Hilton v. Board of Supervisors

• Decision Date: 19 May 1970
• Citation: 86 Cal.Rptr. 754,7 Cal.App.3d 708
• Court: California Court of Appeals Court of Appeals
• Parties: Francis W. HILTON, Jr., et al., Petitioners and Appellants, v. The BOARD OF SUPERVISORS OF the COUNTY OF SANTA BARBARA et al., Respondents; Minnie E. McNUTT, Ethel J. Herold, Edith A. Kennel, Real Parties in Interest, Goleta Valley Housing Committee, a nonprofit California corporation, Intervener. Civ. 35308.

Page 754

86 Cal.Rptr. 754

7 Cal.App.3d 708

Francis W. HILTON, Jr., et al., Petitioners and Appellants, v. The BOARD OF SUPERVISORS OF the COUNTY OF SANTA BARBARA et al., Respondents Minnie E. McNUTT, Ethel J. Herold, Edith A. Kennel, Real Parties in Interest Goleta Valley Housing Committee, a nonprofit California corporation, Intervener.

Civ. 35308.

Court of Appeal, Second District, Division 1, California.

May 19, 1970.

Enlow & Haws and E. Jerald Haws, Santa Barbara, for appellants.

George P. Kading, County Counsel, and Susan Trescher, Deputy County Counsel, for respondents.

Goux & Romasanta and J. F. Goux, Santa Barbara, for Real Parties in Interest.

Eckert & O'Gorman and C. Brian O'Gorman, Goleta, for intervener.

LILLIE, Associate Justice.

As owners of real property within the area involved, petitioners sought by mandamus (§ 1085, Code Civ.Proc.) to compel respondent supervisors to rescind a rezoning amendment to a county zoning ordinance. General demurrers to the petition as amended ¹ having been interposed by respondents, real parties in interest and an intervener, the same were sustained without leave to amend. Petitioners appeal from the ensuing judgment dismissing the action.

The property affected by the change in zoning comprises approximately 5 acres located in Goleta; formerly it was zoned 6--R--2, Two Family Residential District permitting duplexes on net lot acres of 7000 square feet. By an application filed with the Planning Commission on February 6, 1969, Goleta Valley Housing Committee (the intervener here) requested a change in zoning to DR--20, Design Residential District permitting 20 dwelling units per gross acre. Following noticed hearings before the Planning Commission and the Board of Supervisors the property, by an amending ordinance, was ultimately rezoned DR--16 which included, under provisions of said ordinance, a Development Plan permitting 15 townhouses or apartments per acre but not in excess of 75 units for the entire property.

According to the amended petition, at all pertinent times there was in effect a certain county zoning ordinance No. 661, article XIII thereof providing that such ordinance or any of its provisions could be amended in accordance with the procedure set forth in the Conservation and Planning Act (Gov.Code, § 65500, et seq.); referred to were amendment procedures set forth in the ordinance, namely, the initiation of such amendment by a verified petition of one or more property owners affected thereby, the payment of a non-refundable fee by the petitioner to cover administrative expenses (including sending out of notices) and other matters not here material. Although, as alleged in the petition, published and timely notice pursuant to section 65854(a) of the Government Code was given of the public hearing before the Planning Commission, it was also alleged that two notices were subsequently Mailed to all property owners within 300 feet of the property proposed to be rezoned, these subsequent notices, being given pursuant to the further provision in section 65854(c) that 'In addition to notice by publication, a county or city may give notice of the hearing in such other manner as it may deem necessary or desirable.' While the published notice did not so err, the first of the mailed notices erroneously stated that the proposed amendment would allow '20 dwelling units per gross Area,' while the second (and subsequent) mailed notice corrected such error by stating that the amendment would permit '20 dwelling units per gross Acre.' The pleading thereafter alleges that the Planning Commission disregarding 'the above stated misleading and confusing proliferation of conflicting notices,' went ahead with its hearing on the noticed date; that at such hearing evidence presented in opposition to the proposed rezoning, consisting (among other things) of the massive traffic problems to be created by the potential presence of hundreds of children in a heavy traffic area, was 'disregarded'; that instead, the Planning Commission accepted 'in toto the barest evidence of alleged 'low cost' housing from the alleged 'corporate' petitioner,' the intervener here being so described since the application was filed in the name of a non-existing entity, unregistered with the Division of Corporations and with no fictitious name application on file, and as a result of these latter omissions, the 'public' was unable to determine with whom it was dealing; and that as a further result of all the above errors and omissions, 'the 'public' was confused, bewildered, disoriented and misled, was unable to retain the services of competent counsel to aid them at the 'public' hearing, and their property rights and their economic assets, their homes and familes were affected without due process of law'; that the above notwithstanding, although called to its attention, the rezoning recommendations of the Planning Commission were forwarded to respondent Board of Supervisors which, after proper notice thereof, proceeded with a public hearing. After the reception of evidence at such hearing, the supervisors (with one dissent) voted to adopt the amending ordinance sought to be set aside.

With respect to the proceedings before respondent Board, it is alleged that they were not had as prescribed by law by reason of the deficiencies and errors in procedure above mentioned, all of which were brought to the Board's attention; that no substantial evidence was produced by any person properly before the Planning Commission tending to show any reason why the rezoning should take place, and petitioners' claims in that regard were arbitrarily disregarded by respondent Board; and that the evidence presented to the Board overwhelmingly favored a denial of the rezoning amendment, the ignoring of which evidence amounted to a prejudicial abuse of discretion on the part of respondent body.

While special demurrers on the ground of unintelligibility and uncertainty were interposed by certain of the demurrants, the court did not rule thereon, sustaining without leave to amend the general demurrers filed by all three appearing respondents on the grounds that (1) the amended petition failed to state a cause of action and (2) the court lacked jurisdiction of the subject matter of the amended pleading. For the following reasons we think that the court's ruling was proper.

At the outset it is settled that the sufficiency of a petition in a mandamus proceeding can be tested by demurrer (Temescal Water Co. v. Dept. Public Works, 44 Cal.2d 90, 106--107, 280 P.2d 1.) Provision for the writ here sought is found in section 1085, Code of Civil Procedure, which declares that it 'may be issued * * * to any * * * board, or person, to compel the performance of an act which the law specifically enjoins, as a duty resulting from an office, trust, or station; * * *.' By the statute's very terms it is thus limited to the enforcement of purely ministerial duties and 'will not lie to control discretion within the area lawfully entrusted to the administrative agency.' (Faulkner v. Cal. Toll Bridge Authority, 40 Cal.2d 317, 326, 253 P.2d 659, 665.) There is no allegation by petitioners, nor could there be, that it was the ministerial duty of respondents to rescind the ordinance here involved, since numerous cases uniformly hold that the enactment of a zoning ordinance is purely a legislative act and a governmental function. (See Johnston v. City of Claremont, 49 Cal.2d 826, 834, 323 P.2d 71; Tandy v. City of Oakland, 208 Cal.App.2d 609, 611, 25 Cal.Rptr. 429; Ferris v. City of Alhambra, 189 Cal.App.2d 517, 522, 11 Cal.Rptr. 475; Benville v. County of Los Angeles, 180 Cal.App.2d 563, 567, 4 Cal.Rptr. 458.) Too, since the passage of a zoning ordinance is a legislative act, it necessarily follows that the vacating of such an enactment (the relief here sought) is likewise legislative in character. As in Tandy v. City of Oakland, Supra, 'the complaint simply asks the court to issue the writ to compel the City Council of the defendant city to perform a legislative act, * * *. It is elementary that the courts have no such power.' (Supra, 208 Cal.App.2d p. 611, 25 Cal.Rptr. p. 430.)

Despite the determinative nature of the foregoing language, as their first point on appeal petitioners nevertheless argue that they are not asking that respondent body perform a legislative act but, on the contrary, that the court order it to undo what has been done illegally. First and foremost, in this regard, is the claim that the Planning Commission recommended amendment of the ordinance without following the procedure prescribed by statute (Gov.Code, § 65854(a)) or, as further alleged, without taking the steps set forth in the ordinance itself with respect to the initiation of such amendment by a verified petition. Cited by petitioners is Hein v. City of Daly City, 165 Cal.App.2d 401, pp. 405--406, 332 P.2d 120, 123, wherein the court stated (quoting an earlier decision) that "The Zoning Law vests in the legislative body of the city broad discretionary power, but when the method for the exercise of the power is prescribed by the statute such method is the measure of the power to act.' (Citation.)' The case, in our view, is no authority for the contentions here advanced. Preliminarily, the decision points out that the entire proceedings there challenged were considered by both the city council and planning commission as being governed by the city ordinance and any compliance with the Government Code was purely accidental. How...