unchanged. Subsequently, in early 2015, the city approved rezoning the parcel from “ML-Light Industrial” to “CG-General Commercial.” Local hotel owners established the Morgan Hill Hotel Coalition (Coalition) to challenge the city’s approval of the rezone by referendum. The city declined to place the referendum on the ballot concluding that it was invalid because, if adopted by the local electorate, it would result in an inconsistency between the city’s current general plan and zoning ordinance. Coalition brought suit challenging the city’s decision not to place the referendum on the ballot.

The trial court, following the holding in deBottari v. City of Norco (1985) 171 Cal.App.3d 1204 (deBottari) that a referendum that “enacts” a zoning ordinance inconsistent with the general plan is invalid, held in favor of the city. Coalition filed an appeal.

The appellate court disagreed with the holding in deBottari and reversed the trial court, holding that referendums are not per se invalid if they contradict the general plan. Citing Government Code section 65860, subsection (c), the appellate court held, where a city could adopt a new designation within a “reasonable time,” a referendum may be valid. (City of Morgan Hill v. Bushey (2017) 12 Cal.App.5th 34.) The California Supreme Court granted review.

The Court first emphasized the importance of the referendum power to alter local government policy, subject to preemption by the state legislature in only a few cases. At a local level, this power may only be preempted where there is a “definite indication” or “clear showing” that it was within the ambit of the Legislature’s purpose to restrict those rights. For instance, the Court elaborated, there is no reason to maintain the referendum power over ministerial or administrative tasks of local governments, they have no discretion. In addition, the Legislature maintains some power over local government authority to guide land use where it is an issue of “statewide concern,” for example the mandate to have a general plan.

Turning to the issue at hand, the City claimed that the referendum was invalid because it was “essentially an initiative causing the zoning ordinance and general plan to conflict.” The Court held that a referendum is not null simply because of an inconsistency with the general plan. Relying on Government Code section 65860, subdivision (a), the Court explained that such a referendum is not the final imposition where a local government “can use other means to bring consistency to the zoning ordinance and the general plan.” Here, the Court found that, if the referendum passed, the city was at liberty to change the zoning ordinance to another conforming use that was in line with the general plan. Essentially, the city was not without options.

The Court clarified that the referendum power should not be viewed as the power to repeal an ordinance or revive another, instead it provides the ability of the electorate to weigh in on a local government decision. Thus, the trial court was wrong to say the referendum would “enact” an ordinance. A referendum, rather than rewriting and establishing a specific ordinance, merely prevents a certain type of change from happening and directs the local government to take a different direction.

The Court concluded:

Given our duty to protect the referendum power, we conclude the Court of Appeal was correct to hold that a referendum can be used to challenge a zoning ordinance amendment that attempts to make the zoning ordinance consistent with an amended general plan. But it is not clear if other zoning designations were available for the property here, or whether the City has other means to comply with a successful referendum while making the zoning ordinance and the general plan consistent with one another. So we vacate the judgment of the Court of Appeal and remand the case to the Court of Appeal with directions to remand to the trial court to address these questions.

Key Point:

A referendum that results in a zoning ordinance inconsistent with the general plan may be valid so long as the local government may be able to bring them in to congruence with one another within a “reasonable time.”  In reaching its holding, the Court focused on Government Code section 65860, which applies to general law cities and certain charter cities (pursuant to subdivision (d) of the statute).  Therefore, the Court’s holding does not directly apply to charter cities that are not subject to Government Code section 65860.

California Supreme Court Holds EIRs Must Analyze Impacts to ESHA

Monday, July 24th, 2017

In Banning Ranch Conservancy v. City of Newport Beach, (2017) 2 Cal.5th 918, the California Supreme Court unanimously held that the City’s EIR prepared for the Newport Banning Ranch (NBR) project was inadequate, finding that it failed to identify potential “environmentally sensitive habit areas” (ESHAs) under the California Coastal Act (“Act”) and analyze the project’s impacts to those areas.

The Banning Ranch site is an undeveloped, 400-acre plot of land containing oil field facilities and wildlife habitat. The project site, located in the City’s “sphere of influence,” falls in the “coastal zone” under the Act. NBR proposed to develop the site with up to 1,375 residential units, 75,000 square feet of retail, and 75 hotel rooms.

After the City announced in its notice of preparation that the project site included areas that might be defined as ESHAs, numerous public comments were submitted urging the City to discuss potential ESHAs in the EIR. The City refused to do so, contending that it had no legal authority to determine if the areas were ESHA, despite the fact that it knew that the California Coastal Commission (“Commission”) staff had preliminarily determined that the project site contained ESHAs.

In July 2012, the City certified the FEIR and approved the NBR project master plan. Subsequently, Banning Ranch Conservancy (BRC) challenged the project approval, raising two issues. First, BRC claimed that the EIR failed to identify areas that might qualify as ESHAs and account for those areas in its analysis of project alternatives and mitigation measures. Second, BRC contended that the City violated its obligation under the general plan to work with the Commission to identify wetlands and habitats to be protected from development.

The trial court rejected BRC’s CEQA claim, but found that the City had not complied with their general plan obligations. The Fourth Appellate District affirmed on the CEQA issue, but reversed on the trial court’s general plan findings because the general plan did not require the City to work with the Commission before project approval.

Reversing the Fourth Appellate District’s holding related to BRC’s CEQA claim, the Supreme Court held that CEQA requires an EIR to identify areas that might qualify as ESHAs. Further, rejecting the City’s argument that CEQA imposes no duty to consider the Act’s ESHA requirements, the Court noted that the lead agency should integrate CEQA review with its project approval process. In addition, the Court held that an EIR must lay out any competing views put forward by the lead agency and other interested agencies. Finally, the Court held that it did not need to address the general plan issue because BRC was found to be entitled to relief on its CEQA claims.

Key Point:

The lead agency must identify a potential ESHA through consultation and discuss their ramifications for mitigation measures and project alternatives in the EIR when there is credible evidence that an ESHA might be present on the project site. The Court provided that whether an EIR has omitted “essential information” is a procedural question subject to de novo review, without clarifying exactly what is deemed “essential information” required to be analyzed under CEQA. Thus, the Court’s holding in this case raises a question of whether an EIR must address other similar statutory schemes relevant to the project, such as the California Fish and Game Code, the California and federal Endangered Species Acts, the federal Clean Water Act, and other statutory requirements administered by the responsible, trustee, or interested agency.