Essick v. City of Los Angeles

• Decision Date: 13 January 1950
• Court: California Supreme Court
• Parties: ESSICK et al. v. CITY OF LOS ANGELES et al. L. A. 20835.

Page 492

213 P.2d 492

34 Cal.2d 614

ESSICK et al. v. CITY OF LOS ANGELES et al.

L. A. 20835.

Supreme Court of California, in Bank.

Jan. 13, 1950.

As Modified on Denial of Rehearing Feb. 8, 1950.

Carl W. Barrow, Los Angeles, for appellants.

Morris Lavine, Los Angeles, as amicus curiae on behalf of appellants.

Ray L. Shesebro, City Attorney, Bourke Jones and Roger Arnebergh, Assistant City Attorneys, Los Angeles, Ugene U. Blalock, Harold S. Morrison, Glendale, Towson T. MacLaren, Guy Richards Crump and Ralph W. Evans, Los Angeles, for respondents.

Donald J. Dunne, Los Angeles, as amicus curiae on behalf of respondents.

SCHAUER, Justice.

Plaintiffs appeal from a judgment of dismissal of their action for declaratory relief against the City of Los Angeles, the individual members of the council of such city, and Forest Lawn Company, a corporation (hereinafter terned, respectively, the city, the council, and the company). By such action plaintiffs sought to have declared null and void because allegedly violative of various sections of the city charter certain ordinance provisions and one resolution passed by the council, having to do in general with the granting of 'conditional use permits' under the 'Comprehensive Zoning Plan' of the city and in particular with the granting of such a permit to the company. For the reasons hereinafter stated, we have concluded that the judgment should be modified in form as hereinafter specified and, as so modified, affirmed. Plaintiffs also attempt to appeal from the court's order granting defendants' motions to dismiss the action; such order, having directed that judgment of dismissal be prepared, is not appealable and the attempted appeal therefrom will be dismissed. (See McColgan v. Jones, Hubbard & Donnell, Inc. (1938), 11 Cal.2d 243, 78 P.2d 1010; 2 Cal.Jur. 156-159.)

The Pleadings.

Plaintiffs in their complaint (first amended) allege as follows: They are qualified voters and electors of the city. Under Ordinance No. 90,500 passed by the council in March, 1946, and known as the Comprehensive Zoning Plan of the city, certain land owned by plaintiffs together with some 486 acres of land owned by the company was designated as falling within the same 'continuous and unbroken' R1 One Family Zone. Plaintiffs sue for themselves and 'for the benefit of all the other woners of real property within the said R1 One Femily Zone.' No cemeteries 'are to be located within areas so zoned as R1 One Family Zones except that a procedure for the obtaining of a permit for the 'Conditional Use' for cemetery purposes of real property so zoned as an R1 One Family Zone' is established by subsection C of section 12.24 of Ordinance 90,500. In February, 1947, the council 'purportedly' passed Ordinance No. 91,503, section 20 of which amends subsection C of section 12.24 ¹ of Ordinance 90,500. Acting under the provisions of subsection C as so amended, the company thereafter filed with the City Planning Commission an application for a 'Conditional Use' for cemetery purposes of its property mentioned above, the commission denied the application, the company appealed to the council, and the council, in March, 1948, 'purported' to pass a resolution reversing the action of the commission and granting the application of the compnay. Pursuant 'to said resolution * * * the * * * Company has commenced the construction of a cemetery' upon its property, the creation and maintenance of which will diminish the value, use, and enjoyment of real property owned by the other property owners, including plaintiffs, within the same R1 One Family Zone. Section 12.24 of Ordinance 90,500, section 20 of Ordinance 91,503 (amending subsection C of section 12.24), and the resolution granting the company's application are pleaded in full in the complaint, and are averred to be in conflict with certain provisions of the city charter. Plaintiffs allege, finally, that an actual controversy exists between themselves and defendants relating the their legal rights and duties arising out of the resolution and pray that the court declare null and void the resolution and the ordinance provisions pursuant to which it was passed.

Defendants filed motions of dismiss the action on the grounds that (1) the court had no jurisdiction of the subject of the action for the reason that the complaint presented no justiciable controversy, and (2) it was not necessary or proper at that time for the court to make a declaration or determination of the rights and duties of the parties under the circumstances alleged. See sec. 1061, Code of Civ.Proc. The motions were granted, judgment was entered accordingly, and this appeal followed.

Pertinent Charter Provisions.

At the times material to this litigation, section 97 of the city charter provided that 'No ordinance, order or resolution shall be adopted by the Council authorizing, ordering or involving any of the following enumerated matters, unless and until such ordinance, order or resolution shall have first been submitted to the City Planning Commission for report and recommendation * * * (c) The creation of districts or zones for the purpose of regulating the use of lands, * * * or the changing, amending or altering or any such zones, districts or regulations.

'It shall be the duty of the City Planning Commission, within thirty (30) days from the receipt of any such proposed ordinance, order or resolution, to make and file its report and recommendation thereon with the Council, and should said Planning Commission recommend against the approval of the matter involved, the Council may adopt such ordinance only upon a two-thirds vote of the whole of said Council. Should the City Planning Commission recommend approval or fail to make any recommendation within the time mentioned herein, said Council may adopt such ordinance, order or resolution by a majority vote of the whole Council * * *' (Italics added.)

Section 98 ² of the charter created the office of Zoning Administrator and gave him his power, among other things, to 'investigate, hear and determine all applications for variances from the rules, regulations, restrictions and requirements of the zoning ordinances and (to) * * * grant such variances * * * when practical difficulties, unnecessary hardships or results inconsistent with the general purposes of the zoning regulations may result' otherwise. The Administrator's determination 'shall be final except that apppeals therefrom may be taken to the Board of Zoning Appeals,' which by section 99 of the charter was given the power to 'affirm, change or modify the * * * determination * * * subject to the same limitations as are placed upon the Zoning Administrator.'

Plaintiffs contend that the charter has thus 'provided for two distinct procedures whereby an owner of real property might obtain relief from onerous zoning restrictions, rules and regulations as they limit him in the use and enjoyment of his property'; that a third procedure, in conflict with the charter, is set forth in subsection C of section 12.24 of Ordinance 90,500, as amended by section 20 of Ordinance 91,503; and that such sections, as well as the council's resolution adopted pursuant thereto, granting the company a conditional use permit, are null and void.

It appears, however, that so far as here material the charter contemplates three situations, or means (apparently mutually exclusive since procedure for each is detailed in the charter), under or by which action relative to zoning matters may be taken: (1) The 'creation' of zones or 'the changing, amending or altering of any such zones' (sec. 97(c)); (2) the 'granting of variances' (sec. 98(c); (3) 'changes to zoning ordinances' (sec. 98(b). Several problems are thus presented: First, does the granting of 'conditional use' permits fall within any of the three situations so designated by the charter? Second, if so, does the procedure laid down by the ordinances attacked by plaintiff comply with charter provisions? Third, if either the granting of conditional use permits or the ordinance procedure is not expressly authorized by the charter, is either or are both forbidden by it? Plaintiffs concede that the charter operates 'as a limitation and not a grant of power, and hence should be strictly construed (against the limitation). The city charter of the city of Los Angeles comes within this rule.' (Thille v. Board of Public Works of City of Los Angeles (1928), 82 Cal.App. 187, 189, 255 P. 294, 295; see also West Coast Advertising Co. v. City and County of San Francisco (1939), 14 Cal.2d 516, 522, 95 P.2d 138; City of Oakland v. Williams (1940), 15 Cal.2d 542, 549-550, 103 P.2d 168.) Section 2 of the charter itself provides that 'The City of Los Angeles * * * shall have the right and power, subject to the restrictions in this charter contained: * * * (4) To make and enforce all laws and regulations in respect to municipal affairs, subject only to the restrictions and limitations provided in this charter * * *' The charter further states, in section 21, that 'All legislative power of the city except as herein otherwise provided is vested in the Council and shall be exercised by ordinance, subject to the power of veto or approval by the Mayor as herein set forth. Other action of the Council may be by order or resolution, upon motion.' (Italics added.)

Plaintiffs have not attacked the procedure followed in the adopting either of Ordinance 90,500 hereinafter sometimes referred to as the Zoning Plan of the city under which they claim protection, or of Ordinance 91,503 (which amends, or 'changes,' subsection C of section 12.24 of the Zoning Plan). Consequently we must assume that each of such ordinances was submitted to the plainning commission for consideration prior to adoption by the council (charter sections 97(c), 98(b)), and is valid insofar as concerns adoption procedure.

The 'Changing, Amending or Altering' of a Zone. (Charter Section 97).

Plaintiffs urge...