Adler v. City Council of City of Culver City

• Citation: 184 Cal.App.2d 763,7 Cal.Rptr. 805
• Decision Date: 22 September 1960
• Docket Number: No. 24514,24514
• Parties: Florence ADLER, Merie Linthacum, Lee Simpson, Plaintiffs and Appellants, v. CITY COUNCIL OF the CITY OF CULVER CITY, City of Culver City, a Municipal Corporation, Defendants and Respondents.
• Court: California Court of Appeals

Page 805

7 Cal.Rptr. 805

184 Cal.App.2d 763

Florence ADLER, Merie Linthacum, Lee Simpson, Plaintiffs and Appellants, v. CITY COUNCIL OF the CITY OF CULVER CITY, City of Culver City, a Municipal Corporation, Defendants and Respondents.

No. 24514.

District Court of Appeal, Second District, Division 2, California.

Sept. 22, 1960.

As Modified Oct. 7, 1960.

Hearing Denied Nov. 16, 1960.

Phill Silver, Hollywood, for appellants.

M. Tellefson, City Atty., Culver City, for respondents.

ASHBURN, Justice.

This is a taxpayers' action for a declaratory judgment invalidating an ordinance rezoning a certain parcel of realty (9.56 acres) owned by one Blanco, and for an injunction against enforcement of said ordinance. From an adverse judgment plaintiffs appeal.

Appellants have made no charge of fraud, collusion, lack of bona fides or failure on the part on the City Council to perform any duties specially enjoined upon it nor do they challenge the wisdom of the zoning change which was actually made by the council. No attack is made upon the findings of fact. Their attack rests wholly upon legal propositions,--violation of the Brown Act (infra) by the city's Planning Commission, invalidity of § 16.101 of the basic zoning ordinance of respondent city and invalidity of that basis ordinance as a whole.

Culver City operates under a home rule charter (Stats.1947, p. 3386; amended by Stats.1951, p. 4258 and Stats. Ex.Sess. of 1952, p. 586), which creates a city council of five members and a planning commission consisting of nine members, the functions of which commission are advisory with respect to zoning. A basic zoning ordinance, No. CS-147, was adopted in 1952 providing (§ 16.08) that an application for a variance or change of zone shall be considered at a public hearing after notice mailed to owners of property within a radius of 300 feet of the exterior boundaries of the property involved in the application and, where change of zone is sought, after additional notices have been posted at prescribed intervals around the property. After public hearing the commission transmits to the city council 'its recommendations together with the complete record of the case,' the council holds a final hearing thereon and '[t]he recommendation of the Planning Commission shall be approved unless reversed by the City Council' (§ 16.101), which quoted phrase means reversal by a majority, three members, of the council (Charter § 510). In the present instance it was stipulated that public hearings were held by the planning commission on July 30, 1958 and August 20, 1958, and by the city council on October 6, 1958, all pursuant to public notices required by the basic zoning ordinance No. CS-147. The court found upon ample evidence that all persons interested in the matter, including the plaintiffs, were given an opportunity to be heard and were heard at the planning commission meetings and at the one held by the city council.

The recommendation of the commission as adopted on September 3, 1958, and transmitted to the council, imposed fourteen paragraphs of conditions upon the granting of the Blanco application (filed June 17, 1958). The city council after its hearing of October 6, 1958 adopted a resolution (No. CS-3906) and an ordiance (No. CS-346) approving with modifications the application of Blanco and reclassifying the property in zone C-3a (retail shopping center). The resolution recites that: '[I]t appears that certain of the recommendations of the Planning Commission are not necessary for the protection of the adjacent property owners, are unfair to applicant, are not within the purview of proper zoning regulations and are of questionable legality;' and specifically finds: 'That the recommendations of the Planning Commission, having been given careful consideration, appear to go beyond what is reasonably necessary to protect the public and adjacent property owners in reclassifying said property for the use proposed by applicant, unnecessarily penalize said applicant in the use of said property, and include in the proposed precise plans the area abutting Jefferson Boulevard already classified Zone C-3 and not before the Commission in connection with the application under consideration.' The resolution and ordinance depart substantially from the conditions suggested by the commission and impose a long list created by the council.

Appellants' major contention is that all of these proceedings are void because infected by a violation of the 'Secret Meeting Law' or Brown Act (now §§ 54950-54958 Govt. Code) which was enacted in 1953 and provides, in § 54953: 'All meetings of the legislative body of a local agency shall be open and public, and all persons shall be permitted to attend any meeting of the legislative body of a local agency, except as otherwise provided in this chapter.' Section 54952 includes within the term 'legislative body' the 'governing board, commission, directors or body of a local agency, or any board or commission thereof.'

The application of Blanco for a zoning change was not filed until June 17, 1958. On June 13, four days earlier, the members of the planning commission (except one) attended a dinner at the Beverly Hills Club, in Beverly Hills, which was given by Blanco pursuant to arrangement made between him and Harry C. Bond, the city's Planning Director. One of the members present referred to it at the trial as a 'fact-finding meeting' which seems to be an apt description. The trial court found upon adequate evidence that 'dinner was served and general discussions were had relative to community planning and zoning, at which time the said R. J. Blanco was interrogated by members of the Planning Commission covering the following matters, and gave answers thereto: (A) His conception of the shopping center he porposed to construct if the zone change were approved; (B) The kind of tenants he hoped to attract; (C) The volume of business he anticipated; and (D) His plans for parking ratio.

'That said dinner meeting was informally carried on in the nature of a social gathering and that no action, commitments or promises, or suggestions of actions, commitments or promises were made to said R. J. Blanco with respect to the re-zoning of the property owned by him and described in his application for re-zoning subsequently filed, nor was said proposed re-zoning or application for re-zoning deliberated upon by said Commission members at said meeting.'

The members of the commission had been advised by the city attorney that the Act does not apply to charter cities. There is considerable basis for such a conclusion ¹ but we do not find solution of that question necessary in this case.

Viewing the evidence most favorable to respondent as we must (Primm v. Primm, 46 Cal.2d 690, 694, 299 P.2d 231; New V. New, 148 Cal.App.2d 372, 383, 306 P.2d 987), the following situation emerges. As there was then no application for change of zoning before the planning commission the discussion at the dinner necessarily was general. No one presided over the exchange of views and the persons present at times split into small groups and talked among themselves. One commissioner suggested a Scottsdale motif, another Disneyland and another Farmers Market. One member asked Blanco if he had considered high-rise apartments. Commissioner Dekker asked about building a service tunnel. Blanco talked principally about establishing a shopping center. He was asked about the parking ratio he anticipated, whether there would be a central theme or a random theme of development, what type of structures would be built and what sort of tenants obtained; he mentioned a drug store, junior department store, restaurant, and said certain streets should be widended and that he would dedicate some land for that purpose. Asked whether he would seek professional help in planning, he replied in the affirmative. No specific plan was presented or discussed, no vote taken upon any proposal, no decision made singly or collectively.

As above shown, two public hearings were held by the commission upon the application after its filing, plaintiffs were present and presented their views, as did many others who spoke for and against the application; the commission, when formally acting upon it, imposed conditions so onerous that the city council, after conducting its public hearing at which plaintiffs and others were heard, found that some of those conditions were unfair to applicant and would unnecessarily penalize him in the use of his property, rejected the commission's proposed conditions in large part and imposed others of its own. Thus it manifestly appears that the dinner gathering of June 13th could have had little if any influence upon the formal action of the commission and none upon the city council.

The resolution authorizing the ordinance recites the fact of consideration of 'the evidence and testimony presented, including the Report of the Planning Director and the recommendations of the Planning Commission and personal knowledge of members of the Council of the property involved.' Obviously, legislative bodies are not limited to the taking of evidence or to other formalities in arriving at their conclusions upon contemplated legislation. Section 16.07 of the basic zoning ordinance (CS-147) of respondent city, provides: 'The Planning Commission shall cause to be made by its own members, or members of its staff, such investigation of facts bearing upon such application as will serve to provide all necessary information to assure that the action on each such application is consistent with the intent and purpose of this ordinance and with previous amendments, variances or modifications.'

In Minney v. City of Azusa, 164 Cal.App.2d 12, 34, 330 P.2d 255, 267, it is said: 'The commission was required to make a factual investigation before the hearing and presumptively did so. As the decision had to be reached in the light of the comprehensive zoning plan...