Laguna Beach Taxpayers' Ass'n v. City Council of City of Laguna Beach

• Decision Date: 15 December 1960
• Citation: 187 Cal.App.2d 412,9 Cal.Rptr. 775
• Parties: LAGUNA BEACH TAXPAYERS' ASSOCIATION and Morgan Cuthbertson, Petitioners and Appellants, v. CITY COUNCIL OF the CITY OF LAGUNA BEACH et al., Respondents. Civ. 6303.
• Court: California Court of Appeals Court of Appeals

Page 775

9 Cal.Rptr. 775

187 Cal.App.2d 412

LAGUNA BEACH TAXPAYERS' ASSOCIATION and Morgan Cuthbertson, Petitioners and Appellants, v. CITY COUNCIL OF the CITY OF LAGUNA BEACH et al., Respondents.

Civ. 6303.

District Court of Appeal, Fourth District, California.

Dec. 15, 1960.

Morgan Cuthbertson, Laguna Beach, for appellants.

Rimel & Hohnson and Jack J. Rimel, Santa Ana, for respondents.

COUGHLIN, Justice.

This appeal requires a determination as to whether certain proposed city ordinances might be adopted through initiative proceedings.

Appellants applied for a writ of mandate to compel the respondent City Council either to adopt or call a special election for the purpose of submitting the adoption of these ordinances to the voters of the City of Laguna Beach. Their petition contained four counts; each count referred to a specific ordinance; the first concerned the acquisition of property to be used as a beach, and the calling of an election to authorize the issuance of bonds for such acquisition; the second provided a method of payment of these bonds; the third proposed the adoption and implementation of an architectural policy for future building; and the fourth constituted an amendment to a zoning ordinance regulating the height of buildings. Respondents entered a general demurrer to each count of the petition; this demurrer was sustained without leave to amend; a judgment of dismissal followed; and from this judgment appellants have taken this appeal.

There is no contention respecting the sufficiency of the preliminary initiative procedures preceding the request for adoption of the proposed ordinances or the calling of a special election to submit them to the voters. As indicated, the sole question presented concerns the propriety of the ordinances as subjects for adoption through initiative proceedings.

Since the judgment herein, the respondent City Council has called a bond election as requested through the initiative proceedings referred to in the first count of the petition, and appellants admit that their appeal is moot as to this count. At the time of oral argument herein, it was stipulated that the bond election was lost. The initiative ordinance referred to in the second count of the petition was companion to the beach acquisition bond ordinance; provided a method of payment of the bond issue proposed by the latter ordinance; and was operationally dependent upon approval of that bond issue by the voters. As the beach acquisition bond issue was not approved by the voters, the second ordinance, if adopted, would have become functus officio by its own terms. Consequently, the controversy respecting its nonadoption has ceased to exist. If appellants' petition for a writ of mandate had been limited to the first and second counts thereof, the pending appeal would be dismissed as moot. Consolidated Vultee Aircraft Corp. v. United Automobile, etc., Workers, 27 Cal.2d 859, 862, 167 P.2d 725; Lenahan v. City of Los Angeles, 14 Cal.2d 128, 132, 92 P.2d 1014; Bollotin v. Workman Service Co., 128 Cal.App.2d 339, 342, 275 P.2d 599. Consequently, the issues raised by these two counts of the petition need not be considered in determining the propriety of the judgment of dismissal entered by the lower court.

In sustaining respondents' demurrer to the third and fourth counts in the petition, the trial court determined that the initiative proceedings therein set forth 'constituted attempts contrary to the laws in this state to use initiative procedure to amend, modify and alter the provisions of an existing zoning ordinance.'

Basic to a consideration of the questions presented on this appeal 'is the established law of this state that an ordinance proposed by the electors of a county or of a city in this state under the initiative law must constitute such legislation as the legislative body of such county or city has the power to enact under the law granting, defining and limiting the powers of such body.' Hurst v. City of Burlingame, 207 Cal. 134, 140, 277 P. 308, 311; Blotter v. Farrell, 42 Cal.2d 804, 810, 270 P.2d 481. It is settled that, as a general rule, a city ordinance enacting or amending zoning legislation is not a proper subject for adoption through the initiative law in the manner proposed by the initiative petitions under consideration in this case. Hurst v. City of Burlingame, supra, 207 Cal. 134, 140, 277 P. 308; Johnston v. City of Clarement, 49 Cal.2d 826, 836, 323 P.2d 71. The reason for this rule is that the statute which confers upon the legislative body of the city the power to enact zoning laws prescribes the method by which they are to be adopted or amended: that the method of enactment is the measure of the power to enact: and that the initiative process as used in this case does not conform to this method. Galvin v. Board of Supervisors, 195 Cal. 686, 696, 235 P. 450; Hurst v. City of Burlingame, supra, 207 Cal. 134, 140, 277 P. 308; Simpson v. Hite, 36 Cal.2d 125, 134, 222 P.2d 225; Johnston v. City of Claremont, supra, 49 Cal.2d 826, 836, 323 P.2d 71.

Faced by this inevitability, the appellants contend that the initiative ordinances proposed by them are not zoning regulations of the type subject to the restrictive method of adoption imposed by the statute conferring authority on the city to enact zoning legislation and, for this reason, may be adopted through the initiative process.

Section 65800 of the Government Code, which defines the authority granted, authorizes a city to regulate the use, 'location, height, bulk, number of stories, and size of buildings'; to establish and maintain setback lines; and to create civic districts around civic centers, public parks and public buildings for the purpose of enabling a planning commission to review all plans for buildings within the district in order to assure an orderly development in the vicinity.

The initiative architectural policy ordinance involved in this case proposes a policy that all future buildings in the city should conform to a type of architecture to be adopted and enforced through appropriate legislation. Appellants contend that the subject of this ordinance is not within the purview of Section 65800 of the Government Code. We conclude to the contrary. An architectural policy very conceivably could regulate the use of a building by requiring conformance to a design which, as a practical matter, would limit its use to or prevent its use for a specific purpose. In like manner, such a policy readily could be used to regulate the 'location, height, bulk, number of stories, and size of buildings.' Similarly, an architectural policy very likely would overlap the field of regulation granted a planning commission in the exercise...