Elysium Institute, Inc. v. County of Los Angeles, B031797

CourtCalifornia Court of Appeals
Writing for the CourtLILLIE; FRED WOODS; JOHNSON
Citation232 Cal.App.3d 408,283 Cal.Rptr. 688
PartiesELYSIUM INSTITUTE, INC., et al., Plaintiffs and Appellants, v. COUNTY OF LOS ANGELES, et al., Defendants and Respondents.
Docket NumberNo. B031797,B031797
Decision Date18 July 1991

Law Offices of Stephen F. Rohde, Stephen F. Rohde, and Gregory T. Victoroff, for plaintiffs and appellants.

De Witt W. Clinton, County Counsel, and Karen A. Lichtenberg, Principal Deputy County Counsel for defendants and respondents.

LILLIE, Presiding Justice.

Elysium Institute, Inc. and Churchill Land Corporation (Elysium) appeal from a judgment denying their petition for writ of mandamus (Code Civ.Proc., § 1094.5) wherein Elysium (1) challenged the April 1, 1986 decision of the County of Los Angeles Board of Supervisors denying Elysium's application for nonconforming use permit and structure review to continue operation of a nudist camp and (2) challenged the constitutionality of Los Angeles County Zoning Ordinance No. 10,366 pertaining to nudist camps.


The following factual and procedural background is gleaned from the pleadings herein, the trial court's statement of decision, and the findings in the April 1, 1986 Revised Findings of the Board of Supervisors and Order, which findings the trial court found to be supported by the weight of the evidence.

Since 1968, Elysium, a nonprofit corporation, has operated what it describes as a "private clothing-optional recreational and educational facility," on about seven acres of gently sloping to hilly land on North Robinson Road in the unincorporated community of Topanga in Los Angeles County. The land, owned by Churchill Land Corporation, contains two former single family residences with communal accommodations, wherein lived twelve staff members of Elysium. Other developments on the property include a swimming pool, sauna, whirlpool, tennis courts, barn, stable, and a lighted parking facility for 182 vehicles. A six-foot solid wood fence and a solid bank of mature and combustible eucalyptus and pine trees surround the northern and eastern boundaries of the property.

In 1986, Elysium had about 1,000 members, who had a total of about 400 dependent children; Elysium was open to members and their guests every day except Monday; the former single family residences contained accommodations for 20 to 30 overnight guests; outdoor camping and recreational vehicles were also permitted at Elysium. The peak activity at Elysium is during the summer, when daytime attendance may exceed 325, and as many as 30 people stay overnight on weekends. Seminars and workshops for small groups, including nonmembers, may be held through 11:00 p.m.; Elysium also holds open houses to which the general public is invited.

The area surrounding Elysium contains clusters of single family development off of Robinson and Winfield Roads to the north and east, interspersed with considerable vacant land, giving the neighborhood an overall rural character; several private residences are in close proximity to the parking lot at the west end of Elysium; one residence is located to the south of Elysium, the remaining land being a state park.

The main entrance to Elysium is from Robinson Road, a private easement with a paved width varying from 12 to 22 feet; the narrowness of the road is exacerbated by steep to rolling vertical alignment and blind curves; comparable commercial densities currently require 40-feet wide roadways; as Elysium's policy is that guests must arrive in the same car as a member, the policy suggests that guests park on Topanga Canyon Boulevard and ride with members up to Elysium; Topanga Canyon Boulevard is principally two lanes wide with limited off-road parking; the parking policy tends to congest the roadway, contrary to the rural character of the area. Robinson Road was not constructed to accommodate the current traffic volume; the traffic imposed by Elysium on the surrounding residential community is several times greater than that which would exist if the property were used for single family residential purposes. Given the high fire hazard in the area, the lack of adequate emergency access to Elysium is a hazard.

The septic system at Elysium is inadequate to support the commercial land use and may be a health hazard to the community; the night time activities at Elysium also generate noise, and an increased traffic flow on Robinson Road, creating an adverse impact on the neighboring residents.

Elysium and the surrounding area is zoned A-1-1 (Light Agriculture; one acre minimum lot size; hereinafter referred to as zone A-1); this zoning classification is intended principally for rural residential and light agricultural uses. Prior to the enactment of Los Angeles County Ordinance No. 10,366, effective November 5, 1971, nudist camps were a permitted use in zone A-1. Ordinance No. 10,366 restricted nudist camps to Zone A-2 (Heavy Agriculture) with an approved conditional use permit.

As of November 5, 1971, Elysium became a legal nonconforming use; according to the terms of the ordinance, Elysium's nonconforming use was to be discontinued in five years, unless revoked or Elysium obtained permission to extend its use. After the adoption of the ordinance, the Los Angeles County Regional Planning Commission (Commission) held hearings to determine whether the legal nonconforming status of Elysium should be modified or revoked; in February 1976, the Commission rendered a decision in favor of Elysium.

Thereafter, Elysium filed a timely application for an extension of the five-year termination period wherein Elysium maintained that the investments in land and improvements had not been fully amortized and that the ordinance was unconstitutional. The Commission and the Board of Supervisors, on appeal, each voted to deny Elysium's application. Elysium challenged these decisions by petition for writ of mandamus filed in April 1980 in the Superior Court; while the matter was pending, Los Angeles County amended its code to liberalize the findings needed to grant an extension. In light of the amendment, the court remanded the case back to the County for further administrative proceedings.

In 1983 and 1984, the County Zoning Board conducted de novo hearings on the requested nonconforming use extension; in May, 1984, the Commission granted a permit authorizing Elysium to continue in operation for another five years, subject to 27 conditions. Elysium appealed the Commission's decision to the Board of Supervisors (Board), challenging 10 of the conditions. The Board noticed a de novo hearing and in December 1984 took the entire matter under submission, tabling its decision until the preparation and submission of a report by the County's geological engineer on the geological stability of Elysium's property. Apparently without waiting for the report, the Board of Supervisors voted to deny Elysium's application in January 1985. In April 1985, Elysium filed petition for writ of mandamus and also moved for an order remanding the case for consideration of the geological report. The trial court's December 11, 1985 order and judgment provided for the issuance of a writ remanding the matter to the Board of Supervisors to consider additional evidence, but the Board was not required to conduct a public hearing. After reconsidering the entire record, including the additional evidence relating to geological stability, the Board on April 1, 1986, adopted revised findings and denied Elysium's application to continue operation of its nudist camp. 1

In May 1986, Elysium filed the instant petition for writ of mandamus against the County of Los Angeles, Board of Supervisors, and Department of Regional Planning (hereinafter referred to collectively as County), challenging the April 1, 1986 decision on numerous grounds and also challenging the constitutionality of Los Angeles County Zoning Ordinance No. 10,366 on several grounds, including the ground that the ordinance violates the constitutional rights guaranteeing free expression, freedom of assembly and association, and privacy. Elysium also maintained, inter alia, that the ordinance constitutes an unconstitutional taking of property without due process of law or fair compensation; that the classifications of property uses in the ordinance are arbitrary and unreasonable and not reasonably related to a legitimate purpose or objective; and the ordinance is unconstitutionally vague and overbroad.

There is a split of authority as to whether an ordinance is subject to constitutional attack in an administrative mandamus proceeding. Gong v. City of Freemont (1967) 250 Cal.App.2d 568, 574, 58 Cal.Rptr. 664, holds that an ordinance is not so subject, the proper remedy being an action for declaratory relief. Floresta, Inc. v. City Council (1961) 190 Cal.App.2d 599, 612, 12 Cal.Rptr. 182, holds that while mandamus is traditionally a procedure for reviewing the action of an administrative agency as to an alleged abuse of discretion, it may also be invoked to challenge the constitutionality of ordinances and regulations. However, both Gong and Floresta agree that upon appropriate allegations, a mandamus proceeding may be joined with an action for declaratory relief. (250 Cal.App.3d at p. 574, 58 Cal.Rptr. 664; but see, H.W. Rohl Co. v. County of San Diego (1963) 212 Cal.App.2d 707, 711, 28 Cal.Rptr. 196.) Given the failure of respondents to challenge the propriety of consideration of such constitutional issues by the trial court or by us, we deem the petition to include a complaint for declaratory relief seeking declaration of the unconstitutionality of portions of the zoning ordinance.

On May 23, 1986, the parties stipulated that the Board's April 1, 1986 decision would be stayed pending the entry of judgment in the pending proceeding.

After trial, the court on June 18, 1987, issued a tentative decision in favor of County; Elysium requested...

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