City of Sausalito v. County of Marin

• Decision Date: 30 October 1970
• Citation: 90 Cal.Rptr. 843,12 Cal.App.3d 550
• Court: California Court of Appeals Court of Appeals
• Parties: CITY OF SAUSALITO, a municipal corporation, et al., Plaintiffs and Appellants, v. COUNTY OF MARIN, a political subdivision of the State of California, et al., Defendants and Respondents. Gulf Oil Company of California, a corporation, and the Frouge Corporation, a Delaware corporation, Intervenors and Respondents. Civ. 26883.

Page 843

90 Cal.Rptr. 843

12 Cal.App.3d 550

CITY OF SAUSALITO, a municipal corporation, et al., Plaintiffs and Appellants, v. COUNTY OF MARIN, a political subdivision of the State of California, et al., Defendants and Respondents Gulf Oil Company of California, a corporation, and the Frouge Corporation, a Delaware corporation, Intervenors and Respondents.

Civ. 26883.

Court of Appeal, First District, Division 4, California.

Oct. 30, 1970.

Hearing Denied Dec. 23, 1970.

Myers, Praetzel & Pierce, San Rafael, for appellants.

Douglas J. Maloney, County Counsel, San Rafael, for respondent County of Marin.

Bagley, Bianchi & Sheeks, John W. Rosenberg, San Rafael, for respondents, Gulf Oil Co. and Frouge Corp.

RATTIGAN, Associate Justice.

In this action for declaratory and injunctive relief, plaintiffs sought to invalidate certain actions taken by the County of Marin in the process of applying its zoning ordinance to 'Marincello,' a large (2,100-acre) tract located within that county. The individual plaintiffs own land adjacent to the tract: the incorporated limits of the plaintiff city, while not including any part of the tract, are coterminous with some of its boundaries. The named defendants included the County of Marin and its board of supervisors, planning commission, planning director, and director of public works. Frouge Corporation ('Frouge') and Gulf Oil Company ('Gulf'), Delaware corporations who own Marincello, intervened in the action as parties defendant. The trial court made findings of fact in defendants' favor and entered judgment accordingly. Plaintiffs appeal from the judgment; Frouge, Gulf and the County of Marin appear as respondents.

The judgment in effect upholds (1) the validity of a Marin County ordinance which was enacted by the board of supervisors in February, 1965, and which amended the county's zoning ordinance to rezone Marincello as a 'P-C district' ('planned community district'); and the validity of subsequent board actions taken pursuant to the zoning ordinance and purporting, successively, (2) to adopt a 'master plan' for Marincello as a P-C district and (3) to approve a 'precise development plan' for a specific portion thereof. On the appeal, plaintiffs challenge the judgment in all three respects. Because we hold against plaintiffs on the first point but in their favor on the second and third, and because the first point is independent of the others, we consider the three points separately.

The Rezoning Proceedings (November 1964--February 1965)

In November, 1964, and pursuant to the Marin County zoning ordinance, Frouge and Gulf petitioned the planning commission for a rezoning of Marincello from a 'D' classification (in which the ordinance permitted certain residential and agricultural uses not specified in the record) to 'P-C' ('Planned Community District'). The planning commission favorably recommended the rezoning to the board of supervisors. On January 19, 1965, and pursuant to notice published six days earlier (on January 13), the board commenced a public hearing on the request. After hearing from several persons on January 19, the board continued the matter to February 2, 1965, for further hearing. No notice of the continued hearing was published. After further hearing the matter on February 2, the board on that date adopted Ordinance No. 1411, amending the Marin County zoning ordinance to rezone Marincello from 'D' to 'P-C' as requested by its owners.

Plaintiffs challenge the validity of Ordinance No. 1411 upon the ground that notice of the board's proceedings was published only six days before the proceedings were convened, although the statute then in effect (former Government Code, section 65654) ¹ required such publication ten days in advance of the hearing noticed. In this regard, the trial court found as follows: 'IX. Proper notice of the hearing was given, but was published for six days rather than ten days. * * * X. Publication of notice for six instead of ten days was not, in any way, prejudicial to plaintiffs, individually or collectively, or any other persons similarly situated. XI. Publication of said notice for six instead of ten days did not cause plaintiffs to suffer substantial injury or any injury whatsoever. XII. It is not probable that a different result would have ensued if the notice had been published for ten days instead of six days.' Under 'Conclusions of Law' the court further stated: 'I. * * * (Marincello) * * * was properly and legally rezoned from zone 'D' to zone 'P-C' in substantial compliance with applicable law. Marin County Ordinance No. 1411 is, in all respects, a valid and effective enactment of the Marin County Board of Supervisors.' ²

The trial court thus determined that Government Code, section 65801 applied to the rezoning proceedings although it had not become law until after the enactment of Ordinance No. 1411; ³ found, as the section permits (see fn. 3, Ante), that plaintiffs had not been prejudiced by the short notice given of the proceedings; and concluded, as the statute requires in such case that the rezoning proceedings (and Ordinance No. 1411) were valid.

Plaintiffs do not dispute the sufficiency of the evidence to support the just-quoted findings; they challenge the trial court's invocation of Government Code, section 65801 (as indicated by its conclusions of law) upon the asserted grounds that the statute could not be applied (1) retroactively (see fn. 3, Ante) or (2) substantively. These contentions cannot be sustained; we affirm the judgment insofar as it validates Ordinance No. 1411.

Retroactivity of Section 65801

A statute which is 'procedural' in nature--as distinguished from one which is 'substantive'--may be given effect as to pending and future litigation even if the event underlying the cause of action therein occurred before the statute took effect. (Aetna Cas. & Surety Co. v. Ind. Acc. Comm. (1947) 30 Cal.2d 388, 393--394, 182 P.2d 159; Church v. County of Humboldt (1967) 248 Cal.App.2d 855, 857, 57 Cal.Rptr. 79.) Whether it can be classified as 'procedural,' however, depends upon its effect rather than its form. (Aetna Cas. & Surety Co. v. Ind. Acc. Comm., Supra, 30 Cal.2d, at p. 394, 182 P.2d 159.) The subject matter of Government Code, section 65801 relates generally to 'procedural' steps required in local zoning proceedings, but its effect is 'substantive' because it establishes a standard for validation of those proceedings by a reviewing court whose 'procedures' it does not reach. It therefore falls within the general rule that a statute will not be retroactively applied unless legislative intent to the contrary is clear. (DiGenova v. State Board of Education (1962) 57 Cal.2d 167, 174, 18 Cal.Rptr. 369, 367 P.2d 865; Aetna Cas. & Surety Co. v. Ind. Acc. Comm., Supra, 30 Cal.2d at p. 394, 182 P.2d 159.)

Although it is sometimes stated that such intent must be 'expressly declared' by the Legislature (see, e.g., DiGenova v. State Board of Education, Supra; Pen.Code, § 3; Gov.Code, § 9608), the general rule 'is not a straitjacket. Where the Legislature has not set forth in so many words what it intended, the rule * * * should not be followed blindly in complete disregard of factors that may give a clue to the legislative intent. It is to be applied only after, considering all pertinent factors, it is determined that it is impossible to ascertain the legislative intent.' (In re Estrada (1965) 63 Cal.2d 740, 746, 48 Cal.Rptr. 172, 176, 408 P.2d 948, 952.)

It reasonably appears that the Legislature enacted section 65801 as a curative statute for the purpose of terminating recurrence of judicial decisions which had invalidated local zoning proceedings for technical procedural omissions. (E.g., Hurst v. City of Burlinggame (1929) 207 Cal. 134 at pp. 139--141, 277 P. 308; Hein v. City of Daly City (1958) 165 Cal.App.2d 401 at pp. 405--406, 332 P.2d 120; Williams v. City of San Bruno (1963) 217 Cal.App.2d 480 at pp. 486--490, 491, 31 Cal.Rptr. 854. See California Zoning Practice (Cont.Ed.Bar 1969) § 4.17, pp. 113--114.) This legislative purpose would be fully served only if the section were applied in future judicial review (to which it is clearly addressed: see its text, quoted in fn. 3, Ante), but regardless of whether the offending procedural omission occurred before or after the section's enactment.

The Legislature was presumably aware, from the high and growing frequency of zoning litigation in California, that many actions such as this one were pending (or impending, as this one was) when it enacted the section in 1965, and it must have been equally aware of the relevant rule that 'a proper validating act may be effective as to pending litigation.' (Miller v. McKenna (1944) 23 Cal.2d 774, 781, 147 P.2d 531, 535. See Wall v. State of California (1946) 73 Cal.App.2d 838, 845, 167 P.2d 740.) Still, it did not--as it could have done--state that the section was to be applied only in judicial review of zoning irregularities which occurred after its enactment. In light of these 'pertinent factors,' we do not find it 'impossible to ascertain the legislative intent'; to the contrary, such factors 'indicate the Legislature must have intended that the * * * statute should operate in all cases not reduced to final judgment at the time of its passage.' (In re Estrada, Supra, 63 Cal.2d 740 at p. 746, 48 Cal.Rptr. 172 at p. 176, 408 P.2d 948 at p. 952.) Accordingly, the trial court properly invoked section 65801 in point of time.

Substantive Application of Section 65801

Of the trial court's substantive application of section 65801, plaintiffs first contend that the statute cannot be construed to dispense with the ten-day notice requirement because such was essential to due process. It is clear that Some notice of hearings upon the proposed P-C rezoning was required for due process purposes, because of the effect of zoning upon the ownership and use of property. (Gilgert v. Stockton Port Dist. (19...