San Diego Bldg. Contractors Assn. v. City Council

Decision Date26 December 1974
Citation118 Cal.Rptr. 146,13 Cal.3d 205,529 P.2d 570
CourtCalifornia Supreme Court
Parties, 529 P.2d 570, 72 A.L.R.3d 973 SAN DIEGO BUILDING CONTRACTORS ASSOCIATION et al., Plaintiffs and Respondents, v. CITY COUNCIL OF the CITY OF SAN DIEGO, Defendant and Appellant. L.A. 30250. In Bank

John W. Witt, City Atty., and Thomas F. Calverley, Deputy City Atty., for defendant and appellant.

Evelle J. Younger, Atty. Gen., Carl Boronkay, Asst. Atty. Gen., Dennis A. Antenore, Deputy Atty. Gen., Tully H. Seymour, City Atty., William M. Wilcoxen, Laguna Beach, Webb, Welles, Isaac & Freedman, Webb & Isaac, and James R. Webb, San Diego, as Amici Curiae on behalf of defendant and appellant.

White, Price, Peterson & Robinson, Paul A. Peterson, Peter P. Gamer and James B. Mehalick, San Diego, for plaintiffs and respondents.

Acret & Perrochet, Harry N. Zavos, Los Angeles, and James M. Baratta, Beverly Hills, as Amici Curiae on behalf of plaintiffs and respondents.

TOBRINER, Justice.

In this case we must determine whether the voters of San Diego, and, more generally, the electors of any charter city in California, may validly enact a zoning ordinance through the initiative process. Plaintiffs, building contractor associations, contend that the provisions of both the San Diego City Charter and the 'due process' clause of the federal Constitution preclude the city from adopting any zoning ordinance without affording all affected property owners 'notice and hearing'; because the city's present initiative procedure contains no provision for such notice and hearing, plaintiffs assert that zoning ordinances cannot be adopted by initiative. Although the trial court agreed with plaintiffs and entered summary judgment in their favor, we have concluded that its decision was in error and, accordingly, we reverse.

As we explain, settled constitutional doctrine establishes that due process requires 'notice and hearing' only in quasi-judicial or adjudicatory settings and not in the adoption of general legislation. Inasmuch as the zoning ordinance at issue here, establishing a uniform height limitation for buildings which may be erected along the city's coastline in the future, is unquestionably a general legislative act, the due process requirements of notice and hearing do not apply. Moreover, as we demonstrate, the provisions of the San Diego City Charter define the citizenry's fundamental right to initiate legislation in broad and generous terms and do not withhold the initiative power from zoning matters. Consequently, we conclude that citizens of San Diego may enact zoning ordinances by initiative and that the ordinance challenged in the instant case is valid.

In November 1972, the voters of the City of San Diego, a charter city, enacted an ordinance establishing a 30-foot height limitation for buildings which may be constructed within a prescribed coastal zone in the city. 1 The ordinance was adopted in accordance with the initiative procedure set forth in the San Diego City Charter and Elections Code, procedures authorized by article XI, section 5, of our state Constitution (In re Pfahler (1906) 150 Cal. 71, 88 P. 270; Mortin v. Broderick (1897) 118 Cal. 474, 487, 50 P. 644). All parties agree that the prescribed initiative procedures were complied with in full.

Subsequent to the adoption of the ordinance, plaintiffs instituted the present action challenging on various grounds the validity of the ordinance. After a hearing, the trial court granted plaintiffs' motion for summary judgment, concluding that both the provisions of the San Diego City Charter and the due process clause of the Fourteenth Amendment to the United States Constitution prohibit the enactment of a zoning ordinance through the initiative process; the court enjoined the city from enforcing the ordinance. The City of San Diego appeals from the decision.

1. The provisions of the San Diego City Charter authorize the enactment of all ordinances, including zoning ordinances, through the initiative process.

Plaintiffs initially contend that the San Diego City Charter itself precludes the enactment of a zoning ordinance by the initiative process. As we explain, we find this argument totally untenable.

Article III, section 11 of the San Diego City Charter vests all of the city's legislative powers in the city counsel 'except such legislative powers as are reserved to the people by the Charter and the Constitution of the State. . . .' Article III, section 23 of the charter elaborates the people's reserved legislative powers, providing in broad terms: 'The right to recall municipal officers and the powers of the initiative and referendum are hereby reserved to the people of the City. Ordinances may be initiated; and referendum may be exercised on any ordinance passed by the Council except an ordinance which by the provisions of this charter takes effect immediately upon its passage; and any elective officer may be recalled from office.' (Emphasis added.)

Through these provisions, the charter establishes the right of the people to initiate ordinances on all legislative matters. The charter makes no exception for 'zoning ordinances,' as distinguished from any other exercise of the police power, and past cases establish beyond question that a charter's broad grant of the initiative and referendum powers clearly applies to zoning measures. (See, e.g., Dwyer v. City Council (1927) 200 Cal. 505, 511--515, 253 P. 932; Bayless v. Limber (1972) 26 Cal.App.3d 463, 468--469, 102 Cal.Rptr. 647; Fletcher v. Porter (1962) 203 Cal.App.2d 313, 322, 21 Cal.Rptr. 452.)

Although nothing in the charter provisions dealing with the city's legislative powers in general, or with the initiative procedure in particular, provides the slightest indication that zoning measures were intended to be exempted from the initiative process, plaintiffs argue that a remote provision of the charter impliedly precludes the use of the initiative in such matters. Article V of the charter, entitled 'Executive and Administrative Services,' contains a provision, section 41(c), which provides in relevant part: 'The City Planning Commission shall be organized as provided by the laws of the State and have such powers and perform such duties as are prescribed by such laws.' State law prescribes certain minimum procedures, including notice and hearing, to be followed by planning commissions generally (see Gov.Code, §§ 65150, 65854), and since San Diego's current initiative process does not encompass such notice and hearing procedures, plaintiffs argue that section 41(c) impliedly precludes the use of the initiative in zoning matters.

This contention, however, completely overstates the reach of section 41(c). The subject of section 41(c) is the city planning commission, not the city council or the people of the city. The section does not purport to limit the power of the people in the exercise of the initiative power, nor does it prescribe any special legislative procedures to be followed by the city council in the area of zoning. 2 In short, the section simply governs the city planning commission's conduct of its affairs when that commission is authorized to act under the city charter; the section in no manner attempts to impinge on the people's initiative prerogative. 3 Accordingly, we conclude that the San Diego City Charter authorizes the enactment of the challenged ordinance through the initiative process.

2. Under the 'due process' clause of the United States Constitution, general zoning legislation may be enacted without affording affected landowners 'notice and hearing.'

Plaintiffs contend, however, that even if the adoption of zoning measures by initiative is permitted by the San Diego City Charter, as we have held, such procedure directly conflicts with the due process clause of the United States Constitution. Relying on statements in numerous recent decisions declaring that the 'root requirement (of the due process clause is) that an individual be given an opportunity for a hearing Before he is deprived of any significant property interest' (Boddie v. Connecticut (1971) 401 U.S. 371, 379, 91 S.Ct. 780, 786, 28 L.Ed.2d 113 (fn. omitted); see Goldberg v. Kelly (1970) 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287; Sniadach v. Family Finance Corp. (1969) 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349), plaintiffs assert that because the challenged zoning ordinance significantly affects their real property rights, they had a constitutional right to 'notice and hearing' before the zoning law was enacted. Since San Diego's initiative procedure does not afford to affected landowners such 'notice and hearing,' plaintiffs conclude that the enactment of the instant zoning ordinance violated their constitutional rights.

Plaintiffs' entire due process argument, however, is founded on an erroneous premise. From the inception of this nation's legal system, statutes of general application have regularly been enacted without affording each potentially affected individual notice and hearing. As we shall explain, it is black letter constitutional law that due process requires 'notice and hearing' only in quasi-judicial or adjudicatory settings and not with respect to the adoption of general legislation. Since the enactment of the instant general zoning ordinance through the initiative process was unquestionably a legislative, as distinguished from adjudicative, act, the constitutional requirements of 'notice' and 'hearing' do not apply.

Justice Oliver Wendell Holmes, writing for a unanimous United States Supreme Court in Bi-Metallic Co. v. State Board of Equalization of Colorado (1915) 239 U.S. 441, 145, 36 S.Ct. 141, 142, 60 L.Ed. 372, clearly articulated the due process principles that govern the instant case. Justice Holmes declared: 'Where a rule of conduct applies to more than a few people, it is impracticable that everyone should have a direct voice in its adoption. The...

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