200 Cal. 505, S. F. 12160, Dwyer v. City Council of City of Berkeley

Docket Nº:S. F. 12160
Citation:200 Cal. 505, 253 P. 932
Opinion Judge:SEAWELL, Judge
Party Name:ANTHONY A. DWYER, Petitioner, v. CITY COUNCIL OF THE CITY OF BERKELEY et al., Respondents
Attorney:J. E. Pemberton and Albert M. Hardie for Petitioner. Earl J. Sinclair, City Attorney, and Calkins, Hagar, Hall & Linforth for Respondents.
Judge Panel:JUDGES: In Bank. Seawell, J. Shenk, J., Waste, C. J., Curtis, J., Preston, J., Langdon, J., and Richards, J., concurred.
Case Date:February 23, 1927
Court:Supreme Court of California
 
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Page 505

200 Cal. 505

253 P. 932

ANTHONY A. DWYER, Petitioner,

v.

CITY COUNCIL OF THE CITY OF BERKELEY et al., Respondents

S. F. No. 12160

Supreme Court of California

February 23, 1927

Page 506

APPLICATION for a Writ of Mandate to compel the City Council of Berkeley to repeal or submit to referendum an ordinance amending the zoning ordinance of that city by reclassifying property.

Writ granted.

COUNSEL:

J. E. Pemberton and Albert M. Hardie for Petitioner.

Earl J. Sinclair, City Attorney, and Calkins, Hagar, Hall & Linforth for Respondents.

JUDGES: In Bank. Seawell, J. Shenk, J., Waste, C. J., Curtis, J., Preston, J., Langdon, J., and Richards, J., concurred.

OPINION

SEAWELL, Judge

Page 507

[253 P. 933] Petition for writ of mandate to compel the City Council of the City of Berkeley to either repeal or submit to a referendum vote of the people an ordinance passed by said City Council reclassifying as a business and public use district of class IV certain property designated in the comprehensive zoning ordinance of said city as a residence district of class I, wherein only dwellings, flats, clubs, churches, railroad shelter stations, apartment houses without stores, and hotels without stores are permitted. It appears from a stipulation as to facts entered into by the parties, and from the petition for the writ and return to the alternative writ, that petitioner is a resident, taxpayer, and elector of the City of Berkeley who owns and resides upon property in the vicinity of the property described in the ordinance of reclassification, and who is also one of the signers of the petition by which the referendum is sought to be invoked. The City Council of Berkeley, the mayor, the respective members of said Council, and the city clerk are named as

Page 508

respondents. The area reclassified comprises approximately a one five hundred and fiftieth (1/550) part of the city and is owned by the University of California, which, it is alleged, desires and intends to conduct a poultry farm and experiment station on said land, which project contemplates the raising of chickens on a large scale in connection with its courses in poultry husbandry. The intention of raising chickens on a large scale on said lands is denied, but it is admitted that it is the purpose of said university to use a portion of said land as "an experiment station in connection with instruction in poultry husbandry." It is alleged in the return to the alternative writ that the property is bounded on the west by a district classified in the general zoning law as an industrial district of class VI, in which factories not obnoxious, warehouses, including any business use, stables, feed and fuel yards, aviation fields and residences of any kind included in class I are permitted; on the north by a district of class IV, in which schools, public and semi-public buildings, playgrounds, green-houses, nurseries, and residences of any kind included in class I may locate, and on the east and south by a district classified as a residence district of class I.

The general comprehensive zoning ordinance of the City of Berkeley was adopted by the City Council on June 1, 1920, and is designated Ordinance No. 666, N. S. Ordinance No. 1190, N. S., which is under consideration in the instant case, was passed by said City Council on May 25, 1926, as an amendment to the general zoning ordinance, after proceedings for amendment had been duly and regularly taken in accordance with the provisions of Ordinance No. 1130, N. S., which is also an amendment to Ordinance No. 666, N. S., and provides the procedure to be followed in reclassifying property pursuant to Ordinance No. 666, N. S. Within thirty days after the passage of said Ordinance No. 1190, N. S., Albert M. Hardie, one of the attorneys for petitioner, pursuant to the referendum provisions of the Berkeley charter, appeared at the office of the city clerk for the purpose of filing a referendum petition and requested said city clerk to compare, examine, and verify the signatures and certify to the sufficiency of the petition. The city clerk refused to accept, receive, or file the same. Thereafter

Page 509

said Hardie appeared before the Council in regular session assembled as the representative of petitioner and others. A resolution was passed at said meeting wherein it was recited that the Council refused to accept the petition for the reason that it had been advised by its legal adviser, the city attorney, that said Ordinance No. 1190, N. S., was not a proper subject for referendum. The point that the petition was not duly presented will be considered hereafter.

It is the contention of respondents that an ordinance such as No. 1190, N. S., which amended the general zoning law, is neither within the initiative and referendum provisions of the state constitution, nor the statutes of the state, nor the provisions of the charter of the City of Berkeley.

The City of Berkeley operates under a freeholder's charter which went into effect July 1, 1909 (Stats. 1909, p. 1208), and was adopted [253 P. 934] in pursuance of the provisions of article XI, section 8, of the state constitution. The provisions of said charter relating to the initiative and referendum are articles XIII and XIV. Section 92 (art. XIII) pertaining to the initiative power is as follows:

" Direct legislation.

" Sec. 92. (1) Any proposed ordinance may be submitted to the Council by a petition signed by registered electors of the City equal in number to the percentage hereinafter required." (Italics supplied.)

The subsequent sections provide that if the petition accompanying the proposed ordinance is signed by electors equal in number to fifteen per centum of the entire vote cast for all candidates for mayor at the last preceding general municipal election at which a mayor was elected, the Council shall pass the ordinance without alteration within twenty days after the attachment of the clerk's certificate of sufficiency to the petition, or call a special initiative election within twenty-five days. If electors equal in number to at least five per centum, but less than fifteen per centum, have signed the petition the ordinance is to be passed by the Council or submitted to a vote of the people at the next general election, rather than at a special election. The referendum provision (art. XIV, sec. 93), as amended in 1923 (Stats. 1923, p. 1548), is as follows:

Page 510

" Mode of protesting against ordinances.

" Sec. 93. No ordinance passed by the Council shall go into effect before thirty days from the time of its final passage, except when otherwise required by the general laws of the State or by the provisions of this Charter respecting street improvements, and except the ordinance making the annual tax levy, and except an ordinance for the immediate...

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