Discharging its “duty to protect the referendum power,” the Supreme Court today holds that local voters can overturn a zoning ordinance amendment, even if the local government passed the amendment to have the ordinance comply with a change to the local general plan (compliance that is required by state statute) and even if, by approving the referendum, the voters temporarily leave in place a zoning ordinance that does not comply with the general plan. The court’s unanimous opinion by Justice Mariano-Florentino Cuéllar in City of Morgan Hill v. Bushey concludes that the only constraint on such a referendum is that the local government must have “other means available to make the zoning ordinance and general plan consistent.”
The court mostly affirms the Sixth District Court of Appeal, but it vacates the appellate court’s judgment so that the case can return to the superior court for a determination “whether the city can use other available zoning designations for the disputed property that would be consistent with the general plan and a successful referendum.”
All seven justices sign the court’s opinion, but Justice Ming Chin writes a separate concurrence, which is joined by Chief Justice Tani Cantil-Sakauye. He says it’s a “close question” whether a remand to the superior court is necessary because “[i]t certainly appears the City . . . has the means to make the zoning ordinance and general plan consistent with one another if the referendum succeeds.”
The Supreme Court disapproves a 1994 opinion by the Fourth District, Division Three, and a 1985 opinion by the Fourth District, Division Two.
