Day v. City of Los Angeles

• Citation: 189 Cal.App.2d 415,11 Cal.Rptr. 325
• Court: California Court of Appeals Court of Appeals
• Decision Date: 24 February 1961
• Parties: David M. DAY, Plaintiff and Appellant, v. CITY OF LOS ANGELES, a Municipal Corporation, City Council of the City of Los Angeles, Everett G. Burkhalter, Earle D. Baker, Patrick D. McGee, Harold A. Henry, Rosalind Wiener Wyman, L. E. Timberlake, James C. Corman, Gordon R. Hahn, Edward R. Roybal, Charles Navarro, Carl L. Rundberg, Ransom M. Callicott, John C. Holland, John S. Gibson, Jr., Lyall Pardee, City Engineer, John E. Roberts, Director of Planning, G. E. Morris, Superintendent of Buildings, Doe I, Doe II, and Doe III, Defendants. Lyall Pardee, City Engineer, Respondent. Civ. 25012.

Page 325

11 Cal.Rptr. 325

189 Cal.App.2d 415

David M. DAY, Plaintiff and Appellant, v. CITY OF LOS ANGELES, a Municipal Corporation, City Council of the City of Los Angeles, Everett G. Burkhalter, Earle D. Baker, Patrick D. McGee, Harold A. Henry, Rosalind Wiener Wyman, L. E. Timberlake, James C. Corman, Gordon R. Hahn, Edward R. Roybal, Charles Navarro, Carl L. Rundberg, Ransom M. Callicott, John C. Holland, John S. Gibson, Jr., Lyall Pardee, City Engineer, John E. Roberts, Director of Planning, G. E. Morris, Superintendent of Buildings, Doe I, Doe II, and Doe III, Defendants.

Lyall Pardee, City Engineer, Respondent.

Civ. 25012.

District Court of Appeal, Second District, Division 2, California.

Feb. 24, 1961.

Rehearing Denied March 15, 1961.

Hearing Denied April 19, 1961.

James J. Clancy, Sun Valley, for appellant.

Roger Arnebergh, City Atty., Bourke Jones, Asst. City Atty., Claude E. Hilker, Deputy City Atty., Los Angeles, for respondent.

ASHBURN, Justice.

Plaintiff appeals from a judgment denying his prayer for mandamus. His objective is to effectuate an application for rezoning of his property from A2 to RA. Joined as defendants are the City of Los Angeles, the members of the City Council, the City Engineer, the Director of Planning and the Superintendent of Buildings. Upon the original petition the court on November 13, 1959, issued an alternative writ directed only to Lyall Pardee, the City Engineer, requiring him to transmit to the City Council the draft of a proposed ordinance changing petitioner's property from zone A2 to RA or to show cause why he had not done so. The petition as amended sought a writ 'directed to the respondents to do all acts required by law and to rezone the property included within said Tract 24316 from A2 to RA, and that respondent Superintendent of Buildings be required to issue such building permit to plaintiff.'

Appellant's counsel defines the issue thus: 'The trial court denied the relief sought, the essence being a writ directing the City Council to change the zone from A2 to RA as previously promised in their action of September 6, 1957 on the zone change application.' He propounds, among others, the question: 'Is Council action in refusing to adopt the proposed ordinance changing the zone from A2 to RA within the control of this court and subject to judicial compulsion?'

Plaintiff's land is a two-acre parcel situated in Sun Valley in the city of Los Angeles. On May 23, 1957, he applied for a change of zone from A2 (two-acre) zoning to RA (one-half acre) zoning. After hearing held the City Council on September 6, 1957, adopted a report of its Planning Committee which stated that the Planning Commission had recommended the requested change subject to filing of a subdivision map; that the new zoning would be in accordance with the Master Plan Restudy for that area and could be justified on the basis of sound zoning practice. The committee's report, so approved by the council, also provided:

'1. That upon the filing of a tentative tract map of the subject property and the approval of same by the Director of Planning under the provisions of Ordinance No. 79,310, as amended, the City Attorney be instructed to prepare the necessary ordinance changing the zone from A2 to RA on a 2-acre parcel of land * * * and that he transmit same to the City Engineer.

'2. That the City Engineer be instructed to hold said ordinance and present same to the Council for adoption simultaneously with the presentation for approval of the final tract map of said property.

'3. That after adoption of the zone change ordinance and final approval of said tract map, the City Engineer be further instructed to withhold recordation of the tract map until the rezoning ordinance has been published. * * *.

'4. That a copy of the tentative tract map and information concerning driveway locations be submitted to and approved by the Department of Traffic.'

Plaintiff thereupon employed a licensed civil engineer to prepare a subdivision map and incurred other expenditures. A tentative map was filed on November 12, 1957. The Director of Planning having failed to act within the time prescribed by law for imposing conditions upon approval of the map (Bus. & Prof. Code, § 11553), the City Clerk certified the same as required by the statute. It was never approved by the Department of Traffic in the submitted form. On January 21, 1958, said tentative map was approved by the Director of Planning subject to various conditions 'among which were conditions calling for the compliance with municipal requirements relative to drainage, sewers, fire prevention and other improvements.'

A final tract map was filed in February, 1958, which carried an offer to dedication of a strip of land 2 1/2 feet wide along La-Tuna Canyon Road. On August 12, 1958, the City Engineer by endorsement thereon certified that all provisions of state law and local ordinances had been complied with; but in his letter of transmittal of same to the City Council he said: 'I certify as to the correctness of said map and transmit same to your Honorable Body despite the fact that recordation of the tract without an accompanying change of zone will result in the creation of illegal-sized lots in violation of the City Zoning Ordinance.' On September 23, 1958, the council approved this final map and it was recorded on the next day.

On September 12, 1958, the Director of Planning had transmitted the zone change ordinance to the council with a recommendation 'that it not be adopted because, without the necessary improvements, such a zone change would not conform with good zoning practice.' On October 30, the council adopted a report of its Planning Commission which said, in part: 'The Director, on January 13, 1958, approved the tract, but imposed with his approval certain conditions requiring street improvements, sewers, etc. * * * However, the change of the property to the RA Zone without the provision of necessary improvements would not conform with good zoning practice, and could therefore not meet the requirements for a change of zone established by Section 12.32 of the Municipal Code.' Also: 'In view of the above and in accordance with the recommendation of the Planning Commission we Recommend that the accompanying ordinance not be adopted and ordered filed. We Further Recommend that Council action of September 6, 1957, in connection with this matter be rescinded, the rezoning proceedings be terminated and thereafter the matter be filed.'

The Pardee answer alleged that at the time of transmitting the final subdivision map to the City Council (August 12, 1958, more than a year before issuance of the alternative writ), 'he did not have the subject zone change ordinance in his possession so as to enable him to transmit same to the City Council; that on the contrary by...