Mitchell v. Morris

• Decision Date: 03 November 1949
• Citation: 94 Cal.App.2d 446,210 P.2d 857
• Court: California Court of Appeals Court of Appeals
• Parties: MITCHELL v. MORRIS. Civ. 17192.

Page 857

210 P.2d 857

94 Cal.App.2d 446

MITCHELL v. MORRIS.

Civ. 17192.

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

Nov. 3, 1949.

A. K. Phelps, Los Angeles, for appellant.

Ray L. Chesebro, City Attorney, Bourke Jones, Assistant City Attorney, Alan G. Campbell, Deputy City Attorney, Los Angeles, for respondent.

WHITE, Presiding Justice.

Appellant herein sought a writ of mandate to compel respondent Superintendent of the Department of Building and Safety of the City of Los Angeles to issue a building permit pursuant to an application therefor. Upon presentation of the petition to the Superior Court an alternative writ was denied, no hearing being had or evidence taken.

The allegations of the petition for a writ of mandate are that in December, 1948, plaintiff filed with the Department of Building and Safety plans and specifications and an application for a permit to build a dwelling house, and paid the fees required by law; that plaintiff amended the plans and specifications 'and caused them to fully comply with all lawful requirements of the Department of Building and Safety and with all lawful provisions of the Building Code of the City of Los Angeles.'

It was then alleged:

'That nevertheless the officials and employees of the Department of Building and Safety refused and continue to refuse to issue to plaintiff a building permit, stating and giving as the reason of such refusal that the lot upon which plaintiff proposes to construct the dwelling house, as shown upon the said plans and specifications does not front upon a public street nor upon a private easement determined by the City Planning Commission of the City of Los Angeles to be adequate.

'That plaintiff thereafter requested the City Planning Commission to approve the private easement upon which plaintiff's proposed building lot fronts, but that said City Planning Commission wrongfully, arbitrarily, and capriciously has refused and continues to refuse to approve said private easement.

'That the ordinances of the City of Los Angeles purport to invest the City Planning Commission with the power to determine whether or not a private roadway easement is adequate; but that the ordinances of the City of Los Angeles wholly fail to set up any standards of any kind whatsoever upon which said determination of the City Planning Commission is to be based.

'That there is no lawful authority, directing and empowering the officials and employees of the Department of Building and Safety to withhold and refuse the granting of a building permit upon the grounds specified in the rejection of plaintiff's application. That the action of the defendant and the various employees acting under his direction in refusing to grant the said building permit in accordance with plaintiff's application is wholly unreasonable, arbitrary, capricious and wrongful.'

Appellant in his brief states that this appeal is based 'upon the sole ground that the ordinance requiring that private easements be approved by the City Planning Commission is unconstitutional.' It is asserted that the legislative body, the city council, has attempted to delegate its lawmaking powers to the planning commission, in that it has left to the commission the determination of whether a private easement is 'adequate for purposes of access' without establishing any standard by which the commission might determine, as a fact, whether such easement is adequate, and thus has attempted to vest in the commission the power to enact laws and determine policy.

The applicable ordinance was not brought here on this appeal, but we deduce from the statements in the briefs that under the building ordinances of the city, a dwelling house may be constructed only upon a 'lot'; that section 12.03 of the zoning ordinance defines a lot as 'a parcel of land occupied or to be occupied by a use, building or unit group of buildings and accessory buildings, together with such yard, open spaces, lot width and lot area as are required by this article, and having frontage upon a street (other than and alley) or a private easement determined by the (Planning) Commission to be adequate for purposes of access.' (Emphasis added.)

There can be no quarrel with the rule of law upon which appellant relies, that an attempted delegation of power to an administrative board, where no standards are established by which the board shall be governed in its actions is in effect an attempted delegation to such board of the power to enact a law. Dominguez Land Corp. v. Daugherty, 196 Cal. 468, 484, 238 P. 703; Tarpey v. McClure, 190 Cal. 593, 600, 213 P. 983. Nor would there be any useful purpose served in attempting to distinguish cases cited by appellant such as In re Peppers, 189 Cal. 682, 209 P. 896, 897, where an act purported to empower the Director of Agriculture to prohibit the shipment of oranges 'frosted to the extent of endangering the reputation of the citrus industry'; or Hewitt v. State Board of Medical Examiners, 148 Cal. 590, 84 P. 39, 40, 3 L.R.A.,N.S., 896, 113 Am.St.Rep. 315, 7 Ann.Cas. 750, authorizing revocation of a physician's license for using 'grossly improbable statements' in advertising.

As pointed out by respondent, a more necessary regulation could hardly be imagined than one which forbids the erection and maintenance of a dwelling house in a modern city except where such dwelling has adequate and permanent access to a public street. A municipality is properly interested that every dwelling house within its limits may be reached by the fire department, police department, and other agencies charged with the responsibility of protecting the public peace, safety and welfare. A municipality might properly prohibit entirely the erection of a dwelling upon property which had no access to a public street except...