Ensign Bickford Realty Corp. v. City Council

• Decision Date: 28 March 1977
• Citation: 137 Cal.Rptr. 304,68 Cal.App.3d 467
• Court: California Court of Appeals Court of Appeals
• Parties: ENSIGN BICKFORD REALTY CORP., Plaintiff and Respondent, v. CITY COUNCIL OF the CITY OF LIVERMORE, Defendant and Appellant. Civ. 38981.

Page 304

137 Cal.Rptr. 304

68 Cal.App.3d 467

ENSIGN BICKFORD REALTY CORP., Plaintiff and Respondent, v. CITY COUNCIL OF the CITY OF LIVERMORE, Defendant and Appellant.

Civ. 38981.

Court of Appeal, First District, Division 3, California.

March 28, 1977.

Hearing Denied May 26, 1977.

Robert J. Logan, City Atty., Gray B. Reiners, Asst. City Atty., Livermore, for defendant and appellant.

Douglas M. Schwab, Daniel E. Titelbaum, Heller, Ehrman, White & McAuliffe, San Francisco, Lloyd M. Haines, Livermore, for plaintiff and respondent.

SCOTT, Associate Justice.

The City of Livermore appeals from a judgment granting Ensign Bickford Realty Corporation's petition for a writ of mandamus directing appellant City to reconsider Bickford's rezoning application.

Respondent Bickford is the owner of a parcel of real property located in the northeast section of the City of Livermore. The property was annexed by the City in 1968, and shortly thereafter was zoned 'CN,' a classification permitting neighborhood commercial facilities. The CN zoning of the property was at all times consistent with the City's General Plan and was retained until June 3, 1974, when the City rezoned the property 'RS--4,' for residential use only. In 1975 Bickford applied to the City Council for rezoning to CN, stating that a neighborhood shopping center would presently be constructed on its property and that Tradewell Stores, Inc., a grocery store chain, would be the major tenant. The City Planning Commission, by a resolution adopted on May 6, 1975, recommended against the CN zoning. Its recommendation was based upon the following factors: '1. That although the proposed rezoning is in conformance with the General Plan, the public necessity, convenience, and general welfare does not require the adoption of 'CN' zoning of this property at this time. 2. That the population base to support a Neighborhood Commercial area, as outlined in the General Plan, is not adequate at this time, nor is it anticipated that the neighborhood population will become large enough in the immediate future to justify rezoning at this time. 3. Inasmuch as the principal use proposed for the subject site is one intended to serve the 'community,' the intent of the proposed rezoning to 'CN' would not be served (provision of day to day shopping convenience to the surrounding neighborhood). 4. That current lack of sewer capacity makes it unlikely that necessary supporting population will develop in the near future.'

On July 28, 1975, following a public hearing, the City Council denied Bickford's application by a vote of three to one. The City Council hearing was recorded and a transcript thereof was introduced into evidence and considered by the court below. It appears from the discussion at the public hearing that a portion of the northeast section of Livermore, in the so-called Springtown area, had already been zoned CN. The council wanted to develop this area before permitting commercial development elsewhere in the northeast section of Livermore. Various members of the council expressed the view that although there was a sufficient population base in the area to support one shopping center, the population was insufficient to sustain two such centers and the commercial development should be located in Springtown. Three of the four council members present felt that to allow the development of a shopping center on Bickford's property would frustrate the announced policy of promoting development of the Springtown area where land had already been zoned CN for a neighborhood commercial center.

Thereafter, at the request of the City Council, the city manager wrote to Tradewell Stores, Inc., urging that Tradewell consider locating its store in the proposed Springtown shopping complex. The letter expressed the unanimous view of the City Council that the northeast sector of Livermore (wherein respondent's property is located) needed neighborhood shopping accommodations.

The trial court found that the City Council, in denying respondent's application for rezoning, failed to make findings of fact as required by California law and by the Livermore Zoning Ordinance. The court further found that the purpose in denying respondent's application was to encourage development of the Springtown CN zoned property by eliminating a competitive economic threat to such property, and that the council's decision was not predicated upon considerations of public health, welfare, safety or morals. The court concluded that the refusal of the City to rezone its property was arbitrary and capricious, unconstitutionally discriminatory against Bickford, and denied it equal protection of the laws.

Appellant contends that the decision of the City Council in refusing to rezone respondent's property from a residential to a commercial classification was a valid exercise of the police power, and hence did not constitute an abuse of discretion or a denial of equal protection. It is also argued that the council was not required to make findings in support of its decision. We agree. We have concluded that the City Council acted reasonably in denying respondent's rezoning application and that the writ of mandamus should have been denied.

I. In denying respondent's application for zoning, the City Council did not make findings except to adopt the recommendation of the Planning Commission. Findings are required in actions to review quasi-judicial activities of administrative agencies pursuant to Code of Civil Procedure section 1094.5 (administrative mandamus). (Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 515--517, 113 Cal.Rptr. 836, 522 P.2d 12.) The zoning of real property by a city, however, is legislative function, not a quasi-judicial activity, and is therefore reviewable by ordinary, or so-called traditional, mandamus pursuant to Code of Civil Procedure section 1085. (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 34, fn.2, 112 Cal.Rptr. 805, 520 P.2d 29; San Diego Bldg. Contractors Assn. v. City Council (1974)13 Cal.3d 205, 212, fn.5, 118 Cal.Rptr. 146, 529 P.2d 570; Lockard v. City of Los Angeles (1949) 33 Cal.2d 453, 202 P.2d 38; Johnston v. City of Claremont (1958) 49 Cal.2d 826, 323 P.2d 71; Tandy v. City of Oakland (1962) 208 Cal.App.2d 609, 612, 25 Cal.Rptr. 429.) As to these legislative functions of an administrative agency, findings are not required. (Topanga Assn. for a Scenic Community v. County of Los Angeles, supra, 11 Cal.3d at p. 517, 113 Cal.Rptr. 836, 522 P.2d 12.) Respondent cites Fasano v. Board of Commissioners (1973), 264 Or. 574, 507 P.2d 23, wherein the Oregon Supreme Court held that municipal zoning actions short of comprehensive revision of the zoning ordinance are judicial in character. The rule in California, however, is clearly to the contrary. Therefore, it is concluded that a city council in enacting or amending zoning ordinance is not required to make express findings of fact as to the public purpose of the ordinance or its relation to the police power. (8 McQuillin, Municipal Corporations (3d ed. rev. 1976) Zoning, § 25.18, p. 47.)

Section 30.42 of the Livermore Municipal Code, 1959, provides: 'In order to amend the (Zoning) Ordinance the City Council shall find the proposed amendment is in conformance with the General Plan of the City of Livermore and that public necessity, convenience and general welfare require the adoption of the proposed amendment.' The ordinance is inapplicable under the facts of this case in that the City Council rejected the proposed zoning. The ordinance does not require a finding where the zoning is not adopted. In any event, in adopting the Planning Commission's recommendation, the City Council in fact found that the public interest, convenience and general welfare did not require the adoption of the CN zoning. Such was a clear statement of the council's basis for denying the zoning application.

II. It is fundamental that zoning ordinances, when reasonable in object and not arbitrary in operation, constitute a justifiable exercise of the police power. (Miller v. Board of Public Works (1925) 195 Cal. 477, 234 P. 381; Lockard v. City of Los Angeles (1949) 33 Cal.2d 453, 202 P.2d 38.) In determining whether a particular ordinance represents a valid exercise of the police power, the courts 'simply determine whether the statute or ordinance reasonably relates to a legitimate governmental purpose.' (G & D Holland Construction Co. v. City of Marysville (1970) 12 Cal.App.3d 989, 994, 91 Cal.Rptr. 227, 229.) Every intendment is in favor of the validity of the exercise of the police power, and even though a court may differ from the determination of the legislative body, the ordinance will be upheld so long as it bears substantial relation to the public health, safety, morals or general welfare. (Wilkins v. City of San Bernardino (1946)29 Cal.2d 332, 337, 338--339, 175 P.2d 542; Miller v. Board of Public Works, supra, 195 Cal. at p. 490, 234 P. 381; Town of Los Altos Hills v. Adobe Creek Properties, Inc. (1973) 32 Cal.App.3d 488, 508, 108 Cal.Rptr. 271.)

The enactment of a zoning ordinance is a legislative function and is presumptively valid. The presumption may be upset if the evidence compels a conclusion that the ordinance is, as a matter of law, unreasonable or invalid. (Lockard v. City of Los Angeles, supra, 33 Cal.2d 453, 202 P.2d 38; Orinda Homeowners Committee v. Board of Supervisors (1970) 11 Cal.App.3d 768, 775, 90 Cal.Rptr. 88.) A zoning ordinance is unconstitutional only if no substantial reason exists to support the determination of the city council. If the reasonableness of the ordinance is reasonably debatable, the ordinance must be upheld. (Reynolds v. Barrett (1938) 12 Cal.2d 244, 249, 83 P.2d 29; Town of Los Altos Hills v. Adobe Creek Properties, Inc., supra, 32 Cal.App.3d at p. 499, 108 Cal.Rptr. 271.)

In Lockard v. City of Los Angeles, supra, the court stated: ...