Rodriguez v. Solis

Decision Date02 December 1991
Docket NumberNo. F014133,F014133
Citation2 Cal.Rptr.2d 50,1 Cal.App.4th 495
CourtCalifornia Court of Appeals Court of Appeals
PartiesAntonio RODRIGUEZ et al., Plaintiffs and Appellants, v. Alvin P. SOLIS, as Director, etc., Defendant and Respondent.
OPINION

BUCKLEY, Associate Justice.

This is an appeal from a judgment denying appellants' petition for writ of mandate to compel respondent Director of Development for the City of Fresno (Director) to issue permits to erect freestanding signs on the premises of the Rodway Auto Center.

BR Enterprises (BR), a California general partnership, and Shasta Enterprises (Shasta), a California general partnership, are record owners of the property where Rodway Auto Center is located. Rodway Hyundai, a California corporation, doing business as Rodway Hyundai-Jeep/Eagle; Fresno Imports, a California corporation, doing business as Fresno Toyota Isuzu; Valley Imports, a California corporation, doing business as Rodway Mazda Buick; and Century Ford, a California corporation, doing business as Rodway Auto Center Auto Body, sell and service automobiles at Rodway Auto Center. Antonio Rodriguez, an individual, is the managing general partner of BR and Shasta and sole shareholder of the corporations involved in this appeal. (The parties are hereafter collectively referred to as appellants.)

Since 1987, appellants have developed Rodway Auto Center as a single automobile sales and service complex. Rodway Auto Center is located in the City of Fresno on approximately 27 acres bordered by Freeway 41 on the east, Bullard Avenue to the north and Blackstone Avenue to the west. In 1988, appellants submitted a permit application with the Director to erect two freestanding signs identifying the names "Ford" and "Mazda" for advertisement purposes. The permit was approved and the signs were placed within 50 feet of Freeway 41. The procedure for processing permit applications was thereafter reorganized by the Director because of his concern that "staff was not adequately reviewing the signs ... in accordance with Section 13-902."

On February 27, 1989, appellants submitted sign permit application 89-42 to erect a 28-foot high freestanding advertising sign on the eastern border of the property within 50 feet of Freeway 41 and south of the Mazda sign. This application was conditionally approved subject to complying with the 50-foot setback restriction. 1

Appellants requested a variance of the 50-foot setback requirement with the Fresno City Planning Commission, which was denied. On October 12 and December 5, 1989, appellants filed sign permit applications for approval to erect freestanding advertising signs on the eastern portion of the property outside the 50-foot setback area.

In December 1989, the Director denied all three sign permit applications on the ground that the signs would not be compatible with the landscaped environment of Freeway 41. The petition for writ of mandate followed.

DISCUSSION
I.

Did the Director have a ministerial duty to issue the sign permits?

Appellants petitioned for traditional mandamus pursuant to Code of Civil Procedure section 1085 to compel the Director to issue permit applications. Generally, Code of Civil Procedure section 1085 may only be employed to compel the performance of a duty which is purely ministerial in character. (State of California v. Superior Court (1974) 12 Cal.3d 237, 247, 115 Cal.Rptr. 497, 524 P.2d 1281.)

A ministerial act is an act that a public officer is required to perform in a prescribed manner in obedience to the mandate of legal authority and without regard to his own judgment or opinion concerning such act's propriety or impropriety, when a given state of facts exists. Discretion, on the other hand, is the power conferred on public functionaries to act officially according to the dictates of their own judgment. (People ex rel. Fund American Companies v. California Ins. Co. (1974) 43 Cal.App.3d 423, 431, 117 Cal.Rptr. 623.)

The trial court denied the petition by concluding in pertinent part that the Director was not under a ministerial duty to issue the permits. In reviewing the trial court's ruling on a writ of mandate, the appellate court is ordinarily confined to an inquiry as to whether the findings and judgment of the trial court are supported by substantial, credible and competent evidence. This limitation, however, does not apply to resolution of questions of law where the facts are undisputed. In such cases, as in other instances involving matters of law, the appellate court is not bound by the trial court's decision, but may make its own determination. (Evans v. Unemployment Ins. Appeals Bd. (1985) 39 Cal.3d 398, 407, 216 Cal.Rptr. 782, 703 P.2d 122.)

Whether the Director had a ministerial duty to issue the permit applications is dependent upon the interpretation of the relevant municipal code provisions. Statutory construction is a question of law for the courts and the rules of statutory construction applicable to statutes are also applicable to local ordinances. (Aptos Seascape Corp. v. County of Santa Cruz (1982) 138 Cal.App.3d 484, 497, 188 Cal.Rptr. 191.)

The property where Rodway Auto Center is located is in the C-6 heavy commercial district. Chapter 12 of the Municipal Code of City of Fresno, 2 entitled "City Planning," includes the city's comprehensive zoning ordinance. The applicable restrictions on outdoor advertising in the C-6 district are found in section 12-222.5-K in article 2 which provides:

"Signs and advertising structures may be permitted in the 'C-6' District under the conditions set forth in the following paragraph:

"........................

"3. Size. The provisions of Section 12-306-K shall apply."

Section 12-306-K provides:

"Signs, billboards and advertising structures may be erected and maintained in any district where such use is permitted, subject to Article 2 of Chapter 12 and Articles 9 and 10 of Chapter 13 of this Code." (Emphasis added.)

Chapter 13 is entitled "Buildings and Signs." Section 13-906 of article 9, referred to as "Sign Ordinance," requires an issuance of a permit before a sign may be installed.

The procedure in processing such applications is set forth in section 13-907:

"PROCESSING SIGN PERMIT APPLICATIONS.

Applications for a sign permit shall be filed with the Building Official. The Building Official shall review sign permit applications within seven (7) working days after the application has been accepted as complete and shall make a determination to either approve, conditionally approve, or deny the application. This review shall consider the size, design, colors, character and location of the proposed signs. The Building Official shall not approve a sign permit application unless he finds the proposed sign is consistent with the intent and provisions of this article." (Emphasis added.)

The Director denied the permit applications pursuant to subdivision (b) of section 13-902 of article 9, entitled "SIGNS," which states in full:

"The purpose of this article is to promote and protect the public health, safety and welfare by regulating existing and proposed signs of all types within the city in order to assure that they are:

"(a) Legible in the circumstances in which they are seen;

"(b) Compatible with their surroundings;

"(c) Appropriate to the type of activity to which they pertain;

"(d) Expressive of the identity of individual properties or of the community as a whole; and

"(e) Constructed, altered and repaired according to accepted and approved standards." (Emphasis added.)

Article 10 of that chapter is entitled "SIGNBOARDS ON PROPERTY ADJACENT TO LANDSCAPED FREEWAYS." Section 13-1002 states:

"No advertising display shall be placed or maintained on property adjacent to a section of freeway which has been or hereafter may be landscaped ... if the advertising display is designed to be viewed primarily by persons traveling on such landscaped section of a freeway."

Section 13-1006 provides three exceptions to section 13-1002 stating in pertinent part:

"The provisions of this article shall not apply to any of the following:

"........................

"(3) Signs which advertise the business conducted or goods manufactured, produced, or sold, or services rendered, on the property upon which such advertising display is placed." (Emphasis added.)

Distilling the numerous ordinances cited above, it can be seen that advertising signs in commercial districts are permitted so long as permit procedures are followed and the proposed sign is found to be consistent with the intent and provisions of article 9 which includes compatibility with property adjacent to landscaped freeways.

Appellants do not dispute the proposed signs are "advertising displays" and that Freeway 41 is a "landscaped freeway" as those terms are used in section 13-1002. They correctly assert the proposed signs are otherwise within the exception under subdivision (3) of section 13-1006 to the complete ban of advertising displays adjacent to a landscaped freeway.

Appellants contend that because they applied for permits to erect signs adjacent to a landscaped freeway designating the type of automobiles sold and serviced at the premises, section 13-1006, subdivision (3) as the specific statute preempts application of the general statute of section 13-902.

Appellants rely on the principle that where a general statute conflicts with a special statute, the special statute will be considered an exception to the general statute. However, the special statute will work as a repeal by implication only where it is in direct conflict with the general statute, repealing the general statute only to the extent the two statutes are irreconcilable. Repeals by...

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