Bayless v. Limber

• Decision Date: 27 June 1972
• Citation: 26 Cal.App.3d 463,102 Cal.Rptr. 647
• Court: California Court of Appeals Court of Appeals
• Parties: Leonard BAYLESS et al., Petitioners, v. Frank R. LIMBER, City Clerk of Whittier, et al., Respondents. Civ. 40127.

Page 647

102 Cal.Rptr. 647

26 Cal.App.3d 463

Leonard BAYLESS et al., Petitioners, v. Frank R. LIMBER, City Clerk of Whittier, et al., Respondents.

Civ. 40127.

Court of Appeal, Second District, Division 3, California.

June 27, 1972.

Hearing Denied Sept. 7, 1972.

John C. Hamilton for petitioners.

Robert Flandrick, City Atty. (Whittier), Martin & Flandrick, Special Counsel, Robert Flandrick and Jack L. White, San Marino, for respondents.

William M. Wilcoxen, Laguna Beach, as amicus curiae on behalf of petitioners.

Blair & Raydon, Los Angeles, as amici curiae on behalf of respondents.

COBEY, Associate Justice.

Leonard Bayless and Florentin J. Pearne, citizens electors and residential property owners in the City of Whittier, have petitioned this court for a writ of mandate directing the city council and the city clerk to process an initiative petition, proposed by petitioners and others, to amend the Whittier Municipal Code to prohibit oil well drilling within that portion of the city zoned residential.

The threshold question presented by the petition for a writ of mandate is whether in this case the remedy by appeal which initially was available to petitioners, was not 'a plain, speedy and adequate remedy in the ordinary course of law.' (See Code Civ.Proc. § 1086; Careaga v. Fernald, 66 Cal. 351, 353, 5 P. 615.) Petitioners and others applied for identical extraordinary relief to the superior Court in the case entitled 'Prod v. Whittier City Council (No. C 18359).' That court denied such relief on the merits about four months ago. No appeal was taken from this denial and the judgment of denial is therefore final. ¹ The next general municipal election within the City of Whittier will not occur until April 1974--over 21 months hence. In view of the fact that the fundamental question involved in this case is entirely one of law, there can be little doubt but that the appellate remedy would be completed by petitioners long prior to this forthcoming election.

Nevertheless, whether an appeal from the averse judgment of the superior Court in the Prod case would be an adequate remedy for petitioners depends on equitable considerations and is a question committed to our discretion. ² (See Bruce v. Gregory, 65 Cal.2d 666, 671, 56 Cal.Rptr. 265, 423 P.2d 193.) What is involved in this proceeding is a fundamental change in a policy of many years standing of the City of Whittier. From 1957 to almost 1971 the only oil well drilling permitted within the city was at four specified drilling sites. By ordinance, effective December 24, 1970, oil well drilling was placed on an unclassified permit basis for the production of oil, etc. and on a conditional use permit basis for exploratory core hole drilling. Subsequently the City Council granted the American Petrofina Exploration Company an unclassified use permit to drill up to 24 oil wells at a site zoned one family residential and entirely surrounded by property zoned residential. It is quite obvious that in the many months required to process an appeal in the superior court case, considerable oil well drilling probably would occur on residential property within the City of Whittier and some property within the immediate vicinity of such drilling might well be adversely affected. Furthermore, it is in the interest of the people of Whittier that the courts determine as promptly as possible the basic legal question raised by the petition before us as to how this zoning controversy may be resolved. Finally, the basic question at issue here is undoubtedly of importance in several chartered cities in this state. For these reasons we viewed the remedy by appeal as being inadequate here and this is why we granted an alternative writ of mandate in this case. (See People ex rel. Younger v. County of El Dorado, 5 Cal.3d 480, 492, 96 Cal.Rptr. 553, 487 P.2d 1193; cf. Brown v. Superior Court, 242 Cal.App.2d 519, 522, 51 Cal.Rptr. 633; Hagan v. Superior Court, 53 Cal.2d 498, 501--502, 2 Cal.Rptr. 288, 348 P.2d 896; Perry v. Jordan, 34 Cal.2d 87, 91, 207 P.2d 47.)

The fundamental legal question presented by the petition before us appears to be one of first impression in this state. ³ It is: Does the power of initiating municipal legislation reserved to the electors of the City of Whittier by article X, section 1003 of the City Charter extend to the initiation of a proposed amendatory zoning ordinance under which oil drilling would be prohibited in that portion of the city zoned residential?

Section 1003 reads in pertinent part: 'There are hereby reserved to the electors of the City the powers of the initiative and referendum . . .. The provisions of the Elections Code of the State of California . . . governing the initiative and referendum . . . shall apply to the use thereof in the City so far as such provisions . . . are not in conflict with the provisions of this Charter.' (Stats.1955, ch. 3, p. 3684.)

Under article I, section 2 of the California Constitution, 'All political power is inherent in the people' and under article IV, section 1 of the same document, 'The legislative power of this state is vested in the California Legislature . . ., but the people reserve to themselves the powers of initiative and referendum.' Pursuant to this constitutional reservation the legislative power within the City of Whittier is divided between the City Council on the one hand and the electors on the other. ⁴ (See Dwyer v. City Council, 200 Cal. 505, 513, 253 P. 932; Spencer v. City of Alhambra, 44 Cal.App.2d 75, 77, 111 P.2d 110; Lawing v. Faull, 227 Cal.App.2d 23, 26, 38 Cal.Rptr. 417; cf. In re Pfahler, 150 Cal. 71, 84, 88 P. 270; Klosterman v. Marsh (1966), 180 Neb. 506, 143 N.W.2d 744, 748.) Subject only to constitutional limitations and preemptive state law, the charter of the City of Whittier is the supreme law of the state with respect to its municipal affairs. (See Cal.Const., art. XI, §§ 3(a), 5(a); Harman v. City and County of San Francisco, 7 Cal.3d 150, 161, 101 Cal.Rptr. 880, 496 P.2d 1248; City of Grass Valley v. Walkinshaw, 34 Cal.2d 595, 598--599, 212 P.2d 894; Fletcher v. Porter, 203 Cal.App.2d 313, 320--321, 21 Cal.Rptr. 452; Mefford v. City of Tulare, 102 Cal.App.2d 919, 923, 228 P.2d 847.) The initiative power extends to All municipal legislation. (Hopping v. Council of City of Richmond, 170 Cal. 605, 609--610, 150 P. 977; Dwyer v. City Council, Supra, 200 Cal. at p. 511, 253 P. 932; Fletcher v. Porter, Supra, 203 Cal.App.2d at p. 321, 21 Cal.Rptr. 452.) Included in such legislation are zoning ordinances which represent an exercise of the police power granted cities by California Constitution, article XI, section 7. (Lockard v. City of Los Angeles, 33 Cal.2d 453, 460, 202 P.2d 38; Dwyer v. City Council, Supra, 200 Cal. at pp. 511--512, 253 P. 932; Johnston v. City of Claremont, 49 Cal.2d 826, 834, 323 P.2d 71.)

The initiative power reserved to the people of a city by its charter must be liberally construed. (Farley v. Healey, 67 Cal.2d 325, 328, 62 Cal.Rptr. 26, 431 P.2d 650; cf. City of Grass Valley v. Walkinshaw, supra, 34 Cal.2d at p. 599, 212 P.2d 894.) It is the duty of the courts to guard jealously this power of the people. (Martin v. Smith, 176 Cal.App.2d 115, 117, 1 Cal.Rptr. 307.)

In construing the charter power of initiative of the electors of the City of Whittier we note that the reservation of this power within the charter is not expressly limited in its coverage over municipal affairs in any manner at all. Accordingly, the following language from Spencer v. City of Alhambra, supra, 44 Cal.App.2d 75, 78, 111 P.2d 910, 912, seems entirely appropriate: 'When, therefore, the people phrased the foregoing sections pertaining to these powers in such broad, general and unambiguous language, the conclusion seems inevitable that thereby it was intended that legislation on every municipal subject should, unless expressly or by clear and necessary implication excluded by other sections, be subject to initiative action through the adoption of ordinances by the people.'

We therefore hold that the amendatory zoning ordinance proposed by petitioners and others is within the initiative power reserved to the people of the City of Whittier by section 1003 of the City Charter.

Respondent City Council and respondent City Clerk contend that this holding is contrary to those of Hurst v. City of Burlingame, 207 Cal. 134, 277 P. 308, and Laguna Beach Taxpayers' Assn. v. City Council, 187 Cal.App.2d 412, 9 Cal.Rptr. 775. In making this contention respondents overlook the decisive fact that these cases involved general law cities while this case is concerned with a chartered city In those cases it was held that zoning may not be done by initiative because the procedure leading to the enactment of an initiative ordinance is incompatible with that prescribed by statute for the enactment of zoning ordinances by a city council. (Hurst v. City of Burlingame, supra, 207 Cal. at p. 142, 277 P. 308; Laguna Beach Taxpayers' Assn. v. City Council, supra, 187 Cal.App.2d at p. 418, 9 Cal.Rptr. 775.) But the manner of enacting municipal ordinances is a municipal affair and, as previously indicated, the charter of a char tered city, rather than state statutes, govern municipal affairs within such a city. (See Brougher v. Board of Public Works, 205 Cal. 426, 438--439, 271 P. 487.) Moreover, ordinarily, there can be no implied limitations upon chartered powers concerning municipal affairs. (Adler v. City Council, 184 Cal.App.2d 763, 776--777, 7 Cal.Rptr. 805.) ⁵

In holding that in a chartered city the mode of enactment of zoning ordinances by the initiative process does not have to conform to the notice and hearing requirements which obtain when such ordinances are enacted by a city council, we see no denial of constitutional procedural due process. Due process in law-making is not the same as due process in the adjudication of controversies. (See Adler v. City Council, supra, 184...