G & D Holland Construction Co. v. City of Marysville

• Decision Date: 17 November 1970
• Citation: 12 Cal.App.3d 989,91 Cal.Rptr. 227
• Court: California Court of Appeals Court of Appeals
• Parties: G & D HOLLAND CONSTRUCTION COMPANY, a corporation, Don Holland and Coburn Haskell, Petitioners and Appellants, v. The CITY OF MARYSVILLE, J. C. Onderek, the Common Council of the City of Marysville, Respondents and Real Parties in Interest and Respondents. Civ. 12699.

Page 227

91 Cal.Rptr. 227

12 Cal.App.3d 989

G & D HOLLAND CONSTRUCTION COMPANY, a corporation, Don Holland and Coburn Haskell, Petitioners and Appellants, v. The CITY OF MARYSVILLE, J. C. Onderek, the Common Council of the City of Marysville, Respondents and Real Parties in Interest and Respondents.

Civ. 12699.

Court of Appeal, Third District, California.

Nov. 17, 1970.

Rehearing Denied Dec. 15, 1970.

Rich, Fuidge, Dawson, Marsh, Morris, Sanbrook & Noonan, Marysville, for petitioners and appellants.

Steel & Arostegui, Marysville, for respondents.

FRIEDMAN, Associate Justice.

There are triable issues of fact in this mandate proceeding and the trial court erred in granting a summary judgment in favor of respondents, the City of Marysville and its officials.

Subject of the controversy is a land use proposal involving a square block of real estate in a section of the city known as East Marysville. Petitioners seek a writ of mandate to compel issuance of a building permit for an apartment house development on the property. The project, to consist of six buildings containing 76 apartment units, is to be financed under a provision of the National Housing Act authorizing government interest subsidies on housing designed for 'lower income families.' (12 U.S.C.A. § 1715z--1, Public Law 90--448, tit. II, § 201(a); 82 Stat. 498.)

The city's basic zoning ordinance, of which we take judicial notice, was adopted in 1963. At that time the block in question was zoned R--3. That designation signified a 'neighborhood apartment district,' permitting a maximum of four family dwellings per building. In 1966 the property owner requested that this single block be rezoned to R--4 (general apartment district) in order to accommodate a 'garden type' apartment house. After a hearing the municipal planning commission found that R--4 was the 'highest and best use' of the property and was 'consistent with the present growth and development in the immediate area * * *.' The city council acceded to the request and adopted an ordinance rezoning the block to R--4. The garden type apartment project did not materialize.

The disputed block is not part of a larger R--4 neighborhood but is individually zoned. Immediately to its north and east is a neighborhood zoned R--1 (single family residence district). A number of other R--4 areas, ranging from 1 to 10 square blocks in size, also adjoin the R--1 neighborhood. An R--3 area lies in the Immediate vicinity. Two or three blocks distant and also juxtaposed to the R--1 neighborhood is an area zoned C--1 (neighborhood shopping district).

On January 5, 1970, petitioners presented their building plans to the city's building official and applied for a building permit. There appears to be no dispute but that the project fitted the R--4 zoning classification. On January 14 a group of citizens appeared at a meeting of the city planning commission, objecting to petitioners' proposal. The next day, January 15, the city engineer issued a letter addressed to 'residents of the City of Marysville' declaring that storm drainage had entered the city's sanitary sewers the previous day and had seriously overloaded the sewerage system. On January 16 a special meeting of the city council was held with three of the five council members present. Orally and by petition numerous citizens protested petitioners' project, declaring that it would depress neighborhood property values. The city's building official informed the council that petitioners' project could be brought into compliance with the building code. The council adopted a resolution directing the building official temporarily to withhold the building permit.

On January 20 petitioners appeared before the building official, made minor plan revisions suggested at an earlier meeting and tendered the permit fee. The fee was not accepted. On January 23 the City council met again, four members being present. At that meeting the council, with the concurrence of the members present, adopted an ordinance returning the single block in question to the R--3 classification it had occupied prior to 1966. The ordinance declared its immediate effectiveness as an urgency measure. ¹

The petition for writ of mandate alleges that the R--3 zoning classification forestalls petitioners' development, which consists of buildings of more than four units; alleges that the sole purpose of the ordinance of January 23, 1970, was frustration of the project; alleges that no valid reason existed to justify rezoning this property from R--4 to R--3; alleges that the only urgency attending the zoning change was the project itself and the city council's desire to frustrate its construction.

The aim of the summary judgment procedure is to discover, through affidavits, whether the parties possess evidence requiring the weighing procedure of a trial; the motion may be granted only if no triable issue of fact appears; the court may not pass upon the issue itself. (Wilson v. Bittick, 63 Cal.2d 30, 34, 45 Cal.Rptr. 31, 403 P.2d 159.) The city's motion for summary judgment was premised upon the theory that no triable issue of fact existed, because one or more police power objectives (e.g., the prevention of sewer overloading) justified the interim ordinance and precluded further judicial review of its constitutionality.

In inquiring into the facts forming the constitutional basis for exercises of the police power, the courts simply determine whether the statute or ordinance reasonably relates to a legitimate governmental purpose. (Wilke & Holzheiser, Inc. v. Dept. of Alcoholic Bev. Control, 65 Cal.2d 349, 359, 55 Cal.Rptr. 23, 420 P.2d 735; Consolidated Rock Products Co. v. City of Los Angeles, 57 Cal.2d 515, 522, 20 Cal.Rptr. 638, 370 P.2d 342.) City and county zoning ordinances are manifestations of the local police power conferred by section 7 (formerly section 11) of article XI of the State Constitution. (Miller v. Board of Public Works, 195 Cal. 477, 482--483, 234 P. 381; People v. Johnson, 129 Cal.App.2d 1, 5--6, 277 P.2d 45.) Thus, upon a claim that a comprehensive zoning ordinance unconstitutionally interferes with the use of private property, the ordinance is to be tested not by the judges' opinions of its wisdom or necessity, 'but solely by the answer to the question is there any reasonable basis in fact to support the legislative determination of the regulation's wisdom and necessity?' (Consolidated Rock Products Co. v. City of Los Angeles, supra, 57 Cal.2d at p. 522, 20 Cal.Rptr. at p. 642, 370 P.2d at p. 346; see also, Acker v. Baldwin, 18 Cal.2d 341, 344, 115 P.2d 455; Miller v. Board of Public Works, supra, 195 Cal. at p. 490, 234 P. 381.)

The principle limiting judicial inquiry into the legislative body's police power objectives does not bar scrutiny of a quite different issue, that of discrimination against a particular parcel of property. 'A city cannot unfairly discriminate against a particular parcel of land, and the courts may properly inquire as to whether the scheme of classification has been applied fairly and impartially in each instance.' (Wilkins v. City of San Bernardino, 29 Cal.2d 332, 338, 175 P.2d 542, 547.)

Every intendment favors the legislative body's action, which will not be overthrown in the absence of physical facts requiring the conclusion that the ordinance is unreasonable and invalid as a matter of law. (Wilkins v. City of San Bernardino, supra, 29 Cal.2d at p. 338, 175 P.2d 542, at p. 547; Anderson v. City Council, 229 Cal.App.2d 79, 91, 40 Cal.Rptr. 41.) Nevertheless, where 'spot zoning' or other restriction upon a particular property evidences a discriminatory design against the property user, the courts will give weight to evidence disclosing a purpose other than that appearing upon the face of the regulation. (Sunset View Cemetery Assn. v. Kraintz, 196 Cal.App.2d 115, 122--124, 16 Cal.Rptr. 317; Kissinger v. City of Los Angeles, 161 Cal.App.2d 454, 460--462, 327 P.2d 10; Munns v. Stenman, 152 Cal.App.2d 543, 552--554, 314 P.2d 67; County of San Diego v. Williams, 126 Cal.App.2d 804, 808--809, 272 P.2d 519; Bernstein v. Smutz, 83 Cal.App.2d 108, 117--122, 188 P.2d 48; see also, Russian Hill Improvement Assn. v. Board of Permit Appeals, 66 Cal.2d 34, 37--38, fn. 5, 56 Cal.Rptr. 672, 423 P.2d 824; Reynolds v. Barrett, 12 Cal.2d 244, 251, 83 P.2d 29; 1 Anderson, American Law of Zoning (1968) § 5.05, p. 248, text accompanying fn. 17; 1 Rathkopf, The Law of Zoning and Planning (3d ed.) pp. 26--4 to 26--14.)

In support of its motion the City of Marysville had presented affidavits showing that in March 1969 it had established a Redevelopment Agency pursuant to the Community Redevelopment Law; ² that in September 1969 the city had employed a research firm to prepare an economic analysis of the city and data for a 'workable program' application to the federal Department of Housing and Urban Development, involving urban development and expansion of housing for low and moderate income families; that sewerage and drainage facilities in East Marysville had become seriously inadequate; that of the 1,485 acres of useable real estate in the city, 155 acres remained undeveloped. In opposition, petitioners filed a single affidavit alleging that the objecting citizens were concerned only with frustrating petitioners' project and revealing that in October 1969 the city engineer had indicated the availability of sewerage services for the project.

Absence of counter-affidavits contradicting all the city's declarations did not relieve the latter of the burden of establishing all the facts necessary to entitle it to a summary judgment. (Schroeter v. Lowers, 260 Cal.App.2d 695, 699, 67 Cal.Rptr. 270.) The city's affidavits displayed a series of abstract circumstances without demonstrating their relevance to the...