De Luca v. Board of Sup'rs of Los Angeles County

• Decision Date: 27 July 1955
• Court: California Court of Appeals Court of Appeals
• Parties: Michael DE LUCA, Petitioner and Appellant, v. BOARD OF SUPERVISORS OF LOS ANGELES COUNTY and Valley Land Development Company, a Co-Partnership, Defendants and Respondents. BARTHOLOMAE CORPORATION, a California Corporation, Petitioner and Appellant, v. BOARD OF SUPERVISORS OF LOS ANGELES COUNTY and Valley Land Development Company, a Co-Partnership, Defendants and Respondents. Civ. 20867, 20868.

Page 395

286 P.2d 395

134 Cal.App.2d 606

Michael DE LUCA, Petitioner and Appellant, v. BOARD OF SUPERVISORS OF LOS ANGELES COUNTY and Valley Land Development Company, a Co-Partnership, Defendants and Respondents.

BARTHOLOMAE CORPORATION, a California Corporation, Petitioner and Appellant, v. BOARD OF SUPERVISORS OF LOS ANGELES COUNTY and Valley Land Development Company, a Co-Partnership, Defendants and Respondents.

Civ. 20867, 20868.

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

July 27, 1955.

Hearing Denied Sept. 21, 1955.

Mize, Kroese, Larsh & Mize and Royal E. Hubbard, Santa Ana, for appellants.

Harold W. Kennedy, County Counsel, Edward H. Gaylord, Deputy County Counsel, Los Angeles, for respondent Board of Supervisors of Los Angeles County.

Burke, Williams & Sorensen, Los Angeles, for respondent Valley Land Development Co.

ASHBURN, Justice pro tem.

These cases involve the same facts and identical law points, with one exception which needs no comment. Each is an appeal from an order denying petition for writ of review. Counsel for the respondent Board of Supervisors stood upon a memorandum of law filed in opposition to the application and the ruling must be tested by the allegations of the petition. That of DeLuca will be reviewed; the Bartholomae Corporation petition contains the same allegations.

Petitioner says he is the owner of certain real property upon which he has a residence; it is located within zones A-1 and M-3 under the county zoning ordinance, No. 1494, and the maintenance of a public dump in those zones is prohibited; respondent Valley Land Development Company filed an application with the Regional Planning Commission of the County requesting that a zone exception be granted 'to permit a public dump' upon its land which is in the immediate vicinity of that of petitioner; the zoning ordinance requires ten days notice of hearing of such an application, i. e., by publication in a newspaper, and by post card mailed to all persons whose names and addresses appear on the assessment roll as owning property within a distance of 500 feet from the exterior boundaries of the area to be occupied by the use for which the variance is sought; notice was published and mailed; each gave notice of a hearing of a request for an exception to the A-1 zone 'in order to establish, operate and maintain, a land reclamation project' on the subject property. Each petition also says that there are only two land owners in the vicinity of applicant's property which are within 500 feet of its exterior boundaries, and that one of those owners is said Valley Land Development Company. The petition says the notice was published as required and was mailed to the persons required by the ordinance, but does not show whether petitioner received one or whether he ever saw or knew its contents. It is alleged that a public hearing was held by the Zoning Board, which made findings favorable to the application and recommended that the exception applied for be granted; that thereafter the Regional Planning Commission approved and adopted said finding and recommendation. Also that, within the time prescribed by the ordinance, an appeal was taken by Bartholomae Corporation to the Board of Supervisors and the decision of the Regional Planning Commission was affirmed. It was alleged further, by way of conclusion, that the establishment of a dump as contemplated would constitute a nuisance; also that it would depreciate the value of petitioner's property.

The petition and the briefs on appeal assert an excess of jurisdiction in that the published and mailed notices 'contain noadequate intimation of the true subject matter of the application, namely permission to establish a public dump on the property described'; that they 'are not real notice, or in truth and in fact any notice at all.' The gist of the argument is that a public dump is not 'a land reclamation project' and that the notice is essentially misleading; that the object of a notice is an opportunity to interested persons to be heard and hence it must adequately inform as to the true nature and subject matter of the hearing. Also that 'when the method for the exercise of the power is prescribed by the statute such method is the measure of the power to act. * * * When the statute requires notice and hearing as to the possible effect of a zoning law upon property rights the action of the legislative body becomes quasi judicial in character, and the statutory notice and hearing then becomes necessary in order to satisfy the requirements of due process and may not be dispensed with.' Hurst v. City of Burlingame, 207 Cal. 134, 141, 277 P. 308, 311. Appellant relies upon Kane v. Board of Appeals of City of Medford, 273 Mass. 97, 173 N.E. 1, which holds in effect that such a notice must be a real and not a misleading one.

Counsel for respondent Board of Supervisors argue 'As a practical matter there is no distinction between a land reclamation project and a dump, when the reclamation is carried on by means of a sanitary fill operation. * * * In view of the modern practices of land reclamation the terms 'land reclamation project' and 'public dump' are sufficiently synonymous so that notice of one constitutes notice of the other,' and they say that the zoning ordinance provides: "Section 224. Land Reclamation Projects Defined. The disposal of rubbish and unwanted material in such a manner so as to fill up holes and other depressions or in other ways make the property more usable shall be known as a land reclamation project.'

We find it unnecessary to resolve these questions propounded by counsel for the petition fails to aver any facts showing injury to petitioner as a result of the alleged inadequacy of the notice. The point is raised by respondent and is meritiorious.

Petitione...