On February 21, 2018, in Save Lafayette v. City of Lafayette, __ Cal.5th __ (2018) (Case No. A149342), the First District Court of Appeal overturned the City of Lafayette’s decision to not place a referendum petition on the ballot to challenge a rezoning for a 44-unit single-family residential development because the referendum, if successful, would resurrect prior zoning that would be inconsistent with a recently amended general plan. (Ironically, the City has also been sued by a group that prefers a larger, 315-unit apartment project instead). According to the City, because the referendum is the power of the voters to approve or reject new laws, a successful referendum would cause the zoning to revert from “Single Family Residential” to “Administrative Professional Office,” thereby creating an inconsistency with the general plan’s residential land use designation, in violation of state law that requires zoning ordinances to be consistent with general plans.

In refusing to place the referendum on the ballot, Lafayette relied on deBottari v. City Council, an oft-cited 1985 decision that upheld the Norco City Council’s refusal to submit a certified referendum petition to the voters because the petition sought to repeal a zoning ordinance that was amended to be consistent with the general plan.

Pointing to Government Code section 65860, which prohibits enactment of a zoning ordinance that is inconsistent with the general plan, the Fourth District Court of Appeal held, in deBottari, that:

“the referendum, if successful, would enact a clearly invalid zoning ordinance. Judicial deference to the electoral process does not compel judicial apathy towards patently 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 consistency is the linchpin of California’s land use and development laws; it is the principle which infused the concept of planned growth with the force of law. We are not persuaded that this principle must now be sacrificed on the altar of an invalid referendum.”

Unfortunately for the developers in Save Lafayette, the Sixth District Court of Appeal published City of Morgan Hill v. Bushey last year during the pendency of their appeal. The Bushey case contradicts deBottari and holds that, while state law preempts local agencies from enacting new zoning that is inconsistent with the general plan, it does not preclude agencies from exercising their discretion in choosing among several possible zoning options. We wrote about that decision here, and the California Supreme Court has since granted review.

In Save Lafayette, the First District Court of Appeal relied on Bushey, which hinged on the conclusion that unlike an initiative, which enacts new law, a referendum does not enact anything; it simply maintains the status quo. The First District reasoned that Save Lafayette is not seeking to enact an invalid initiative but rather to referend the City’s amended zoning ordinance so that it does not take effect. While this may at first glance seem to be a distinction without a difference, it is a critically important issue in ballot box planning in light of California’s requirement that zoning ordinances be consistent with general plans—“the tail does not wag the dog”—and we will be anxious to see how the state Supreme Court resolves the untenable conflict.