Roney v. Board of Sup'rs of Contra Costa County

• Decision Date: 30 January 1956
• Citation: 292 P.2d 529,138 Cal.App.2d 740
• Court: California Court of Appeals Court of Appeals
• Parties: Jesse RONEY and Emma Roney, his wife, Plaintiffs and Appellants, v. The BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, State of California and H. L. Cummings, Ray S. Taylor, J. Frederickson, W. S. Buchanan and I. T. Coyak, as Members of said Board of Supervisors, The Planning Commission of Contra Costa County, State of California and J. P. Conners, G. F. McCormick, E. H. Ward, Arthur W. Young, Joseph D. De-Costa, George W. Honegger and Charles E. Brown, as Members of said Planning Commission, Defendants and Respondents. Civ. 16628. . Division 2, California

Page 529

292 P.2d 529

138 Cal.App.2d 740

Jesse RONEY and Emma Roney, his wife, Plaintiffs and Appellants, v. The BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, State of California and H. L. Cummings, Ray S. Taylor, J. Frederickson, W. S. Buchanan and I. T. Coyak, as Members of said Board of Supervisors, The Planning Commission of Contra Costa County, State of California and J. P. Conners, G. F. McCormick, E. H. Ward, Arthur W. Young, Joseph D. De-Costa, George W. Honegger and Charles E. Brown, as Members of said Planning Commission, Defendants and Respondents.

Civ. 16628.

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

Jan. 30, 1956.

Rehearing Denied Feb. 29, 1956.

Hearing Denied March 28, 1956.

Royal E. Handlos, San Francisco, Carlson, Collins, Gordon & Bold, Martinez, for appellants.

Francis W. Collins, Dist. Atty., County of Contra Costa, Matthew S. Walker, Deputy Dist. Atty., Martinez, for respondents.

DEVINE, Justice pro tem.

Plaintiffs, who are the owners of land near Port Chicago in the County of Contra Costa, petitioned the Superior Court for a Writ of Mandate directing certain officials of the county to issue a land use permit to allow them to create a residential subdivision in an area zoned for heavy industry, and directing the officials to approve a subdivision map which had been filed. They also sought a declaratory judgment setting forth the rights and duties of the parties. The court denied the Writ of Mandate and declared that the county might deny a land use permit for residential purposes where it appears that such land use permit 'will be deleterious to the public health, safety or welfare and the orderly development of the County of Contra Costa', and declared that under the circumstances disclosed by the record in this case, the denying of the land use permit was proper. From this judgment plaintiffs appeal.

The first contention of appellants is that the county planning commission and the board of supervisors have no discretion, under the zoning ordinance, to deny the land use permit, and that the granting of such permit is but a ministerial act.

The County of Contra Costa has adopted a zoning ordinance under which, at the time of the commencement of this proceeding, more than 90% of the unincorporated territory of the county was zoned. The zoning ordinance created districts lettered from A to K, the A district allowing single residential units only, and the other districts allowing uses progressively farther removed from those of the single family unit, until section K is reached, which provides for unrestricted district. The land of appellants is in section J. in which under the ordinance, use for heavy industry is allowable without the necessity for a land use permit, but use for all other purposes, including residential, is permitted 'after the granting of land use permits therefor.'

That the ordinance contemplates the use of discretion and judgment on the part of the planning commission in the first instance and, later, of the board of supervisors is shown by the Master Plan of the County, and by reference to the Zoning Ordinance and its history.

The Zoning Ordinance and the Subdivision Ordinance of Contra Costa County are sections of the Master Plan of the County, and the Subdivision Ordinance provides that 'It all respects the subdivision will be considered in its relation to the adopted or proposed Master Plan of the County.' This test was a sufficient legislative guide. Otis v. City of Los Angeles, 52 Cal.App.2d 605, 126 P.2d 954; Wheeler v. Gregg, 90 Cal.App.2d 348, 203 P.2d 37. The record shows that both the planning commission and the board of supervisors diligently and fairly considered the application for the land use permit in relation to the Master Plan of the County. The Master Plan of the county was adopted pursuant to the authority of the legislative body of the county to act and, indeed, the duty to act specifically imposed by the legislature. Secs. 65200, 65204 and 65250 of the Government Code, as they then stood, now supplanted by Chapter 3, Title 7 of the same Code. It is not to be thought that the legislative body of the county intended, especially after the amendment to its zoning ordinance as set forth below, in view of the state legislative mandate for master planning, to make the subject of land use permits a merely ministerial one.

Evidence that the decision is discretionary and not ministerial is found in the elaborate procedure set forth in section 7 of the Zoning Ordinance for applying for permits for uses 'for which land use permits are required', and the procedure established for the hearing. It is not necessary to set forth these procedures in detail; briefly they include posting and publication of notice for designated times, a hearing at which all persons favoring or opposing the application shall be heard, a decision by the Planning Commission 'after considering all the facts' and a consideration by the Board of Supervisors of the Planning Commission's recommendation at a regular meeting of the Board of Supervisors.

The history of the ordinance gives additional proof of the character of the requirement for and use of permits. The words 'after the granting of use permits therefor', and applying to uses for other than that of heavy industry, were placed in the ordinance after the Superior Court in an earlier decision had held that the ordinance, as it then stood, did not prevent domestic use in the heavy industrial zone.

It is conceded by appellants that if the land use permit were properly denied, the fact that approval of the subdivision map also was denied is of no practical consequence. The extent of the authority of the governing body in respect of approval of subdivision maps is set forth in the Business and Professions Code, Sections 11500, et seq. (the Subdivision Map Act), but the Master Plan including the Zoning Ordinance of the county based on statutes of equal dignity with the Subdivision Map Act as set forth above, controls the uses to which the land may be put, and may exclude a subdivision entirely, if no constitutional rights be invaded, a question now to be considered.

Appellants' next proposition is that the zoning ordinance barring, as it does, residential use in a heavy industrial district, is unreasonable, confiscatory and uncostitutional, in that the exclusion of residences bears no reasonable relationship to the health, safety, morals or general welfare of the community.

The courts have had but little experience with this type of ordinance, as appears below, and it is something of an inversion of the classical type of zoning as it existed in the earlier days of zoning. However, the plan has become fairly widespread and Rathkopf, The Law of Zoning and Planning (1949) Supplement and Digest (1951), lists 16 among the metropolitan areas employing exclusive industrial zones.

The first case, and the only case cited by both parties on the subject of exclusive industrial zoning is that of Corthouts v. Town of Newington, 140 Conn....