Jenner v. City Council of City of Covina

• Decision Date: 22 October 1958
• Citation: 331 P.2d 176,164 Cal.App.2d 490
• Court: California Court of Appeals Court of Appeals
• Parties: Arthur J. JENNER and Edith M. Jenner, Plaintiffs and Appellants, v. CITY COUNCIL OF The CITY OF COVINA, a municipal corporation, Thomas DeWitt, Donald Leggett, Andrew Reich, Ralph Nordhagen, and Paul Weisch, as members of the City Council of the City of Covina, a municipal corporation, Defendants and Respondents. Civ. 22955.

Page 176

331 P.2d 176

164 Cal.App.2d 490

Arthur J. JENNER and Edith M. Jenner, Plaintiffs and Appellants, v. CITY COUNCIL OF The CITY OF COVINA, a municipal corporation, Thomas DeWitt, Donald Leggett, Andrew Reich, Ralph Nordhagen, and Paul Weisch, as members of the City Council of the City of Covina, a municipal corporation, Defendants and Respondents.

Civ. 22955.

District Court of Appeal, Second District, Division 2, California.

Oct. 22, 1958.

Rehearing Denied Nov. 18, 1958.

Hearing Denied Dec. 17, 1958.

Fred N. Howser, Arcadia, for appellants.

Maurice O'Connor, City Atty. of City of Covina, Pomona, and O'Melveny & Myers, Pierce Works, Howard J. Deards, Franklin T. Hamilton, Los Angeles, for respondents.

FOX, Presiding Justice.

Plaintiffs, property owners in the district, attack (1) the proceedings taken by the city of Covina under the Vehicle Parking District Law, as amended (Streets & Highways Code, § 31500 et seq.), for the formation of Vehicle Parking District No. 1 of said city, (2) the apportionment of the assessment to cover the cost and expenses of the improvements, and (3) the validity of certain sections of the Streets & Highways Code. More specifically, they seek to enjoin the sale of bonds upon the properties within the assessment district from which funds the project will be financed. Having been denied any relief in the trial court, the plaintiffs have appealed.

On August 22, 1955, the City Council, after due notice, held a public hearing on the ordinance of intention to create the vehicle parking district in question. At that meeting there was read to the City Council and the other people present a report required by the Special Assessment Investigation, Limitation and Majority Protest Act of 1931 (Streets & Highways Code, § 2800 et seq.). This report was prepared by engineer Pack under the supervision of City Engineer Kressly. The matters covered by this report are enumerated in section 2825 of the Streets & Highways Code. Such report provided considerable information as to the general nature, location and extent of the proposed improvements, the lands proposed to be assessed to provide the funds to construct the improvements, itemized estimates of the costs, the total estimated cost of the project, the assessed value and true value of the property within the district and other related matters.

In addition, engineer Pack testified as to the boundaries of the district, the size and location of the parking lots and the improvements to be made thereon, and also stated that in his opinion all lands within the assessment district would be benefited.

The proposed district, excluding the lots to be used for the parking and other publicly owned property, consists of 161 parcels. Two of those are churches and seventy-two are residential. Testimony was presented that these properties would not be benefited. It was pointed out, however, that these residential properties were adjacent to the commercial area and if rezoning for commercial use was likely, they would now receive a potential benefit that would greatly increase immediately upon their being so rezoned. It was also represented to the council that certain commercial properties in the district would receive no benefits, and that nearby business properties outside of the proposed district would receive greater benefits than certain other properties included within the district. At this hearing all protests or objections that had been filed with the city were read and all persons who desired to be heard were heard personally or through their attorneys, and any evidence they desired to present was received.

Tabulation revealed that 42.73% of the qualified area protested the formation of the district. The City Council thereupon overruled the protests and adopted a resolution making the necessary findings under the Debt Limitation Act of 1931, prerequisite to the formation of the Vehicle Parking District. Also, an ordinance authorizing the formation of the district and the filing of the necessary condemnation suits was given a first reading.

The hearing on the spreading of the assessment was held during three separate meetings of the City Council. The assessment, showing the spread thereof, was presented to the City Council on January 28, 1957. The Superintendent of Streets was sworn and testified that the assessment was prepared under his direction by Mr. Thompson and that, in the opinion of the Superintendent of Streets, the assessment had been spread on the lands within the district in proportion to benefits to be received. Mr. Thompson was then sworn and testified that in preparing the assessment he spread it in porportion to benefits. All written protests filed with the city were read and the City Council then heard orally all property owners and other interested persons who desired to be heard and received all evidence they presented in regard to this matter. The hearing was thereupon continued to the meeting of February 14, 1957, at which time the council ordered certain modifications and continued the hearing to the meeting of February 26, 1957. At that hearing the council considered the proposed modifications previously ordered, heard testimony from Mr. Thompson to the effect that the proposed modifications would result in the assessment being spread in proportion to benefits. Mr. Thompson's testimony disclosed that a higher rate of assessment, based on the assessed value of the lands, was exacted from those properties nearest the parking lots while more distant property was assessed at a lower rate. Consideration also was given to the fact that commercial development would be somewhat lighter in some areas than in others.

During the course of the trial, plaintiffs offered testimony in an attempt to show that the City Council acted arbitrarily in fixing the boundaries of the district and in spreading the assessment, that the assessment was not spread in accordance with benefits to be received. Such testimony, upon objection, was not admitted in evidence; the trial court limiting the plaintiffs to matters contained in the record made in the proceedings before the City Council, and refused to consider evidence as to matters upon which the council had already made a determination.

The trial court found, in effect, that the omission of specified property from the district was not arbitrary, unreasonable or an abuse of discretion and that there was substantial evidence before the council which, if believed, supported the formation of the district, as formed, the apportionment of the assessment, as apportioned, and the confirmation of the assessment, as confirmed.

Plaintiffs argue that there was no substantial evidence to support the action of the defendants and, more specifically, no substantial evidence to support the seventh and sixteenth findings of fact made by the trial court. ¹

Preliminary to a consideration of the substantiality of the evidence in support of the council's action, it is necessary to consider plaintiffs' contention that the testimony of several of the witnesses was incompetent. The testimony of Mr. Pack, who participated in the formation of the district, to the effect that he believed all the property within the district would be benefited, is attacked on the grounds that the witness was not under oath, that there was no evidence that he was an expert, and that there was nothing in the record indicating the basis for his opinion. Substantially the same attack is made upon the testimony of Mr. Thompson, who testified that the assessment was spread in keeping with the benefits.

The record, however, shows that Mr. Thompson and Mr. Freeman, the Superintendent of Streets, were under oath. While it does not appear that Mr. Pack was sworn, Flagstad v. City of San Mateo, 156 Cal.App.2d 138, 318 P.2d 825, indicates that testimony not under oath in a council meeting is nevertheless competent evidence. At page 141 of 156 Cal.App.2d, at page 827 of 318 P.2d the court stated that 'it is clear that witnesses in a council proceeding of this sort need not be sworn (citation). 'If perchance the procedure before the council lacked some of the formality observed by judicial tribunals their decision is nonetheless vital and effective' (citation).'

While it is clear that mere uncorroborated hearsay or rumor is not competent evidence (Armistead v. City of Los Angeles, 152 Cal.App.2d 319, 324, 313 P.2d 127), the strict rules of evidence which obtain in the courts are not enforced in administrative proceedings (see Suckow v. Alderson, 182 Cal. 247, 251, 187 P. 965; Flagstad v. City of San Mateo, supra). In the case at bar, the mere fact that no formal foundation was laid as to the expertise of the witnesses would not render their opinion testimony incompetent or otherwise improper in this proceeding. Also, plaintiffs' contention that the testimony of these witnesses constituted mere legal conclusions in that no basis for the opinions was presented goes to the weight and not to the admissibility of the evidence.

The ultimate question, then, is whether or not there was substantial evidence in the record to support the determinations of the City Council and the findings made by the trial court.

Absent a showing of fraud or mistake, the determination by the City Council that certain property would not be benefited by the creation of the parking district is conclusive. (See Streets & H. Code, § 31564.) In Larsen v. City and County of San Francisco, 182 Cal. 1, at page 14, 186 P. 757, at, page 763, in an analogous situation, the court stated that 'under the principles established in this state and elsewhere, this final decision of the supervisors as to the property benefited * * * is conclusive, unless attacked on the ground of fraud of mistake.' An examination of the record fails to disclose any fraud, mistake or arbitrary action on the part of the City Council in fixing the boundaries of the district.

As to the general...