Great Western Sav. & Loan Assn. v. City of Los Angeles

• Decision Date: 29 March 1973
• Court: California Court of Appeals Court of Appeals
• Parties: GREAT WESTERN SAVINGS & LOAN ASSOCIATION, a California corporation, Petitioner and Respondent, v. The CITY OF LOS ANGELES, a municipal corporation, et al., Respondents and Appellants. Civ. 39599.

Page 359

107 Cal.Rptr. 359

31 Cal.App.3d 403

GREAT WESTERN SAVINGS & LOAN ASSOCIATION, a California corporation, Petitioner and Respondent, v. The CITY OF LOS ANGELES, a municipal corporation, et al., Respondents and Appellants.

Civ. 39599.

Court of Appeal, Second District, Division 5, California.

March 29, 1973.

As Modified April 16, 1973.

E. Arnold Oppenheim, Beverly Hills, for petitioner and respondent.

Roger Arnebergh, City Atty., Los Angeles, John Daly and Claude E. Hilker, Asst. City Attys., and George G. Buchanan, Deputy City Atty., for respondents and appellants.

Edythe Jacobs, Los Angeles, as amicus curiae on behalf of appellants.

ASHBY, Associate Justice.

The City of Los Angeles, the City Council, and Rex E. Layton, the City Clerk, appeal from a judgment for respondent, hereinafter referred to as developer, granting a peremptory writ of mandate ordering the acceptance, approval and recordation of the final map of Tract 30561.

On September 26, 1969, the City Council of the City of Los Angeles adopted the action of the City Planning Commission and approved tenative tract map 30561. The City Council found that based on the documents, testimony, files, and record before it, objections to the approval of Tract 30561 on the basis of tract incompatibility, inadequate access, improper drainage, and hazardous geologic conditions could not be sustained. However, the City Council did impose an additional condition that required respondent (developer) to stabilize a steep nonconforming cut slope along the northwesterly boundary of lot 36 of the tract in a manner satisfactory to the Department of Building and Safety. ¹

On June 25, 1970, the Building and Safety Department approved developer's grading plans and issued a grading permit. On July 1, 1970, the Building and Safety Department notified the Bureau of Engineering that Tract 30561 had been cleared for recordation.

On March 15, 1971, developer filed the final map for Tract 30561 and requested its acceptance and approval for recordation. That same day City Engineer, Lyle A. Pardee, transmitted the tract map to the City Council, together with the Certificate of Compliance and the required surety bonds for the attached riders. Mr. Pardee stated that all applicable conditions of the tentative map had been satisfied and he recommended to the council that the final map of Tract 30561 and the accompanying bond with riders be approved. ²

On March 24, 1971, the City Council adopted a motion disapproving ³ the final map of Tract 30561 and set forth the following reasons for disapproval:

'1. The developer has failed to comply with the condition imposed by the City Council in its motion modifying and approving the tentative map on September 26, 1969 in that the developer has failed to rectify the hazardous slopes and conditions on the lots immediately adjoining the northwesterly side of original Lot 43(36).

'2. The developer withheld vital information from the Council at the time consideration was given to the approval of the tentative map.

'3. Potential hazards are created by this tract.

'4. The offsite roadway widening improvements will have too drastic affect (sic) upon adjoining property owners.

'5. The developer failed to diligently pursue his work as promised.

'6. The temporary debris basin constructed in the course of development of this tract has proven inadequate and unsafe and will not adequately perform.' ⁴

On May 5, 1971, developer filed a petition for writ of mandate in the superior court contending that the City Council possesses no discretionary right permitting that body to disapprove the final map of tract number 30561. A trial was held during which the court took testimony from various city officials, including City Councilman Potter who made the motion to disapprove the final map. ⁵ The court held that the developer had not failed to comply with any condition imposed by the City Council ⁶ and therefore the developer was entitled under the law to have the final map approved and accepted for recordation. ⁷ The court ordered the City Council to approve the final map and accept it for recordation and ordered the City Clerk of the City of Los Angeles to properly record the map. ⁸

No factual matters have been raised by this appeal. The issues before us are strictly questions of law. Appellants state the basic question presented by this appeal as follows: 'Do the courts of this state have the jurisdiction to mandate the Los Angeles City Council under the facts of this case to approve the subject final subdivision tract map or is the ultimate determination thereon a matter solely within the discretion of the governing body?'

Appellants' keystone contention is that the approval and acceptance for filing of the final tract map is within the sole discretion of the City Council. All of appellants' other contentions are built on this premise.

I THE NATURE OF THE CITY COUNCIL'S DUTY

Appellant's contend that it is within the sole discretion of a local governing body to approve or disapprove a final subdivision tract map. In taking this position, appellants suggest that the City Council could refuse to approve a final tract map even if the applicable state and local laws and the conditions of the tentative map were complied with. This contention is wholly without merit.

Business and Professions Code section 11611 ⁹ provides in part: 'The governing body Shall at its next meeting or within a period of not more than 10 days after the filing Approve the map if it conforms to all the requirements of this chapter and of any local ordinance applicable at the time of approval of the tentative map, or any rulings made thereunder. ( ) The time limit for the approval of such map may be extended by mutual consent of the subdivider and the governing body. If no action is taken within such time limit or within the time to which it has been extended by such mutual consent, The map, if it conforms to all the requirements above set forth, shall be deemed to be approved, and it shall be the duty of the clerk of the governing body thereupon to certify the approval.' (Emphasis added.)

The applicable local ordinance is section 17.07 of the Los Angeles Municipal Code. Subdivision (B) of that section provides in part as follows:

'PROCEDURE. A Final Map shall be prepared and filed with the City Engineer in compliance with the provisions of this article. Final Maps shall conform substantially to the approved Tentative Maps. . . .

'1. The Final Map Shall be accepted ¹⁰ by the City Council provided:

'(a) The necessary improvements as set forth in the approval of the Tentative Map have been installed and approved by the City, or provided the subdivider submits satisfactory improvement plans together with the necessary guarantee that the improvements will be installed;

'(b) The required map checking fees have been paid by the subdivider;

'(c) All checking has been completed by the various departments and public agencies; and

'(d) Taxes, liens and special assessments have been paid, or such payment guaranteed.

'2. No Final Map shall be recorded until the required improvements have been installed or agreed to be installed.' (Emphasis added.)

The court in Ellis v. City Council, 222 Cal.App.2d 490, 35 Cal.Rptr. 317, dealt with the performance of a mandatory duty. The court held that a building official had a mandatory duty to issue a building permit when the applicant had complied with all legal requirements upon which the issuance was conditioned. The court, at page 497, 35 Cal.Rptr. at page 321, held: 'Appellant next contends that the evidence conclusively established that the denial of appellant's application for a renewal or for a new building permit was both a ministerial and an intentional act and that the trial court's findings to the contrary are therefore erroneous. We agree. In Palmer v. Fox (1953) 118 Cal.App.2d 453, 258 P.2d 30, the plaintiffs, having fully complied with all legal requirements, applied to the deputy chief engineer of the City of Palos Verdes Estates for the issuance of a building permit. The deputy, although fully empowered to grant such a permit, refused to do so. In affirming the judgment granting plaintiffs a writ of mandate, the court held that the deputy had no right or duty to withhold the permit when plaintiffs had complied with the prerequisites for its issuance. 'When an official is required and authorized to do a prescribed act upon a prescribed contingency, his functions are ministerial only, and mandamus may be issued to control his action upon the happening of the contingency.' (118 Cal.App.2d 458, 258 P.2d p. 34.) (To the same effect, see Munns v. Stenman (1957) 152 Cal.App.2d 543, 557, 314 P.2d 67.)'

It is clear that the governing body's function is administrative, ministerial and mandatory where the final tract map complies with the state and local laws and has complied with the conditions to the tentative tract map. The fact that approval is automatic if the governing body takes no action within the ten-day period is significant in that the automatic approval provided for in Business and Professions Code section 11611 is effective only if the final tract map 'conforms to all the requirements above set forth.' The mere fact that the governing body takes no action within the prescribed time is not sufficient. The final map must be in conformance but if it is, it is approved even without action by the governing body to either approve the final map or determine its conformance to laws and conditions.

As a part of appellants' primary contention that the acceptance and approval of a final tract map is within the sole discretion of the City Council, appellants argue that the council has the sole and exclusive power to determine whether or not the final tract map conforms to the requirements of the state Subdivision Map Act and the local subdivision ordinance and, further, whether the conditions to the tentative tract map have...