Residents can challenge zoning ordinance via referendum, state high court rules

The state Supreme Court on Thursday upheld the authority of county residents to challenge general land use plans through a direct vote and sent the case back to Santa Clara County Superior Court.

Zoning ordinances approved by a local jurisdiction can be invalidated through a referendum, at least in instances in which there are other means to make it consistent with the general plan, the court ruled in a case involving the city of Morgan Hill.

"Even if other zoning designations for the property are not currently available, I see no obvious impediment to the city simply amending the zoning ordinance to achieve the necessary consistency," wrote state Supreme Court Justice Ming Chin in a concurring opinion. "Alternatively, the city could amend the general plan to make it once again consistent with the zoning ordinance."

The Morgan Hill City Council voted to amend its general plan to rezone a vacant lot from industrial to commercial use in 2014.

After the city council approved the zoning ordinance, the Morgan Hill Hotel Coalition sponsored a referendum to prevent the reclassification. But the effort to get the issue to a vote was discontinued because it "would enact zoning that was inconsistent with" the city's general plan, wrote Justice Mariano-Florentino Cuéllar for the court.

State law requires cities and counties to develop general land use plans, with which zoning ordinances are required to comply.

A trial judge ordered the referendum removed from the ballot.

But a 6th District Court of Appeal panel held that "a referendum rejecting the zoning change was acceptable because the city could adopt another zoning designation that would be consistent with the general plan within a reasonable time," according to the state Supreme Court opinion. City of Morgan Hill v. Bushey, 2018 DJDAR 8455 (Cal., filed Aug. 23, 2018).

"A referendum is not impermissible -- and its result is not null -- simply because, if approved by the voters, it forces some change to a local government action taken to align zoning with the general plan currently in force," Cuéllar wrote.