Allen v. Humboldt County Bd. of Sup'rs

• Decision Date: 07 October 1963
• Citation: 220 Cal.App.2d 877,34 Cal.Rptr. 232
• Court: California Court of Appeals Court of Appeals
• Parties: George H. ALLEN, Plaintiff and Appellant, v. HUMBOLDT COUNTY BOARD OF SUPERVISORS, Humboldt County Planning Commission, and A. G. Brisack, Defendants and Respondents. Civ. 21033.

Page 232

34 Cal.Rptr. 232

220 Cal.App.2d 877

George H. ALLEN, Plaintiff and Appellant, v. HUMBOLDT COUNTY BOARD OF SUPERVISORS, Humboldt County Planning Commission, and A. G. Brisack, Defendants and Respondents.

Civ. 21033.

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

Oct. 7, 1963.

Rader & Truitt, by Richard E. Rader, Arcata, for appellant.

Thomas M. Montgomery, County Counsel, County of Humboldt, John D. Cook Asst. County Counsel, Eureka, for respondents Humboldt County Bd. of Supervisors and Humboldt County Planning Commission.

Edward V. Marouk, Eureka, for respondent A. G. Brisack.

SULLIVAN, Justice.

George H. Allen appeals from a judgment denying his petition 'for writ of mandate or writ of review' seeking to compel respondents Humboldt County Board of Supervisors and Humboldt County Planning Commission ¹ to revoke and annul the granting to respondent A. G. Brisack of a variance from the provisions of a county zoning ordinance.

The basic facts are not in dispute. Appellant Allen is the owner and occupant of certain real property located in an area zoned as R-1A, a combination of one family residential and agricultural. Respondent Brisack owns 20 acres of land near the center of such R-1A zone and in the immediate vicinity of appellant's property. On October 4, 1961, at Brisack's request, the Planning Commission granted him a variance for the construction of a trailer park on his 20-acre tract. ² On October 24, 1961, appellant and sixty or more persons residing within the above-mentioned R-1A zone, acting pursuant to county ordinance No. 333, appealed to the Board of Supervisors, asking that the decision of the Planning Commission be overruled. ³ The Board of Supervisors denied such appeal on November 7, 1961.

A little more than four months thereafter and on March 12, 1962, appellant, on his own behalf and on behalf of more than sixty other families ⁴ owning real property in the above R-1A zone, filed the instant petition in the court below. The petition alleged in substance the foregoing background facts and further asserted that the granting of the variance was not warranted by the facts, was illegal, unjust, arbitrary, capricious, unauthorized and contrary to section 3.22 of ordinance No. 333 and was violative of sections 65800-65853 (particularly of section 65853, subds. (b)(1) and (b)(2)) of the Government Code. With his petition, appellant filed in the court below a reporter's transcript of the proceedings had at the hearing before the Planning Commission on September 27, 1961, upon which hearing the Commission based its subsequent decision of October 4, 1961, granting the variance. The prayer of the petition was for the following relief: (1) The issuance of an alternative writ of mandate or a writ of review cancelling and revoking the variance; (2) the issuance of a preliminary stay of the variance; and (3) the issuance of a preliminary injunction enjoining construction of the trailer park pending judgment on the petition. The answer of respondent Brisack, in addition to denying any invalidity in the variance, raised affirmative defenses of the statute of limitations, laches and estoppel.

After a separate trial on the affirmative defenses, the trial court found that the petition was filed more than four months after the denial of the appeal by the Board of Supervisors and concluded that, under the provisions of section 1094.5 of the Code of Civil Procedure and section 11523 of the Government Code, ⁵ the petition had to be filed within 30 days 'after the last day on which reconsideration by the agency could be ordered' and that the action was therefore barred. Judgment was rendered accordingly. This appeal followed. ⁶

Appellant contends that the Administrative Procedure Act has no application to the case before us and that under section 343 of the Code of Civil Procedure, made applicable by section 1109 of the Code of Civil Procedure, ⁷ the period prescribed for the commencement of the instant action was four years 'after the decision of the agency.' The single question, therefore, presented to us for decision is whether the instant proceeding was required to be commenced within the 30-day period prescribed by Government Code, section 11523 or within the four-year period prescribed by Code of Civil Procedure, section 343.

In raising this narrow issue before us, the parties appear to take the position that if the granting of the variance is to be judicially reviewed at all, such review must be had by administrative mandamus. (Code Civ.Proc. § 1094.5.) ⁸ Although, as we have pointed out, appellant's petition in the court below sought either a writ of mandate or a writ of review, no issue has been raised here on the granting of a writ of review and the briefs of the parties are silent on that aspect of the instant petition. Indeed the instant record discloses that the parties confined themselves in the court below to the question whether or not a writ of mandate would issue and apparently advanced no contentions relating to the issuance of a writ of review.

The county Planning Commission, in hearing and making its decision upon respondent Brisack's application for a variance, was a local board or agency exercising judicial or quasi-judicial powers under the county zoning ordinance. (Livingston Rock & Gravel Co. v. County of Los Angeles (1954) 43 Cal.2d 121, 128, 272 P.2d 4; North Side Property Owners' Ass'n. v. Hillside Memorial Park (1945) 70 Cal.App.2d 609, 616, 161 P.2d 618; Greif v. Dullea (1944) 66 Cal.App.2d 986, 1009, 153 P.2d 581; Cantrell v. Board of Supervisors (1948) 87 Cal.App.2d 471, 474-475, 197 P.2d 218; see 5 U.C.L.A.L.Rev. 179, 181-182.) Where a local board exercises quasi-judicial powers, either certiorari or mandamus is an appropriate remedy to review its action and test the proper exercise by it of the discretion with which it is invested. (Walker v. City of San Gabriel (1942) 20 Cal.2d 879, 881, 129 P.2d 349, 142 A.L.R. 1383; La Prade v. Department of Water & Power (1945) 27 Cal.2d 47, 53, 162 P.2d 13; Livingston Rock & Gravel Co. v. County of Los Angeles, supra; 3 Witkin, Cal.Procedure, p. 2485.) Such use of the writ of mandate to review administrative action invokes the remedy of 'administrative mandamus' pursuant to Code of Civil Procedure, section 1094.5 rather than the traditional action in mandamus under Code of Civil Procedure, section 1085. (Triangle Ranch, Inc. v. Union Oil Co. (1955) 135 Cal.App.2d 428, 436, 287 P.2d 537; 2 Cal.Jur.2d 324-326, 340; see 2 Stan.L.Rev. 285; 12 Stan.L.Rev. 554.) ⁹ Although the Administrative Procedure Act provides for the use of the writ of mandate to review the proceedings of certain administrative agencies specified therein (Gov.Code, § 11523), the remedy of administrative mandamus and the procedure relative to it prescribed by Code of Civil Procedure, section 1094.5 are not limited to agencies enumerated in the Administrative Procedure Act or those adopting the procedure of the act, but are applicable to any administrative agency. (Temescal Water Co. v. Department of Public Works (1955) 44 Cal.2d 90, 100-101, 280 P.2d 1.) In short, section 1094.5 is applicable to both statewide and local administrative agencies.

However, it does not necessarily follow that all agencies whose adjudicatory actions are reviewable by administrative mandamus fall within and are governed by the Administrative Procedure Act, including those provisions thereof requiring the filing of a petition for writ of mandate within the 30-day period prescribed by Government Code, section 11523. The Administrative Procedure Act applies only to those state agencies enumerated therein and does not apply to local agencies. (Gov.Code, §§ 11500, subd. (a), 11501; Hansen v. Civil Service Board (1957) 147 Cal.App.2d 732, 734, 305 P.2d 1012; Henry George School of Social Science of San Diego v. San Diego Unified School Dist. (1960) 183 Cal.App.2d 82, 85-86, 6 Cal.Rptr. 661.) Indeed the act nowhere states or even implies that it covers all state administrative agencies. (See Chas. L. Harney, Inc. v. State of California (1963) 217 A.C.A. 102, 124, fn. 16, 31 Cal.Rptr. 524.) While there is some language in Temescal Water Co. v. Department of Public Works, supra, 44 Cal.2d 90, 100-101, 280 P.2d 1, indicating that the act may be applicable as well to other agencies which have voluntarily complied with it or formally adopted it, the parties agree, and indeed so stipulated in the court below, that there was no adoption of the Administrative Procedure Act either by the Planning Commission or the Board of Supervisors. We therefore conclude that the provisions of the act do not govern the proceedings here under review and that appellant's petition for a writ of mandate was not subject to the requirement of the act that 'such petition shall be filed within 30 days after the last day on which reconsideration can be ordered.' (Gov.Code, § 11523.)

In support of its position that the 30-day period of limitation prescribed by Government Code, section 11523 is here applicable, respondents rely on Crow v. City of Lynwood (1959) 169 Cal.App.2d 461, 337 P.2d 919 and Housing Authority of City of Needles v. City Council (1962) 208 Cal.App.2d 599, 25 Cal.Rptr. 493. Crow involved a proceeding in mandamus to review the dismissal of a city employee by a city personnel board. It was there held that since the petitioner sought a writ of mandate pursuant to, and at all times proceeded in the trial court under, the provisions of the Government Code, he could not contend otherwise for the first time on appeal and was therefore bound by the 30-day period of limitation prescribed in Government Code, section 11523. Contrary to respondents' interpretation of the case, we do not think that the court in Crow announced a rule of law that section 11523 governed all local agencies. The rationale of the court seems to have been not that the statute was applicable but that ...