Mang v. Santa Barbara County

• Decision Date: 22 June 1960
• Citation: 182 Cal.App.2d 93,5 Cal.Rptr. 724
• Court: California Court of Appeals Court of Appeals
• Parties: Edward J. MANG, Petitioner and Appellant, v. COUNTY OF SANTA BARBARA, Board of Supervisors of Santa Barbara County, The Santa Barbara County Building Department, Respondents and Defendants. Civ. 24420.

Page 724

5 Cal.Rptr. 724

182 Cal.App.2d 93

Edward J. MANG, Petitioner and Appellant, v. COUNTY OF SANTA BARBARA, Board of Supervisors of Santa Barbara County, The Santa Barbara County Building Department, Respondents and Defendants.

Civ. 24420.

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

June 22, 1960.

Francis B. Cobb, Los Angeles, for petitioner.

Vern B. Thomas, Dist. Atty., Robert D. Curiel, Santa Barbara, James F. Barnes, Dana D. Smith, Deputy Dist. Attys., Fullerton, for respondents.

KINCAID, Justice pro tem.

This is an appeal by a landowner from a judgment of the Superior Court for Santa Barbara County denying his petition for a writ of mandate. Appellant sought mandate in the court below to compel the respondents, county of Santa Barbara, its board of supervisors and its county building department, to issue him a building permit for construction of a trailer park and gasoline service station on part of his land.

Appellant is the owner of an 800-acre ranch situated on Highway Number 1 some 35 miles north of Santa Barbara. Said land was used for grazing purposes; and, prior to August 4, 1958, it was unzoned.

On July 8, 1958, appeallant called at the Santa Barbara County Building Department and inquired about requirements for a building permit to establish a trailer park on his property. He was told in essence that there was no zoning applicable to his property; but that he would have to obtain permits as required by ordinance Number 942 of the county of Santa Barbara regulating the design and construction of trailer parks.

Immediately thereafter without obtaining any permit, appellant proceeded to have certain work done. ¹ The said work consisted of grading and leveling a site for the proposed trailer park; excavations for a septic tank and for a swimming pool; the drilling of a water well; and the erection of a water storage tank. Appellant expended in excess of $3,400 for the costs of said work.

Thereafter on or about August 8, 1958, appellant for the first time made application for a permit to establish and construct a trailer park on his property.

Appellant was thereupon informed that the board of supervisors on August 4, 1958, had enacted temporary interim zoning ordinance Number 959, which ordinance prohibited the issuance of building permits for trailer parks and gasoline service stations on 27,000 acres of land including applicant's land. Said ordinance in essence temporarily zoned 27,000 acres of land, adjacent to and including appellant's land, as agricultural; and it prohibited the use of such lands for commercial trailer parks and gasoline service stations. ²

Subsequently on or about November 17, 1958, the board of supervisors enacted permanent zoning ordinance Number 985, which permanently zoned said 27,000 acres, including appellant's acreage, as agricultural and prohibited the use of such lands for commercial trailer parks and gasoline service stations. ³

It further appears that, following the enactment of said ordinance Number 959, appellant applied to the county planning commission for a permanent zoning of 40 acres of his land, or for an exception as to said 40 acres, to permit use thereof as trailer park and for gasoline service station; and that appellant's said petition was denied by said commission and by the board of supervisors.

After denial thereof and of his said application for a building permit, appellant filed his petition for writ of mandate to have said ordinance Number 959 declared invalid and to compel the respondents to issue permit authorizing the construction of trailer park and gasoline service station on his property. As previously stated, judgment denying said petition was rendered by the lower court, and this appeal is taken therefrom.

The essence of appellant's contention is: (a) that said zoning ordinances Numbers 959 and 985 were invalidly enacted; and (b) that, in any event, they were not applicable to appellant by reason of his asserted pre-existing nonconforming use before their enactment. Appellant also contends that the county's alleged policy in zoning very large areas for one restricted use (e.g. for agricultural use only) and requiring landowners to make special applications for exceptions therefrom, is contrary to state law and planning, arbitrary and violative of constitutional rights.

It is first contended that said ordinance Number 959 was not in truth or fact a temporary interim zoning ordinance authorized under Government Code, section 65806; that it was an amendment to the county's existing basic zoning ordinance Number 661, and a general permanent zoning ordinance rather than an interim ordinance prohibiting interim uses as authorized under said section 65806; and that, therefore, and ordinance Number 959 could only validly be enacted and become effective after notice and hearing as provided in section 65804 of the Government Code, and other applicable sections of the Government and Elections Codes.

It is undisputed that ordinance Number 959 was enacted without the giving of notice or the holding of public hearing. The trial court held, however, that, while no notice was given nor public hearing held, the ordinance was valid as an urgency measure under the provisions of Government Code, section 65806.

Section 65806 of the Government Code provides in part: 'If the planning commission * * * is conducting or intends to conduct studies within a reasonable time for the purpose of * * * [recommending] to the legislative body the adoption of any zoning ordinance or amendment or addition thereto, * * * the legislative body to protect the public safety, health and welfare, may adopt, as an urgency measure, a temporary interim zoning ordinance prohibiting such and any other uses which may be in conflict with such zoning ordinance.' (Emphasis added.) ⁴

Appellant contends that ordinance Number 959 does not comply with section 65806 for the reasons that said ordinance was not an interim or temporary measure since it contained no limitation on its term of existence; that there is no showing of any urgency that affects public safety, health or welfare; that it is not limited to prohibiting uses; that it affects an amendment to the county's basic zoning ordinance Number 661 and proceeds to rezone and classify 27,000 acres on a permanent basis.

An examination of the provisions of said ordinance Number 959 is alone sufficient to show that appellant's said contentions are not well founded.

The ordinance is entitled, 'An Ordinance Adopting Interim Zoning Regulations * * *'; and section 5 thereof states, 'It is hereby declared that this ordinance is necessary for, and is required for the immediate preservation of the public safety, health and welfare * * *'

It also contains a declaration of facts constituting the urgency, as follows: 'The Planning Commission * * * in good faith is conducting studies for the purpose of holding hearings precedent to the adoption by the Board of Supervisors of zoning regulations in sections of the County where development is occurring as a result of the influx of population. Establishment of two missile bases in the Lompoc area will result in types of development in San Julian Valley [i.e. the valley where appellant's property is situated] which may be inimical to the public peace, health, safety and general welfare and to the orderly growth of the Valley. It is therefore necessary that this ordinance take effect immediately to prevent, pending adoption of precize zoning regulations, establishment of land uses which will destory the effect and purpose of a comprehensive zoning plan.'

In other sections of said ordinance Number 959, it is ordered that the subject land be interim zoned, and uses permitted, for agricultural and certain other purposes, not including use for commercial trailer parks, motels or hotels, or retail sales of petroleum products. The only reference to the county basic zoning ordinance Number 661 was that said ordinance 'is hereby incorporated and made a part of this ordiance by reference * * *'

The truth of the recitals of the legislative body (i.e. the board of supervisors) that the adoption of such interim zoning ordinance was necessary in order to protect public safety, health and welfare and that the county planning commission was conducting or intended to conduct studies within a reasonable time for the purpose of recommending the adoption of a permanent zoning ordinance, must be assumed, and the ordinance must be deemed to be presumptively valid. City of Los Angeles v. Gage, 127 Cal.App.2d 442, 450-452, 274 P.2d 34. Also the record shows that such studies were made and that a permanent zoning ordinance was in fact adopted within a reasonable time.

The contention that the ordinance was not an interim or temporary measure because it contained no express limitation on its term of existence, is without merit. The ordinance was obviously intended to be limited in duration and to expire upon the adoption of the permanent ordinance as to which studies were in progress. Nothing in section 65806 requires the fixing of a precise time limit; and, where the ordinance expressly recites that it is an interim zoning regulation pending adoption of precise zoning regulations, it cannot be reasonably held that the ordinance was permanent and therefore not one within the purview of section 65806.

The contention that ordinance Number 959...