McMillan v. American Gen. Fin. Corp.

• Decision Date: 22 June 1976
• Citation: 60 Cal.App.3d 175,131 Cal.Rptr. 462
• Court: California Court of Appeals Court of Appeals
• Parties: Edwin M. McMILLAN et al., Plaintiffs and Respondents, v. AMERICAN GENERAL FINANCE CORPORATION et al., Defendants and Appellants. Civ. 36144.

Page 462

131 Cal.Rptr. 462

60 Cal.App.3d 175

Edwin M. McMILLAN et al., Plaintiffs and Respondents, v. AMERICAN GENERAL FINANCE CORPORATION et al., Defendants and Appellants.

Civ. 36144.

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

June 22, 1976.

Hearing Denied Aug. 18, 1976.

Watson & Hoffe, Francis A. Watson, Jr., Richmond, for defendants and appellants.

Richard H. Bartke, Richmond, for plaintiffs and respondents.

KANE, Associate Justice.

This is an appeal from a superior court judgment which set aside approval of the appellants' tentative map by the Richmond city council and which enjoined any development on the site in question. Under established principles, judicial review in such cases is limited to determining whether substantial evidence supports the findings of the city council and whether the findings support the council's determinations (Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 113 Cal.Rptr. 836, 522 P.2d 12). For the reasons stated below we have concluded that both of these requisites were fulfilled by the city council. Therefore, the judgment of the trial court must be reversed.

Statement of Facts

Appellants desire to build a 70-unit condominium complex on a 22.5-acre site which was formerly owned by their predecessor in interest, Trowbridge Properties, Inc. (hereafter 'Trowbridge'). The two short sides of the roughly rectangular parcel abut large single-family residential lots and property owned by the East Bay Municipal Utility District; the northeast edge is contiguous to East Bay Regional Park land and the southwest edge is the border between Richmond and the City of El Cerrito, and also serves as the boundary for the Mira Vista Country Club.

In 1961, the site was rezoned for highrise residential controlled development. This action was apparently taken pursuant to an agreement whereby Trowbridge gave the City of Richmond approximately 300 acres for parks and other public purposes in exchange for rezoning the site in question for 400 residences. The city's general plan subsequently included the site in its residential designation.

In 1967, Richmond's general plan was revised when the city council adopted recommended revisions which included designating Wildcat Canyon, the area where appellants' property is located, a general park lands area. The planning commission was directed to disseminate information about the revised general plan. Pursuant to this directive, the planning commission prepared and circulated a brochure containing a map which designated appellants' property for 'Expansion of Parklands in Wildcat Canyon.' However, the descriptive part of the brochure limited park expansion to property then 'under negotiation for purchase by the East Bay Regional Park District.' Whether the proposed development site was then 'under negotiation' or even consciously included in the park lands designation will be discussed below. Also inadvertently covered by this designation were two areas for which subdivision maps had already been approved and several occupied houses.

In 1968, the City of Richmond recorded a 'Declaration of Controlled Development Zoning' which included the development site as property subject to a controlled development plan approved by the city planning commission.

In 1969, Trowbridge agreed--as a condition of rezoning other property--to reduce the number of units on the development site from 400 to 100.

In 1972, Trowbridge agreed to a further reduction in the number of units on the site to 70.

After appellants had acquired Trowbridge's interest in the site, the city ordered preparation of an Environmental Impact Report ('EIR') which was submitted to the city together with appellants' tentative map. These documents were initially reviewed by the planning commission's development review committee. The committee prepared a detailed analysis which considered, inter alia, whether the proposed development was consistent with the Richmond general plan, and whether its approval would require any affirmative findings under then applicable Business and Professions Code section 11549.5, subdivisions (a) or (b). ¹ The committee concluded that the development was consistent with the general plan and that no affirmative findings were necessary. Approval of the tentative map, subject to several conditions, and of the EIR was recommended.

The planning commission approved the EIR, but for reasons apparently not related to the question of conformity with the Richmond general plan denied approval of the tentative map on a split vote. Pursuant to a city ordinance, this denial was appealed to the city council. The planning director sent the council a memorandum on appeal procedures. This memo reminded the council that if they decided to approve the development, certain findings were required by statute, and made reference to relevant parts of the development review committed report.

On August 6, 1973, the city council approved the EIR and initiated a public hearing on the appeal. After considerable discussion, the hearing was put over for two weeks to give council members time to carefully consider all facets of the appeal. At its August 20, 1973, meeting there was additional open discussion regarding the proposed development, following which the counsel voted to overrule the planning commission. ² Prior to the actual vote, a great deal of discussion took place between various members of the council and the city attorney, from which it is clear that the intended import of the motion to overrule the planning commission included approval of the tentative map with certain described conditions together with a determination that the council had made the negative findings required by the Business and Professions Code. Any doubt concerning the scope of the resolution adopted by the council at that time is removed by the actions which immediately followed. The minutes of the meeting indicate that immediately after adoption of the resolution, the council took a recess, during which a discussion took place concerning the adequacy of the negative findings or reference thereto contained in the resolution. Upon reconvening, Councilman Fernandez made the following motion: 'I would move, Mr. Mayor, that as outlined on pages 4 through 7 of the (development and review committee) report in front of us, that we make the negative findings outlined in Section 11549.5 of the California Business and Professions Code relative to this project.' The motion was seconded and Unanimously approved. The council then voted six to two to approve the tentative map subject to several conditions. The city attorney then drafted and the mayor approved a formally worded resolution ³ which reads in relevant part, 'NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Richmond, California, that:

'1. The Council finds that none of the provisions contained in Section 11549.5 of the Business and Professions Code of the State of California will be violated by the development of this subdivision.

'2. The Council finds that in relation to Section 11526(b) ⁴ (sic) of the Business and Professions Code that the proposed subdivision, together with the provisions for its design and improvement, are consistent with the applicable and specified general plans of the City of Richmond.'

Shortly after this approval, numerous permits were issued and work on the development began.

On October 5, 1973, the respondents filed this action against the City of Richmond, certain named representatives thereof, the County of Contra Costa and the appellants. The complaint attacked approval of the proposed development on numerous grounds. ⁵ After granting judgment on the pleadings in favor of the County of Contra Costa, the matter was heard without a jury in January and February of 1974. Following 11 days of trial, the court below found for the defendants and appellants on all issues, except that it found that: (1) the city council findings that sections 11526, subdivision (c), and 11549.5, subdivisions (a) and (b), of the Business and Professions Code will not be violated are not supported by substantial evidence; (2) Richmond's general plan specifically included the site in a park lands designation; (3) Richmond zoning ordinances do not constitute a specific plan within the meaning of Business and Professions Code, sections 11526, subdivision (c), and 11549.5, subdivisions (a) and (b), and section 65451 of the Government Code.

Conclusions of law were rendered in conformity with the findings, and judgment was entered permanently restraining development of the site.

On appeal the developer-appellants seek reversal, urging that (1) the Richmond zoning ordinance is a specific plan within the meaning of the statutes and that since the proposed development is consistent with that specific plan, the council's approval was proper; and (2) the specific findings of the council are legally sufficient and are supported by substantial evidence. Since we hold the latter claim to be meritorious, the question of whether the zoning ordinances constitute a specific plan need not be considered.

Judicial Review

In this case we review that part of the Richmond city council's action which concerns findings made pursuant to Government Code, sections 66473.5 and 66474. ⁶ The function of an appellate court in cases like this is to determine whether (1) the findings of the agency or local governmental body (hereafter 'agency') are legally sufficient, and (2) whether the findings are supported by substantial evidence and support the agency's decision (Topanga Assn. for a Scenic Community v. County of Los Angeles, supra, 11 Cal.3d at p. 510, 113 Cal.Rptr. 836, 522 P.2d 12). In making these determinations this court must resolve any reasonable doubts in favor of the agency findings and decision (Id. at p. 514, 113 Cal.Rptr. 836, 522 P.2d 12; Savelli v. Board of Medical Examiners (1964) 229 Cal.App.2d...