Lees v. Bay Area Air Pollution Control Dist.

• Decision Date: 20 December 1965
• Court: California Court of Appeals Court of Appeals
• Parties: Milton H. LEES and Tessie Hartman, Plaintiffs and Appellants, v. BAY AREA AIR POLLUTION CONTROL DISTRICT, a Special District Formed Pursuant to the Health and Safety Code of the State of California, and E. Spencer Bodine and Joseph G. Hunter, as the Hearing Board of the Bay Area Air Pollution Control District, Defendants and Respondents. Civ. 22388.

Page 295

48 Cal.Rptr. 295

238 Cal.App.2d 850

Milton H. LEES and Tessie Hartman, Plaintiffs and Appellants, v. BAY AREA AIR POLLUTION CONTROL DISTRICT, a Special District Formed Pursuant to the Health and Safety Code of the State of California, and E. Spencer Bodine and Joseph G. Hunter, as the Hearing Board of the Bay Area Air Pollution Control District, Defendants and Respondents.

Civ. 22388.

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

Dec. 20, 1965.

Rehearing Denied Jan. 19, 1966.

Hearing Denied Feb. 16, 1966.

Matthew M. Fishgold, San Francisco, for appellants.

Matthew S. Walker, San Francisco, for respondents.

SALSMAN, Justice.

This is an appeal from a judgment denying a petition for a writ of mandate. Appellants sought to have the superior court declare Regulation 2 of respondent Bay Area Air Pollution Control District (hereafter referred to as the District) unconstitutional or to direct the District to grant them a variance from the regulation.

Appellants first contend that procedural errors, committed at trial and in proceedings before the District's hearing board, require reversal of the judgment, and second that Regulation 2 of the District is unconstitutional because it confiscates their property without just compensation and also creates an unreasonable and arbitrary classification. We do find some procedural errors in the record, but they are trivial and inconsequential in nature, and wholly insufficient to upset the judgment. There is no merit in appellants' major contention concerning the constitutionality of the District's regulation, and we therefore affirm the judgment.

The District is organized pursuant to legislation enacted in 1955 and found in Health and Safety Code Division 20, chapter 2.5. The District board is authorized to adopt rules and regulations to control the release of air contaminants in order to alleviate air pollution. Pursuant to this authority the District adopted Regulation 2, which regulation imposes limitations upon the emission of dense smoke from a number of sources, including incinerators. The regulation is applicable to apartment house incinerators, but specifically exempts those used in one and two-family dwellings.

Each of the appellants owns an apartment house housing more than two families. Each apartment house is equipped with an incinerator for the disposal of rubbish and garbage. Application of the District's Regulation 2 would in effect prohibit the use of their incinerators, unless extensively modified.

Appellants petitioned the District for a variance pursuant to Health and Safety Code Division 20, chapter 2.5, article 12, contending that Regulation 2, as applied to them was unconstitutional. After a full hearing, a variance was denied. Appellants then sought mandate from the superior court.

We first consider appellants' contention that procedural errors before both the District hearing board and the trial court compel reversal of the judgment. Appellants contend that the hearing board of the District, in denying the application for a variance, failed to make findings of fact. We think the hearing board was not required to make findings. The proceedings before the board were not initiated by the District for the purpose of investigating appellants' compliance with the District's regulations. In such a proceeding, if appellants had been found in violation of any District regulation, doubtless findings of fact and conclusions of law would have been necessary to the validity of the District's decision. (Health & Saf. Code, § 24368.) But here appellants were applicants for a variance from the regulation, and the District denied their application. If the hearing board had found merit in appellants' application it could have prescribed other requirements and permitted a variance under Health and Safety Code, section 24365.5, and upon granting such a variance, findings would have been appropriate. However, upon denial, findings are not indispensable. This is because findings made upon denial of a request for a variance would be purely negative findings, and negative findings are not required. (See Southern California etc. Lines v. Public Utilities Com., 35 Cal.2d 586, 592, 220 P.2d 393; 2 Witkin, Cal. Procedure, Trial, § 119, p. 1851, and cases cited.) In Pry Corp. of America v. Leach, 177 Cal.App.2d 632, 637, 2 Cal.Rptr. 425, 428, the court, recognizing this rule, declared that '* * * A party may not complain of the failure of the court to make a finding that would necessarily have been adverse to him', citing Goldberg v. Paramount Oil Co., 143 Cal.App.2d 215, 224, 300 P.2d 329.

Appellants make several complaints concerning proceedings in the superior court. They first urge error on the part of the court in its refusal to allow them to present a limited record of the proceedings before the District's hearing board. The record before us discloses that when appellants' application for the writ of mandamus was presented on its merits, appellants had not caused any part of the oral proceedings before the hearing board to be transcribed. Rather, they presented the matter to the court upon the pleadings, various exhibits and maps introduced in evidence before the hearing board, certain publications of the District, and other documents. The relevant provisions of Regulation 2 were quoted in the District's reply to the petition for mandate and were thus before the court. During the hearing, some difference arose between counsel concerning the testimony of witnesses before the District hearing board. Counsel for appellants expressed a willingness to have the testimony of two witnesses transcribed and presented to the court. The court declared that the matter could not be presented on a partial record. This, of course, was incorrect, because Health and Safety Code, section 24368.4 expressly authorizes judicial review of the District's proceedings, and provides for preparation of a partial record. Code of Civil Procedure section 1094.5(a) also supports appellants' contention that it is proper in mandate proceedings to present all or part of the record before the inferior tribunal. But we see no reason to fault the trial court's ruling here. It must be remembered that the matter was before the court for hearing on its merits. It was the obligation of appellants to be ready to go forward with their evidence and to make a showing in support of their application for the writ. They chose not to be prepared with a transcript of the testimony before the board. They made no request for a continuance so that a transcript could be prepared. There was no attempt to demonstrate to the trial court the relevance or significance of the absent testimony, and there is no suggestion made on this appeal that the disputed testimony, if presented, would have affected the result of the trial court's proceedings. Undoubtedly, if appellants had made a request for a continuance so that the full record could have been presented, the court would have granted the request upon a proper showing, but in the absence of such a request, and with no showing of prejudice, the error becomes insignificant.

Appellants argue that the trial court did not exercise its independent judgment on the evidence. This is not correct. In an effort to show that the court did not weigh the evidence appellants quote an isolated comment of the court made during the proceedings, to the effect that '* * * if there is any evidence before the board, obviously they are going to prevail. * * *' But this does not show that, in its final analysis, the court did not weight the evidence and form its own independent...