Building Industry Assn. v. Superior Court

• Decision Date: 06 June 1989
• Docket Number: D009135,Nos. D009161,s. D009161
• Citation: 259 Cal.Rptr. 325,211 Cal.App.3d 277
• Court: California Court of Appeals Court of Appeals
• Parties: BUILDING INDUSTRY ASSOCIATION OF SAN DIEGO et al., Petitioners, v. SUPERIOR COURT, etc. County of San Diego, Respondent. CITY OF OCEANSIDE et al., Real Parties in Interest.

Page 325

259 Cal.Rptr. 325

211 Cal.App.3d 277

BUILDING INDUSTRY ASSOCIATION OF SAN DIEGO et al., Petitioners, v. SUPERIOR COURT, etc. County of San Diego, Respondent CITY OF OCEANSIDE et al., Real Parties in Interest.

Nos. D009161, D009135.

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

June 6, 1989.

As Modified on Denial of Rehearing June 27, 1989.

Review Denied Aug. 17, 1989.

Milch & Wolfsheimer, James S. Milch, Louis M. Wolfsheimer, Solomon, Ward, Seidenwurm & Smith, and William O. Ward, III, Worley, Schwartz, Garfield & Rice and Donald R. Worley, San Diego, for petitioners

Ronald A. Zimbrun, Edward J. Connor, Jr., Sharon L. Browne and John M. Groen as Amici Curiae on behalf of petitioners.

Charles R. Revlett, City Atty., Oceanside, Freilich, Stone, Leitner & Carlisle, Katherine E. Stone and Deborah J. Fox and Margaret A. Sohagi, for real parties in interest.

John Woodhead, City Atty., Riverside, as Amici Curiae on behalf of real parties in interest.

TODD, Associate Justice.

In these consolidated petitions for writ of mandate, Del Oro Hills, a California general partnership, and Building Industry Association of San Diego, a California nonprofit corporation, (collectively, BIA), in connection with their consolidated actions for declaratory and injunctive relief, seek to compel the San Diego County Superior Court to grant their motions for summary judgment and enjoin enforcement by the City of Oceanside (City) of a residential growth control measure enacted by initiative April 21, 1987, and known as ballot Proposition A and Chapter 32A, City of Oceanside Municipal Code (Prop. A or Ch. 32A). The essentially identical petitions and points and authorities in support of the petitions of BIA challenge the validity of Ch. 32A on the basis the measure conflicts with City's general plan and with state planning and zoning law. (See Gov.Code, § 65000 et seq.) BIA does not challenge Ch. 32A on the basis it has no "real and substantial relation to the public welfare" (Associated Home Builders etc., Inc. v. City of Livermore (Livermore ) (1976) 18 Cal.3d 582, 609, 135 Cal.Rptr. 41, 557 P.2d 473; Miller v. Board of Public Works (1925) 195 Cal. Evidence Code section 669.5 played a role in the trial court's decision. Generally, Evidence Code section 669.5 provides there is a presumption that measures such as Ch. 32A which directly limit, by number, the building permits that may be issued for residential construction or the buildable lots which may be developed for residential purposes are presumed "to have an impact on the supply of residential units available in an area" (subd. (a)), and the section imposes on the City the burden to prove "the ordinance is necessary for the protection of the public health, safety, or welfare of the population of the city" (subd. (b)). In ruling on the parties' cross-motions for summary adjudication of issues and BIA's motion for summary judgment, the trial court applied the Evidence Code section 669.5, subdivision (a), presumption. ¹

477, 490, 234 P. 381), i.e., that the measure is invalid as an arbitrary and capricious exercise of the police power. Joining the parties are amici curiae taking City's position, including the City of Riverside, whose brief is joined in by numerous public entities, and amici curiae taking BIA's position, Pacific Legal Foundation, [211 Cal.App.3d 281] People for Affordable Housing, the Urban League of San Diego, San Diego County Taxpayers Association and Hispanic Bankers Association.

At an October 14, 1988, hearing on the motions, after referring to its tentative ruling and the rationale it sets forth, the court stated that the City did not carry its rebuttal burden by presenting San Diego Association of Governments (SANDAG) documentation, described as "Series 6," covering the 1985 to 1991 time period and concerning regional housing needs assessments and City's share of those numbers, as well as declarations containing figures showing numbers of residential building permits issued before and after the April 1987 adoption of Ch. 32A. The last date covered by the figures was December 31, 1987. Instead, the court found that City showed there was an issue of material fact in connection with the Evidence Code section 669.5 presumption and its rebuttal and on that ground denied the motion. ²

In any event, on BIA's motion the trial court found on issue 1 that Chapter 32A is a zoning ordinance within the meaning of Government Code section 65860, subdivision (a). This decision made BIA's issue number 2 moot. Moreover, the trial court found triable issues of material fact on BIA's issues numbered 3 and 5 through 9 separately setting out asserted conflicts between Ch. 32A and City's general plan (issue 3) as well as Government Code sections 65589.5 (issue 5), 65581, subdivision (d), (issue 6), 65358, subdivision (a) and 65588 (issue 7), 65583, subdivision (c), (issue 8), and 65913, 65913.4, 65915 and 65917 (issue 9). On BIA's issue number 10 challenging Ch. 32A on the ground it conflicts with the statewide scheme the trial court also found triable issues of material fact.

In addition, on BIA's motion for summary judgment on issue number four of BIA's motion, whether Ch. 32A "[i]s inconsistent with the City of Oceanside's General Plan, that Inconsistency Must at Least Give Rise to a Presumption that It Does Not Reasonably Relate to the Community's General Welfare, and Therefore Constitutes as Abuse of the City's Police Power," the trial court stated, in part:

"I think BIA is correct and has eloquently argued that Proposition A 'appears,' and I put quotes around the word 'appears' to be facially inconsistent with the City's adopted general plan. Especially the PFME, the Public Facilities Management Element. [sic ] As well as the low and moderate income housing fair share allocation for the City.

"However--the City has, at this particular point in time--barely successfully rebutted this facial inconsistency sufficient to raise issues, that is, triable issues of material fact as to Prop A's implementation based upon the materials set forth in the tentative ruling as well as in opposition to a facial attack; that is a facial attack vis-a-vis the statutes, the general law statutes in the area. [sic ] As well as the City's general plan. So, that portion of the tentative ruling will be confirmed."

In its tentative ruling the court first overruled objections to certain declarations In a June 16, 1988, declaration of City Planner, Michael J. Blessing, he states at paragraph 10, lines 22 to 28:

                and to BIA's standing to sue.  On the standing issue the court relied on Construction Ind.  Ass'n, Sonoma Cty. v. City of Petaluma (9th Cir.1975) 522 F.2d 897, 903-905.   The court proceeded to deny BIA's motion for summary judgment finding "the question of consistency is a material triable issue of fact per the Turlock case.  [149 Cal.App.3d 584, 197 Cal.Rptr. 303.]....  Further, the court finds disputed facts per supplemental declarations of Blessing, paragraph 10, lines 22-28 (regional housing), and Dyett declaration, paragraph 9, lines 11-14 (PFME)."
                

"10. During 1987 a total of 1,098 residential units were determined to be excepted from the ordinance pursuant to Section 32A.2(f) and (g). In the second year that the Residential Development Control System was in operation (January 1, 1988 to June 14, 1988) a total of 1,981 residential units were determined to be excepted from the ordinance pursuant to Section 32A.2(f) and (g)."

An attachment to this declaration contains figures which indicate that through the third week of December 1987, City issued a total of 6,278 building permits for a total of 4,673 single family and multiple residential units. These figures compare with those shown on the attachment for the two immediately preceding years, 1986 and 1985, which involved, respectively, 3,693 and 3,844 building permits for total residential units numbering, respectively, 2,351 and 2,724.

A declaration dated September 6, 1988, by Michael V. Dyett, a regional planning consultant who in 1979 assisted in drafting the Public Facilities Management Element (PFME) of City's general plan, states in paragraph 9, lines 11 to 14 (referred to by the trial court):

"9. I have read and am thoroughly familiar with the managed growth system, commonly known as Prop. A, adopted by the voters of the City of Oceanside on April 21, 1987 and I am of the opinion that Prop. A is consistent with the PFME."

Thus, the trial court denied BIA's summary judgment motion on the basis City successfully showed there are triable issues of material fact necessary to be determined in order to resolve the question whether there is facial inconsistency between Ch. 32A and City's general plan, on the one hand, and state laws, on the other. A corollary of this conclusion is that under state law, including the planning and zoning law and Evidence Code section 669.5, the matter of conflict between a numerical growth control ordinance such as we deal with here and state law or a general plan cannot be determined without reference to facts relating to a local entity's compliance with its obligation to meet its share of regional housing needs. This corollary is the primary issue in the case.

Generally, the thrust of City's position was and is that Ch. 32A is not inconsistent or in conflict with its general plan or state law and that since the enactment of Ch. 32A City has complied and will comply with its fair share of regional housing needs as established by SANDAG. Though it has not petitioned for a writ, City challenges the trial court's rulings in BIA's favor that Ch. 32A is a zoning ordinance, and that BIA has standing to challenge Ch. 32A independent of the remedies provided by Government Code sections 65750 to 65763 which City argues are BIA's exclusive remedies.

As mentioned, BIA seeks a writ of mandate on the ground there is only presented in this case a question of law involving the...