Kehoe v. City of Berkeley

• Citation: 135 Cal.Rptr. 700,67 Cal.App.3d 666
• Parties: Hildur KEHOE et al., Plaintiffs and Appellants, v. CITY OF BERKELEY et al., Defendants and Respondents (two cases). Civ. 37644, 38114.
• Decision Date: 17 January 1977
• Court: California Court of Appeals Court of Appeals

Page 700

135 Cal.Rptr. 700

67 Cal.App.3d 666

Hildur KEHOE et al., Plaintiffs and Appellants, v. CITY OF BERKELEY et al., Defendants and Respondents (two cases).

Civ. 37644, 38114.

Court of Appeal, First District, Division 3, California.

Jan. 17, 1977.

As Modified Feb. 16, 1977.

Hearing Denied March 17, 1977.

David Mundstock, Berkeley, for appellants.

Lois L. Johnson, City Atty., Susan Watkins, Dennis Lee, Associate Attys., Berkeley, for respondent City of Berkeley.

Benjamin D. James, Jr., San Francisco, for respondent Redevelopment Agency.

SCOTT, Acting Presiding Justice.

Appellants appeal from a judgment of dismissal entered upon the sustaining of respondents' demurrer to their complaint without leave to amend, and from a denial of their petition for injunctive relief. ¹ Appellants include certain members of the Berkeley City Council, members of the Berkeley Hearing Advisory and Appeals Board, and the Ocean View Committee, an organization of West Berkeley residents. Respondents are the City of Berkeley, the Berkeley Redevelopment Agency (hereinafter Agency), a demolition contractor, and various City and Agency officials.

The complaint in case No. 37644, in which the demurrer was sustained, sought to enjoin demolition of certain buildings located in an urban renewal area of the Agency known as West Berkeley Industrial Park. The complaint alleged that the City Manager of Berkeley issued demolition permits without compliance with the procedures set forth in the Berkeley Neighborhood Preservation Ordinance (hereinafter NPO) for the issuance of such permits. During the pendency of that action, the City Manager of Berkeley issued other demolition permits for structures within the West Berkeley Industrial Park, allegedly without compliance with the NPO. Three of the buildings were in fact demolished. Action No. 38114 sought an injunction against the issuance of any more demolition permits or the demolition of any buildings within the redevelopment project without compliance with the NPO.

I. Respondents first contend that appellants do not have standing to maintain the instant action ² in that they have failed to show any personal or peculiar injury. Appellants counter that the action is being maintained as a taxpayer suit under the provisions of Code of Civil Procedure section 526a, which provides as follows:

An action to obtain a judgment, restraining and preventing any illegal expenditure of, waste of, or injury to, the estate, funds, or other property of a county, town, city or city and county of the state, may be maintained against any officer thereof, or any agent, or other person, acting in its behalf, either by a citizen resident therein, or by a corporation, who is assessed for and is liable to pay, or, within one year before the commencement of the action, has paid, a tax therein. This section does not affect any right of action in favor of a county, city, town, or city and county, or any public officer; provided, that no injunction shall be granted restraining the offering for sale, sale, or issuance of any municipal bonds for public improvements or public utilities.

An action brought pursuant to this section to enjoin a public improvement project shall take special precedence over all civil matters on the calendar of the court except those matters to which equal precedence on the calendar is granted by law.

The Supreme Court has held that:

The primary purpose of this statute, originally enacted in 1909, is to 'enable a large body of the citizenry to challenge governmental action which would otherwise go unchallenged in the courts because of the standing requirement.' (Comment, Taxpayers' Suits: A Survey and Summary (1960) 69 Yale L.J. 895, 904.)

California courts have consistently construed section 526a liberally to achieve this remedial purpose. Upholding the issuance of an injunction, we have declared that it 'is immaterial that the amount of the illegal expenditures is small or that the illegal procedures actually permit a saving of tax funds.' (Wirin v. Parker (1957) 48 Cal.2d 890, 894, 313 P.2d 844, 846.) Nor have we required that the unlawfully spent funds come from tax revenues; they may be derived from the operation of a public utility or from gas revenues. (Mines v. Del Valle (1927) 201 Cal. 273, 279--280, 257 P. 530; Trickey v. City of Long Beach (1951) 101 Cal.App.2d 871, 881, 226 P.2d 694.) A unanimous court in Wirin v. Horrall (1948) 85 Cal.App.2d 497, 504--505, 193 P.2d 470, 474, held that the mere 'expending (of) the time of the paid police officers of the city of Los Angeles in performing illegal and unauthorized acts' constituted an unlawful use of funds which could be enjoined under section 526a. (See also Vogel v. County of Los Angeles (1967) 68 Cal.2d 18, 64 Cal.Rptr. 409, 434 P.2d 961.)

We have even extended section 526a to include actions brought by nonresident taxpayers (Irwin v. City of Manhattan Beach (1966) 65 Cal.2d 13, 18--20, 51 Cal.Rptr. 881, 415 P.2d 769). In Crowe v. Boyle (1920) 184 Cal. 177, 152, 193 P. 111, 125, we stated: 'In this state we have been very liberal in the application of the rule permitting taxpayers to bring a suit to prevent the illegal conduct of city officials, and no showing of special damage to the particular taxpayer has been held necessary.'

(Blair v. Pitchess (1971) 5 Cal.3d 258, 267--268, 96 Cal.Rptr. 42, 48, 486 P.2d 1242, 1248; see also Harman v. City & County of San Francisco (1972) 7 Cal.3d 150, 159--160, 101 Cal.Rptr. 880, 496 P.2d 1248.)

Appellants allege that they are 'City of Berkeley citizens, residents, and taxpayers' and seek to prevent the unlawful issuance of permits by city officials. Under the principles enunciated in the Blair case, these allegations are sufficient to give appellants standing pursuant to Code of Civil Procedure section 526a.

II. The NPO, which appellants allege has not been followed by respondents in the issuance of building demolition permits, was adopted in April of 1973 as an initiative ordinance. The stated purpose of the ordinance is 'to deal with an emergency situation arising from current development trends in the City of Berkeley,' to wit, the reduction in the stock of low rent older homes. The ordinance sets forth a procedure for correcting the deficiencies in Berkeley's Master Plan and Zoning Ordinance, and contains interim regulations restricting the issuance of building and demolition permits until such time as a new Master Plan is adopted. As of the date of this appeal no Master Plan had been adopted by the City of Berkeley, as contemplated by the NPO; therefore, the provisions of the NPO regulating the granting of demolition permits was still in force and effect. ³

Appellants allege that the demolition permits in the instant cases were issued without compliance with the ordinance, and hence should be deemed invalid. ⁴ Respondents contend that the Redevelopment Agency, as a state agency, is not subject to regulation by Berkeley ordinances, and they further contend that even if they were subject to such ordinances, the demolition permit provisions of the NPO are not an 'applicable building ordinance' with which they must comply as a local agency within the provisions of Government Code section 53091.

A. We first address ourselves to the question of what regulatory power, if any, a city has over an urban renewal district created under the Community Redevelopment Law (hereinafter CRL). (Health & Saf. Code, § 33000 et seq.) The Berkeley Redevelopment Agency was created in 1967 pursuant to the CRL.

Government Code sections 53090--53094 (Regulation of Local Agencies by Counties and Cities) create a statutory exception to the rule that state agencies are to be regulated only by the state. (Hall v. City of Taft (1956) 47 Cal.2d 177, 302 P.2d 574; In re Means (1939) 14 Cal.2d 254, 93 P.2d 105; Town of Atherton v. Superior Court (1958) 159 Cal.App.2d 417, 324 P.2d 328.) Under these sections of the Government Code, 'all local agencies are required to comply' with all applicable city or county building and zoning ordinances (City of Santa Clara v. Santa Clara Unified Sch. Dist. (1971) 22 Cal.App.3d 152, 158, 99 Cal.Rptr. 212, 216; Gov. Code, § 53091). 'Building ordinances' include ordinances of a county or city regulating the construction and removal of buildings. (Gov. Code, § 53090, subd. (b).) Ordinances establishing demolition permit requirements are thus included within the statute.

Government Code section 53090, subdivision (a) defines 'local agency' as 'an agency of the State for the local performance of governmental or proprietary function within limited boundaries.' We find no case interpreting the term 'local agency.' It has been suggested that 'as a general proposition, any district, agency, or authority created or authorized by state law and exercising governmental functions within limited territorial boundaries . . . is an agency of the State for the local operation of some governmental function,' and hence should be deemed a local agency within the purview of Government Code section 53090. (Opinion of Legislative Counsel, contained in Problems of Local Government Resulting from the Hall vs. City of Taft Case Decision, 6 Assem. Interim Com. Rep. No. 8, pp. 20, 22, 1 Assem. J. Appendix (1959).) A community redevelopment agency such as respondent clearly falls within this definition. (Id., Health & Saf. Code, §§ 33002--33005, 33120, 33122--33123.) We conclude that the Agency is a local agency within the meaning of Government Code section 53090. Therefore, it must comply with all applicable building and zoning ordinances of the City of Berkeley.

B. Respondents assert that although the Agency may be a 'local agency' under the Government Code provisions, the demolition permit requirements of the NPO should nevertheless be deemed inapplicable to its activities. We agree, and conclude that section 5 of the NPO is not an 'applicable building ordinance' within the meaning of ...