Two years ago, Asit Panwala of the Law Office of Asit Panwala and Randy Toch of the Law Office of J. Randall Toch argued in Santa Clara County Superior Court that voters have the right to exercise the power of referendum even if by rejecting the ordinance, they kept inconsistent zoning in place.


The state’s consistency requirement requires cities to amend zoning to be consistent with the general plan.  The inconsistency was created when the City of Morgan Hill amended the general plan for a three-acre parcel from industrial to commercial in order to facilitate the building of a hotel by an out-of-town developer, but left the zoning behind as “light industrial.”  The City then sought to remedy the inconsistency it created by amending the zoning to “general commercial.”  More than 2500 registered voters signed a petition for referendum challenging the ordinance, but the City refused to have a referendum.   It later acquiesced and placed it on the ballot, and then filed an action to remove it.

We argued that voters do have the right to accept or reject the ordinance because there are eleven other commercial zoning districts that the City could chose if the City’s choice is rejected.  The City argued that the zoning had become invalid and the question was a simple one-a choice between zoning that is invalid and one that is valid, and hence no choice at all.  They argued that for over thirty years that Debottari was the law of the land and controlling on this issue.  They shook their heads in disbelief at our arguments.

Although the trial court ruled for the City, the Sixth District Court of Appeal agreed with us in City of Morgan Hill v. Bushey (2017) 12 Cal.App.5th 34,  expanding the right to referendum even when zoning would remain inconsistent as a result.

Last week, the First District Court of Appeal grappled with the same issue in Save Lafayette v. City of Lafayette, and agreed with the Sixth District and us.  We congratulate Gary Garfinkel for persuading the Court that voters do have the right to referendum and that ignoring the Constitution would imperil democracy.  See Save Lafayette’s decision below.  Save Lafayette v. City of Lafayette, A149342 – Feb 21 2018