Hawkins v. County of Marin

• Decision Date: 21 January 1976
• Citation: 126 Cal.Rptr. 754,54 Cal.App.3d 586
• Court: California Court of Appeals Court of Appeals
• Parties: Louis F. HAWKINS et al., Plaintiffs and Appellants, v. COUNTY OF MARIN et al., Defendants and Respondents. PROVINCE OF THE HOLY NAME et al., Plaintiffs in Intervention and Respondents, v. Louis F. HAWKINS et al., Defendants in Intervention and Appellants. Civ. 37352.

Page 754

126 Cal.Rptr. 754

54 Cal.App.3d 586

Louis F. HAWKINS et al., Plaintiffs and Appellants, v. COUNTY OF MARIN et al., Defendants and Respondents.

PROVINCE OF THE HOLY NAME et al., Plaintiffs in Intervention and Respondents, v. Louis F. HAWKINS et al., Defendants in Intervention and Appellants.

Civ. 37352.

Court of Appeal, First District, Division 4, California.

Jan. 21, 1976.

Hearing Denied March 18, 1976.

Carrow, Jones, Applen & Forest, by Joseph A. Forest, Novato, for appellant, Louis F. Hawkins.

Douglas J. Maloney, Marin County Counsel, Thomas Hendricks, Asst. County Counsel, San Rafael, for respondent County of Marin.

Nelson, Boyd MacDonald & Tarrant, by Richard T. Tarrant, San Rafael, for respondent Catholic Social Services.

Heller, Ehrman, White & McAuliffe, by Richard L. Goff, San Francisco, for intervenors Ecumenical Assoc. for Housing.

EMERSON, ^* Associate Justice.

This is an appeal from an order granting summary judgment in favor of defendants and intervenors (respondents), which order further provided that plaintiffs' (appellants') complaint for declaratory relief, injunction and petition for writ of mandamus should be dismissed with prejudice.

Appellants are home owners in the Laurel Grove Canyon section of Kentfield, an unincorporated area in Marin County. Within the Canyon is a parcel of property, consisting of some 4.8 acres, known as the 'Priory.' That property, which is owned by respondent the Province of the Holy Name, contains a large building which formerly served as a seminary for the Dominican Fathers. Since November 1973, the building has been used by respondent Catholic Social Services of Marin as a housing facility for the elderly. The Priory and all surrounding land in the Laurel Grove Canyon has been zoned R--1 by the county. In addition, most of the Priory property has been given a B--2 designation, which restricts building site area to 10,000 square feet and otherwise regulates site dimensions. ¹

Catholic Social Services of Marin is the sponsor of a plan for constructing 102 units of housing for the elderly on the Priory property. The plan calls for remodeling the existing building on the property to provide some 26 units, along with kitchens and common rooms and constructing new buildings containing an additional 76 units. The project is to be subsidized by the Department of Housing and Urban Development under a federal program for encouraging the construction of low and moderate cost rental housing.

A use permit for the project was originally granted by the county zoning administrator on September 7, 1971. ² According to respondents, appellants herein then brought a lawsuit which, although apparently not pursued to judgment, resulted in a consensus that the permit was invalid under a county code section setting forth grounds for the issuance of use permits as it was then written. That section was later amended to include housing for low and moderate income persons among the land uses for which a use permit could be granted. ³ The director of Catholic Social Services then applied for a second permit, the validity of which is in issue in the case at bench.

This second application for a use permit was approved by the county zoning administrator on March 6, 1972. Louis F. Hawkins and other property owners appealed this action first to the county planning commission and then to the board of supervisors. Both appeals were rejected after hearings.

The use permit was actually granted on April 19, 1972. The permit contained various conditions relating to the number of units and residents permitted, design review, landscaping and the like. According to the testimony and declaration of the director of Catholic Social Services, several thousand dollars have been spent for architect's and other fees and for the installation of fire doors in the existing Priory building. However, no building permit for the project has yet been issued, nor does any start of construction appear to have occurred.

On April 16, 1974, nearly two years after the use permit was granted, appellants filed this action against the county. The complaint set forth two main theories of action. First, it was asserted that the Priory project was impermissible under the property's zoning. Second, it was contended that if the project was not thus impermissible, then the county's zoning regulations were inconsistent with its general plan. Relief was sought in the form of an injunction against issuance of a building permit for the project, a declaration that the proposed land use was illegal under applicable zoning regulations and that any use permit issued for it was null and void, and, as an alternative to such declaration, a writ of mandate to compel the county to make its zoning regulations consistent with its general plan. Appellants also applied for a preliminary injunction against issuance of a building permit and petitioned for a peremptory writ of mandate ordering the county immediately to harmonize its zoning and general plan.

Thereafter, a hearing was held on the application for a preliminary injunction and the petition for a peremptory writ. On January 13, 1975, the trial court filed a notice of intended decision denying this relief. ⁴ On February 7, 1975, respondents moved for summary judgment. From the order granting that motion, this appeal is taken. ⁵ Appellants first contend that the use proposed for the Priory is so inconsistent with the property's zoning that it can only be authorized by means of a formal change in that zoning. Therefore, it is asserted, the county's issuance of the conditional use prmit amounted to an invalid attempt to rezone the property without complying with the statutory requirements for effecting a zoning change. (See Gov.Code, §§ 65853--65857.) ⁶ Reliance is placed on cases which hold that an alteration of the land use restrictions applicable to a piece of property may constitute an invalid de facto rezoning. (City of Sausalito v. County of Marin (1970) 12 Cal.App.3d 550, 563--564, 566--567, 90 Cal.Rptr. 843; Millbrae Assn. for Residential Survival v. City of Millbrae (1968) 262 Cal.App.2d 222, 245--246, 69 Cal.Rptr. 261; see Johnston v. City of Claremont (1958) 49 Cal.2d 826, 835, 323 P.2d 71.)

However, it is a widely accepted rule that the issuance of a conditional use permit does not amount to a zoning change, and hence need not be effected in compliance with rezoning procedures. For example, in Essick v. City of Los Angeles (1950) 34 Cal.2d 614, 213 P.2d 492, the Supreme Court rejected the contention that the issuance of a conditional use permit authorizing the location of a cemetery in an R--1 zone constituted a zoning change within the meaning of a provision of the Los Angeles City Charter creating procedures for the making of such changes. (Id. at pp. 622--623, 624, 213 P.2d 492.) Similarly, in Case v. City of Los Angeles (1963) 218 Cal.App.2d 36, 32 Cal.Rptr. 271, a permit was validated which allowed the construction of an apartment complex in an R--1 zone. (Id. at p. 40, 32 Cal.Rptr. 271; see also Concerned Citizens of Palm Desert, Inc. v. Board of Supervisors (1974) 38 Cal.App.3d 257, 266, 113 Cal.Rptr. 328; Stoddard v. Edelman (1970) 4 Cal.App.3d 544, 553, 84 Cal.Rptr. 443; Wheeler v. Gregg (1949) 90 Cal.App.2d 348, 363, 203 P.2d 37.) ⁷ While the zoning administrator's decision to grant such a permit must be guided by establish criteria (Gov.Code, § 65901), a general welfare standard, such as exists here, ⁸ is sufficient. (Mitcheltree v. City of Los Angeles (1971)17 Cal.App.3d 791, 796, 95 Cal.Rptr. 76; Stoddard v. Edelman, supra, 4 Cal.App.3d 544, 548, 84 Cal.Rptr. 443.)

In any event, we deem further discussion of this, and related points raised by appellants, to be unnecessary. This attack upon the conditional use permit is barred by the statute of limitations set up by Government Code section 65907. ⁹

Seeking to avoid this conclusion, appellants assert that the disputed use permit was issued in violation of county ordinances and state statutes. They claim that a provision of the Marin County Code makes a permit issued under such circumstances 'null and void,' ¹⁰ and cite cases for the proposition that an unauthorized decision of an administrative agency is void and subject to collateral attack. (Aylward v. State Board, etc., Examiners (1948) 31 Cal.2d 833, 839, 192 P.2d 929; City and County of San Francisco v. Padilla (1972) 23 Cal.App.3d 388, 400, 100 Cal.Rptr. 223.) While neither of the cited cases considered the effect of a statute of limitations upon such an attack, other cases are referred to which state that a collateral attack on a void judgment can be brought at any time, notwithstanding the existence of a limitations period. (Estate of Eikerenkotter (1899) 126 Cal. 54, 55, 58 P. 370; Tatum v. Southern Pacific Co. (1967) 250 Cal.App.2d 40, 43, 58 Cal.Rptr. 238; City of Los Angeles v. Morgan (1951) 105 Cal.App.2d 726, 732, 234 P.2d 319; Garrison v. Blanchard (1932) 127 Cal.App. 616, 620, 16 P.2d 273.)

The cases last cited, however, deal with Judgments void due to jurisdictional defects apparent on the face of the record or other special defects. The doctrine of these cases should not be extended to those involving the review of conditional use permits allegedly not issued in conformity with statutory requirements. Such an extension would vitiate the unambiguous limitations provision of section 65907. That section provides (see fn. 8, Supra), that Any action to attack, review, void or annul a decision to issue a conditional use permit must be brought within the prescribed period. Appellants should not be permitted to evade this requirement by means of technical arguments concerning the effectiveness of the challenged permit. (See Ferdig v. State Personnel Bd. (1969) 71 Cal.2d 96, 109, 77 Cal.Rptr. 234, 453 P.2d 728.)

Appellants point out that the trial court made no mention of the statute of limitations in its notice of intended...