SAN JOSE – The opposing views of a city government lawyer and non-profit attorney on a public referendum is headed to the California Supreme Court.

The California Sixth District Court of Appeal's May 30 initial ruling that rejected city of Morgan Hill attorney Donald Larkin’s argument that a proposed referendum by the Morgan Hill Hotel Coalition, represented by counselor Asit Panwala, to block re-designation of a vacant lot would be inconsistent with city’s general use plan, has moved to the state supreme court. 

The action came after a March 2016 California Superior Court decision in favor of the city blocking the referendum that ultimately failed with Patwala’s appeal overturning the superior court's ruling.

“The Hotel Coalition said they want to preserve the property owned by River Park as industrial land,” Larkin told the Northern California Record.

“The city of Morgan Hill and Mr. Larkin kept insisting that the referendum prevents them from enacting consistent zoning, but this is false,” Patawala told the Northern California Record. “If the voters fail to approve of the city's choice of zoning, they could easily choose another commercial zoning district that does not allow for hotel use, and would be consistent with the general plan.”

However, Larkin counters that preserving the land as industrial would require a general plan amendment because the plan was amended to designate the land for commercial use. “The voters could amend the general plan by initiative if there was public support,” Larkin added. After the initial May decision, both attorneys spoke to the Northern Calfornia Record, with Patwala and Larkin disagreeing then as much as now.

“None of these options are a replacement for our constitutional right to exercise the power of referendum, Patwala said. "The right to initiative is a separate right, and by no means the only way the voters can express their will. We have made public comments which the city has ignored.” Patwala  added that Morgan Hill has ignored the desire of more than 2,500 registered voters who signed a petition for a referendum.

“In fact, we have urged them to adopt 'office/administrative' before any litigation began," he said. "That zoning would be consistent with the general plan as amended” 

Patwala said the city is unwilling to abide by the separation of powers doctrine and allow the voters to check city power, Patwala questions how it is in the city’s best interest to spend nearly $100,000 of tax funds “to ensure that the tax payers are unable to vote.”

“Mr. Larkin and the city do not respect the voters' constitutional rights," Patwala said. "The presiding justice during argument reminded the city's attorney that only way to change the constitution is by constitutional amendment, and their unanimous opinion rebuked the city,” 

Larkin said the general plan is recognized by California courts as the “constitution” for land-use planning, and cities are required to adopt zoning provisions that conform to the general plan.

“If the Hotel Coalition’s referendum is successful, and the zoning ordinance is defeated, it would not change the general plan designation, so the city would need to rezone the property to a different commercial designation," he said. "A zoning designation that does not conform to the general plan designation is illegal. An initiative is the only way for the Hotel Coalition to achieve its stated goals.” 

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