Mountain View Chamber of Commerce v. City of Mountain View

• Citation: 77 Cal.App.3d 82,143 Cal.Rptr. 441
• Parties: MOUNTAIN VIEW CHAMBER OF COMMERCE et al., Plaintiffs and Appellants, v. The CITY OF MOUNTAIN VIEW, a Municipal Corporation, Defendant and Respondent. Civ. 39724.
• Decision Date: 25 January 1978
• Court: California Court of Appeals Court of Appeals

Page 441

143 Cal.Rptr. 441

77 Cal.App.3d 82

MOUNTAIN VIEW CHAMBER OF COMMERCE et al., Plaintiffs and Appellants, v. The CITY OF MOUNTAIN VIEW, a Municipal Corporation, Defendant and Respondent.

Civ. 39724.

Court of Appeal, First District, Division 1, California.

Jan. 25, 1978.

As Modified Feb. 2, 1978.

Gazzera, Antonioli & Bain, William A. Antonioli, Mountain View, for plaintiffs and appellants.

Robert J. Wheeler, City Atty., City of Mountain View, Mountain View, for defendant and respondent.

KELLY, ^* Associate Justice.

The plaintiffs-appellants are the Mountain View Chamber of Commerce, a nonprofit corporation, four individual sign owners in the City of Mountain View, and one corporate sign owner, a restaurant in the City of Mountain View.

The appellants initially filed a complaint which contained six causes of action to enjoin the enforcement of the respondent City of Mountain View's sign regulations and sought declaratory relief claiming that said sign regulations are unconstitutional and unenforceable as applied to zoning districts in which the individual appellants had located their businesses. A temporary restraining order was issued prohibiting the city from enforcing section 36.29 of the Municipal Code with reference to the removal of nonconforming signs.

After a hearing on the preliminary injunction, the court denied the injunction, sustaining the city's demurrer without leave to amend on the ground that the appellants failed to exhaust their administrative remedies. Therefore the court ruled it was without jurisdiction. ¹

As of 1966, the city had adopted a set of comprehensive sign regulations by an amendment to its zoning ordinance. The regulations are coordinated to the permissible activities within each zoning district. At the time these sign regulations were adopted, some of the existing signs within the city did not conform. Section 36.29.2(c) of the Municipal Code regulating zoning provided for an amortization period of some 91/2 years (until July 1, 1975) within which period the owners of nonconforming signs had an opportunity to remove them.

As of June 30, 1975, the city council passed municipal Ordinance 21.75, amending section 36.29.2(c) to provide as follows:

"All signs, billboards, or commercial advertising structures which do not conform to the requirements of this chapter may be continued until July 1, 1975, or five (5) years from the date it becomes nonconforming, whichever is later, at which time such nonconforming signs shall be modified to conform to the requirements of this chapter or shall be removed. All signs, billboards, or commercial advertising structures in a Planned Community (P) District which do not conform to the provisions of the Precise Plan applicable thereto shall be removed or modified to conform to the provisions of such Precise Plan by the date, if any, specified in such Plan or five (5) years from the date such sign, billboard or commercial advertising structure became nonconforming, whichever is later. Any modification of the standards applicable to a sign, either by ordinance change, or by imposition or amendment of the sign standards in a precise plan, shall not be construed as extending the amortization period of any sign which was nonconforming prior to such modification. Any sign, billboard or commercial advertising structure not removed or brought into conformity with the requirements of this chapter, or any applicable precise plan, by the date specified above, is hereby declared to be a public nuisance and may be abated by the City Attorney or other appropriate city official." (Emphasis added.) Any violation of the zoning ordinance would also subject a party to a maximum fine of $500 or imprisonment for a maximum of six months or both.

As of July 1, 1975, property owners with nonconforming signs were notified by the city building department to bring all nonconforming signs into conformity and with respect to those signs not conforming, said department was in the position of enforcing the ordinance, except when the temporary restraining order was in effect.

The city zoning ordinance permits property owners or their agents to apply for a variance. Section 36.44 provides in part: "Variances. Where practical difficulties, unnecessary hardships and results inconsistent with the general purposes of this chapter may result from the strict application of certain provisions thereof, variance may be granted as provided in this section. This section may not be used to allow a use that is not in conformity with the uses specified by this chapter for the district in which the land is located.

"Application. The owner or his agent may make application for variance which shall be made on a form prescribed by the zoning administrator. . . ."

Criteria to consider in an application for a variance are, in pertinent part, as follows:

"(1) That there are exceptional or extraordinary circumstances or conditions applying to the land, building or use . . ., which circumstances or conditions do not apply generally to land, buildings, or uses in the same district.

"(2) That the granting of the application is necessary for the preservation and enjoyment of substantial property rights of the petitioner.

"(3) That the granting of such application will not, under the circumstances of the particular case, be outweighed by the adverse effects to the health or safety of persons residing or working in the neighborhood of the property of the applicant, and will not, under the circumstances of the particular case, be materially detrimental to the public welfare or injurious to property or improvements in said neighborhood." (Mountain View Municipal Code, § 36.44(d).) The criteria set out above in the ordinance are taken from state law. ²

Applicants for a variance are entitled to a public hearing before the zoning administrator and may appeal an adverse ruling to the city council. The appeal provisions are stated in the footnote below. ³

It is conceded by all parties that none of the appellants availed themselves of the variance procedure prior to filing the action below. The issue before the court is: Did the failure of appellants to exhaust their administrative remedies deprive the trial court of jurisdiction to hear the case?

It is fundamental California law that before one is entitled to judicial review or relief, he must exhaust whatever administrative remedies are provided. In the language of Morton v. Superior Court (1970) 9 Cal.App.3d 977, 981, 88 Cal.Rptr. 533, 535: "it is settled that the exhaustion of an administrative remedy, where one is available, is a condition precedent to obtaining judicial relief, and that 'a court violating the rule acts in excess of jurisdiction' (citations)."

Similarly, in Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 292-293, 109 P.2d 942, 949, the Supreme Court stated: "(W)here an administrative remedy is provided by statute, relief must be sought from the administrative body and this remedy exhausted before the courts will act. . . . (P) The rule itself is settled with scarcely any conflict. It is not a matter of judicial discretion, but is a fundamental rule of procedure laid down by courts of last resort, followed under the doctrine of stare decisis, and binding upon all courts. . . . Bearing in mind the analysis of jurisdiction which has heretofore been made, and examining the authorities dealing with the rule, we are necessarily led to the conclusion that exhaustion of the administrative remedy is a jurisdictional prerequisite to resort to the courts."

The appellants contend that the exhaustion of administrative remedies doctrine does not apply to their case because of recognized exceptions to that doctrine as set out in judicial decisions. These recognized exceptions are as follows: (1) irreparable injury will result if judicial relief is denied; (2) it is futile to seek administrative relief; (3) constitutional issues are raised; and (4) public rights are involved.

In Abelleira, the California Employment Commission had ordered unemployment benefits to be paid the unemployed employees of the Matson Navigation Company. The employers appealed the ruling to the District Court of Appeal, who directed the commission to withhold the payment of the unemployment benefits to the employees, agreeing with the employers' contention that irreparable injury would be suffered if the payments were charged to the employer company's reserve accounts until the matter could be resolved on appeal. The Supreme Court could find no irreparable injury and issued a writ of prohibition restraining the District Court of Appeal from enforcing its decision.

Abelleira is recognized as authority for the proposition that exhaustion of administrative remedies is not required when, in a particular factual situation, irreparable injury will result if the administrative remedy were first required to be exhausted before seeking judicial relief. And in that regard the court referred to case law concerning confiscatory rate orders of state administrative agencies, stating: "Continued operation of the business at the rate imposed pending the appeal may in some instances be so unprofitable as to amount to a destruction of the business, and therefore a taking of property without due process of law. The courts in these cases issue injunctions to stay the enforcement of the new rate until a final determination of its validity, in order to protect the constitutional rights of the petitioning utilities. In brief, these decisions establish the right to equitable relief to protect the property rights of a petitioner from irreparable injury immediately threatened by a void administrative act. The soundness of this proposition cannot be questioned, but it has no relevancy here." (17 Cal.2d at pp. 296-297, 109 P.2d at p. 951; emphasis added.)

Other types of irreparable injury have been recognized by court decision as exceptions to the doctrine of...