Case v. City of Los Angeles

• Decision Date: 08 July 1963
• Court: California Court of Appeals Court of Appeals
• Parties: Eva J. CASE, Marcus Tobian, Cahuenga View Property Owners' Association, Inc., Plaintiffs and Appellants, v. The CITY OF LOS ANGELES, Council of the City of Los Angeles, John C. Monning, Superintendent of Building and Safety, Theodore H. Bentley, R. A. Watts and Billy Hunter, Defendants and Respondents. Civ. 26839.

Page 271

32 Cal.Rptr. 271

218 Cal.App.2d 36

Eva J. CASE, Marcus Tobian, Cahuenga View Property Owners' Association, Inc., Plaintiffs and Appellants, v. The CITY OF LOS ANGELES, Council of the City of Los Angeles, John C. Monning, Superintendent of Building and Safety, Theodore H. Bentley, R. A. Watts and Billy Hunter, Defendants and Respondents.

Civ. 26839.

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

July 8, 1963.

Hearing Denied Sept. 4, 1963.

Phil Silver, Hollywood, for appellants.

Roger Arnebergh, City Atty., Bourke Jones, Claude E. Hilker, Asst. City Attys., for municipal respondents.

Richard M. Crane, Beverly Hills, for respondents Bentley, Watts and Hunter.

FOURT, Justice.

This is an appeal from a judgment which among other things granted defendants' motions for declaratory judgment on the pleadings and declared the validity and constitutionality of an approval of a conditional use by city authorities to the individual respondents herein.

The complaint filed herein on November 6, 1961, was in 7 counts and alleged generally that Bentley, Watts and Hunter, sometimes hereinafter referred to as the individual respondents, were the owners of 47 acres of land zoned R1-H located on Cahuenga Boulevard in Los Angeles to the immediate west of the Hollywood Freeway; that ordinance number 90500 of the City of Los Angeles limits he uses within such zone of single family dwellings excepting where conditional uses are granted for certain additional purposes pursuant to the procedure provided in said ordinance; that following the conditional use request procedure the individual respondents applied for permission to construct a 'deluxe apartment house complex group dwelling type of housing project'; that a public hearing was held after which the City Zoning Administrator conditionally approved the application; that thereafter appellants appealed the decision to the City Planning Commission and then to the City Council, each of which public bodies heard the matter and affirmed the decision of the Zoning Administrator.

The municipal and individual defendants filed their demurrers to the complaint on November 27, 1961, urging among other things that the complaint did not state facts sufficient to constitute a cause of action and that in many respects the complaint was uncertain.

The demurrer was to have been heard in mid-December 1961, and just prior thereto on December 13, 1961, the plaintiffs filed a first amended complaint. The amended complaint is word for word like the original complaint with the exception that a new 7th cause of action is added in the place of the original 7th cause of action.

The municipal defendants filed a demurrer both general and special to the amended complaint and a motion to strike. It was set forth therein that among other things the amended complaint was uncertain in 17 separate respects. The individuals defendants resubmitted their demurrer as previously filed with additional points and authorities in support thereof.

The court overruled the demurrers but without prejudice to the filing by defendants of an appropriate motion for a declaratory judgment on the pleadings. The motion of defendants to strike certain parts of the amended complaint went off calendar.

The defendants in April 1962 filed separate notices of motions for a declaratory judgment upon the pleadings which motions were heard and granted on April 26, 1962, and judgment was filed and entered on May 31, 1962. This appeal followed.

The basic questions are whether the Los Angeles Municipal Code provisions which permit the establishment of a housing project in an R1 zone are constitutional and whether the allegations of the amended complaint with reference to the conduct of public hearings were such as to preclude the court from granting respondents' motions for declaratory judgment under the circumstances.

The amended complaint sets forth the pertinent provisions of the Los Angeles Municipal Code, sometimes hereinafter referred to as the code. ¹

The amended complaint further sets forth in effect that among the uses permitted in an R1 zone are housing projects if the Zoning Administrator 'finds that the proposed location will be desirable to the public convenience and welfare and will be in harmony with the various elements and objectives of the master plan.' Section 12.03 of the code heretofore set forth in the footnote defines the term 'housing project' as used in the code provisions under discussion.

In plaintiffs' first cause of action they in effect allege that section 12.24C-1.5(e) of the code (plaintiffs incorrectly referred to (b) which has to do with golf courses) is unconstitutional because it provides for rezoning without an amendment to the master plan by ordinance and that the 'ordinance' authorizing a housing project in the R1 zone will depreciate the value of plaintiffs' property and constitute an invasion of their constitutional rights.

The acts of the administrative agencies in approving the location of a conditional use is not a rezoning of the property. The agency in this case simply found that the legislatively imposed standards exist and thereby effectuated the legislative permission to construct a housing project in the R1 zone. In Essick v. City of Los Angeles, 34 Cal.2d 614, 624, 213 P.2d 492, 499, the court said: '* * * it is clear that a resolution performing the administrative act of granting a conditional use permit, as authorized by amended subsection C of section 12.24, does not constitute the 'changing of a zoning ordinance" (Emphasis added). Also in Wheeler v. Gregg, 90 Cal.App.2d 348, 363, 203 P.2d 37, 47, the court stated: 'It must therefore be held that the power granted by section 12.24 of the ordinance to the Planning Commission in the first instance, and to the City Council on appeal, to grant Conditional Use Permits in the particular instances specified, was not intended to, nor does it confer any power to amend or alter the zoning ordinance itself, nor does it delegate any legislative power * * *. The decision to grant a Conditional Use Permit does not create a new zone. It merely affirms as a fact the existence of the circumstances under which the ordinance by its terms prescribes that such permit shall issue.' (Emphasis added.)

With reference to the second part of plaintiffs' allegations, the courts in California have many times and held in effect that a diminution of property values, if any, resulting from the proper exercise of governmental functions is no basis for invalidating such proper governmental activities. See Clemons v. City of Los Angeles, 36 Cal.2d 95, 99, 222 P.2d 439; Reynolds v. Barrett, 12 Cal.2d 244, 250, 83 P.2d 29, and Otis v. City of Los Angeles, 52 Cal.App.2d 605, 614, 126 P.2d 954, 959, where it is said: 'The mere fact that damage resulted to plaintiffs' property from the application of the [zoning] ordinance thereto in no way affects the validity of the legislative or administrative board's action. When the exercise of the police power is proper and reasonable, ensuing damage to one's property is one of the prices the individual must pay as a member of society, to the end that the general welfare of the community may be served.'

The identical contention was made in Wheeler v. Gregg, 90 Cal.App.2d 348, at page 365, 203 P.2d 37, at page 48, and there the court stated:

'The permit granted respondent Gregg does not restrict appellants in the use of their own property. And they have no vested right in the maintenance of restrictions on respondent Gregg's property. It may be true that to continue the zoning restrictions upon respondent Gregg's property might have conferred benefit on neighboring owners and enhanced the value of their property, but the existence of benefits does not generate interests protected by the constitution against diminution by governmental authorities in the proper exercise of the police power. Zoning regulations are not contracts by the city and may therefore be modified by the latter. Property is always held subject to the valid exercise of police power. The theory of vested rights relates only to such rights as an owner of property may possess not to have his property rezoned after he has started construction thereon or was making a use thereof permitted by law, when such construction or use does not constitute a nuisance. (Citations.) The adoption of Zoning Ordinance No. 90,500 gave appellants no vested rights which would prevent defendant city from subsequently amending the ordinance or granting a Conditional Use Permit thereunder. The provisions of the ordinance restricting the uses to which respondent Gregg's property could be put did not result in a contract with appellants divesting the city of the right to subsequently change the ordinance or to grant a Conditional Use Permit adversely affecting the property of appellants.'

In the second cause of action plaintiffs also attack section 12.24C-1.5 of the code as being unconstitutional, as being vague and without adequate criteria to guide in the granting of a conditional use and further that the factors which constitute a 'housing project' are inadequately set forth in the code. In appellants' brief no mention is made of the first assertion other than that which is made in their title with reference to their contention of vagueness and it may be assumed that they have abandoned that particular contention. The appellants themselves allege that Ordinance 107884 of the city amended section 12.03 of the code so as to define a 'housing project.' See footnote. There is no mention in the section of any requirement to the effect that a housing project is limited to slum areas or that it must be financed by 'federal funds,' as is apparently plaintiffs' argument. We think the definition of a housing project as set forth in the code suffices for the purposes of this case.

In the third cause of action plaintiffs contend that section 12.24C-1.5...