Millbrae Ass'n for Residential Survival v. City of Millbrae

• Decision Date: 17 May 1968
• Citation: 69 Cal.Rptr. 251,262 Cal.App.2d 222
• Parties: MILLBRAE ASSOCIATION FOR RESIDENTIAL SURVIVAL et al., Plaintiffs and Appellants, v. CITY OF MILLBRAE et al., Defendants and Respondents; John B. COCKCROFT, Jr., et al., Intervenors and Appellants. Civ. 23508.
• Court: California Court of Appeals Court of Appeals

Page 251

69 Cal.Rptr. 251

262 Cal.App.2d 222

MILLBRAE ASSOCIATION FOR RESIDENTIAL SURVIVAL et al., Plaintiffs and Appellants, v. CITY OF MILLBRAE et al., Defendants and Respondents John B. COCKCROFT, Jr., et al., Intervenors and Appellants.

Civ. 23508.

Court of Appeal, First District, Division 1, California.

May 17, 1968.

As Modified June 6, 1968.

Hearing Denied July 10, 1968.

George Corey, San Bruno, for appellants.

Frank Piombo, San Mateo, for respondents.

William Edgar, San Francisco, for interveners-respondents.

MOLINARI, Presiding Justice.

Plaintiffs ¹ and interveners ² appeal from a judgment validating certain zoning ordinances and a 'Project General Plan' applicable to interveners' property but invalidating the 'Project Precise Plan' submitted for interveners' proposed real estate development. ³ In conjunction with the appeal we are called upon to decide certain motions which have heretofore been presented to us, the nature of which we shall discuss after delineating our scope of review and the facts of the instant case.

Scope of Review

Since these appeals are taken on the clerk's transcript alone, the following rules of review apply: the record before us consists properly of only the judgment, findings of fact and conclusions of law in support thereof, and the pleadings; we are not concerned with evidence taken in the trial court, either orally or through the admission of exhibits (whether or not said exhibits are incorporated into the clerk's transcript); we presume that there was substantial evidence to support the findings of the trial court; and we are confined to the question whether the judgment is supported by the findings and whether reversible error appears upon the face of the record. (Crummer v. Zalk, 248 Cal.App.2d 794, 797, 57 Cal.Rptr. 185; Pfleg v. Pfleg, 168 Cal.App.2d 53, 55--56, 335 P.2d 131; Tibbets v. Robb, 158 Cal.App.2d 330, 337, 322 P.2d 585; White v. Jones, 136 Cal.App.2d 567, 569, 571, 288 P.2d 913.) Further, since none of the parties objected to the findings or conclusions of the court nor requested specific findings we must resolve all conflicts and ambiguities in the findings in support of the judgment as well as infer logical and reasonable findings in support thereof. (Code Civ.Proc. § 634; Auer v. Frank, 227 Cal.App.2d 396, 406; 38 Cal.Rptr. 684, 6 A.L.R.3d 1108; Canadian Indem. Co. v. Motors Ins. Corp., 224 Cal.App.2d 8, 17, 36 Cal.Rptr. 159; Thornton v. Stevenson, 185 Cal.App.2d 708, 715, 8 Cal.Rptr. 603; Reinsch v. City of Los Angeles, 243 Cal.App.2d 737, 746, 52 Cal.Rptr. 613; People v. Coit Ranch, Inc., 204 Cal.App.2d 52, 64--65, 21 Cal.Rptr. 875; Schaefer v. Berinstein, 180 Cal.App.2d 107, 124--125, 4 Cal.Rptr. 236.)

Findings of Fact

The specific findings of fact of the trial court were as follows: in 1959 the City Council of the City of Millbrae duly adopted and enacted Ordinance No. 161, which amended the basic zoning ordinance of the City of Millbrae (Ordinance 42) to provide for a classification of land use known as Planned Unit Development or PD District. In 1960 the Trousdale Construction Company filed with the City of Millbrae an application to rezone approximately 52 acres of R--1 land (single family residence) to PD district. The 'Project General Plan' accompanying said application divided said 52 acres of land into 8 sections, numbered from Section A to Section I. After due notice and public hearings on the question, the City Planning Commission adopted Resolution No. 12 approving the rezoning of all 8 sections of the property described in the application and the 'Project General Plan' from R--1 to PD zoning. The City Council, after giving due notice and holding public hearings on the zoning described in Resolution No. 12 and in the accompanying 'Project General Plan,' adopted Ordinance No. 182 on August 1, 1961, rezoning only Section A (approximately 13 acres) of the total property from R--1 to PD district. The 'Project General Plan' submitted at that time provided for construction of seven six-story apartment buildings on the property.

The City Council did not refer its rezoning of Section A back to the City Planning Commission for report and recommendation. The trial court found that public hearings held by the City Council, the public notices thereof, and the newspaper publicity during the enactment of Ordinance No. 182 caused plaintiffs to become aware of said procedural defect, 'if it was a defect.'

On April 6, 1962, interveners acquired an option to purchase the subject property including the rezoned Section A. Shortly thereafter the then owners of the property applied to the City to amend the 'Project General Plan' described in Ordinance 182 to provide for three high-rise apartment buildings and seven quadplexes instead of the seven six-story buildings originally contemplated. The City Planning Commission held public hearings on the amendment and then adopted Resolution No. 22 approving the changes subject to four conditions, which were, briefly, that Vallejo and Connejo Drives be connected; that off-street parking be provided in a ratio of .75 to 1; that a water tank be provided; and that the developer incorporate into the PD district property which he owned immediately east of the district. After due notice was given and public hearings held, the City Council on August 7, 1962, approved the amendment of the 'Project General Plan' subject to the foregoing conditions and requested interveners to present their 'Project Precise Plan' reflecting the changes.

In order to comply with the foregoing four conditions of the 'Amended Project General Plan,' interveners applied for the rezoning of approximately 3.75 acres of land adjacent to the subject property, which rezoning was duly accomplished on February 19, 1963, with the enactment of Ordinance 202. Further, the owners of the property deeded a portion thereof to the City of Millbrae for water tank purposes and on February 5, 1963, interveners, the City, and a construction company entered into an agreement for construction of the water tank, under which interveners were to bear 77 percent of the cost, less certain amounts to be refunded in three installments, and the tank would service the property described in Ordinances No. 182 and No. 202 plus other property in the City of Millbrae. The City Council duly passed Resolution 63.7 authorizing the execution by the City of the foregoing agreement. The trial court found that the resolution and the agreement and contract executed pursuant thereto did not substantially change or alter a former water agreement executed between the City of Millbrae and the Trousdale Construction Company on January 18, 1955.

The trial court specifically found that all public hearings, notices, and other required procedural steps for the adoption of Ordinances 161, 182 and 202 have been accomplished and held in full compliance with the State Planning Act, the zoning ordinances of the City of Millbrae, and other relevant laws and statutes, and that the 'Amended Project General Plan' of Auggust 7, 1962 was adopted in full compliance with Ordinance 161 and does not violate the State Planning Act or any City of Millbrae zoning ordinances. The court further found that Ordinance 202 did not establish a separate PD district of 3.75 acres but merely constituted an addition to the existing PD district created under Ordinance 182.

On February 20, 1963, pursuant to the terms of Ordinance 161, the owners of the property filed with the City Planning Commission an application for approval of their 'Project Precise Plan.' At four regular public meetings, the Planning Commission reviewed and ultimately, on April 22, 1963, approved the Precise Plan. No public hearings as such were held, although local newspapers carried stories about the proceedings. While the Planning Commission was reviewing the Precise Plan, the City Council requested copies thereof and reviewed said plans at a public meeting on March 19, 1963, but took no formal action thereon. The Precise Plan was approved April 22, 1963, and changed the 'Amended Project General Plan' of August 7, 1962, as follows: seven apartment units were added to the high-rise buildings; part of a proposed pitch and putt golf course was eliminated; parking spaces were increased; and two of the three high-rise buildings, buildings A-1 and A-2, were substantially relocated. The Precise Plan relocated building A-2 from 70 feet distant to 35 feet distant from the property line of plaintiffs Robert J. and Patricia M. Lloyd, who had made a deposit on their property adjacent to the PD district around February of 1963 and moved into their residence in February 1964.

On May 27, 1963, the subject property was conveyed to interveners. On September 27, 1963, intervener Lee E. Ham, City Engineer of the City of Millbrae since May 4, 1954, delivered a letter to City Hall disclosing his proprietary interest in the subject property. On October 1, 1963, the City and interveners entered into an agreement providing for interveners to buy from the City certain police and fire equipment required for the high-rise buildings; for construction at interveners' expense of a new 12-inch water line; and for conversion of a gas-driven water pump in the City of Millbrae to a motor-driven pump. On that same date, the City Council approved the final subdivision map of the project. Lee E. Ham resigned as City Engineer on February 4, 1964.

The court found that 'the position of said Lee E. Ham as City Engineer and as part owner of the subject property and as engineer for the developer in and of itself amounts to a conflict of interest'; but that there was no evidence of wrongdoing, fraud, undue influence, or illegality on the part of any of the interveners including Lee E. Ham, nor was there evidence of injury or loss to the City of Millbrae. The court found the conflict to consist in the facts that Lee Ham was City Engineer from May 4, 1954, to February 4,...