San Diego Bldg. Contractors Ass'n v. City Council of City of San Diego
| Decision Date | 16 November 1973 |
| Citation | 110 Cal.Rptr. 758,35 Cal.App.3d 384 |
| Court | California Court of Appeals Court of Appeals |
| Parties | SAN DIEGO BUILDING CONTRACTORS ASSOCIATION et al., Plaintiffs and Respondents, v. CITY COUNCIL OF the CITY OF SAN DIEGO, Defendant and Appellant. Civ. 12607. |
John W. Witt, City Atty., and Thomas F. Calverley, Deputy City Atty., for defendant and appellant.
Webb, Welles, Isaac & Freedman and James R. Webb, San Diego, as amicus curiae on behalf of defendant and appellant.
White, Price, Peterson & Robinson and Paul A. Peterson and James B. Mehalick, San Diego, for plaintiffs and respondents.
This appeal by the City of San Diego involves the validity of a chartered city's zoning ordinance adopted by the initiative process. The ordinance provides the height of buildings to be constructed within a prescribed coastal zone of the City of San Diego shall not exceed 30 feet. 1 On November 7, 1972, a majority of the electors voted for adoption of the ordinance.
The trial court granted the respondents' motion for summary judgment addressed to the first and third of six causes of action alleged in their complaint for a declaratory judgment and injunctive relief filed December 1, 1972. The complaint alleges respondents, San Diego Building Contractors Association and Associated General Contractors of America, are California nonprofit corporations whose memberships are composed of organizations and individuals engaged in or otherwise interested in the construction of buildings and improvements on real property in San Diego. They allege some of the property is at present legally zoned for buildings which may have a height in excess of 30 feet and the property owners are assessed for and liable to pay taxes on the land. They also allege their property or that of their members is located within the zone described in the ordinance.
The first cause of action, seeking declaratory relief, challenges the validity of the ordinance on the basis the Charter of the City of San Diego does not permit the use of the initiative process to enact a zoning ordinance. The second cause of action, seeking declaratory relief, incorporates the allegations of the first cause 2 and alleges the initiative ordinance is unconstitutional because it attempts to regulate in a field occupied by state law and is in conflict with the state law. The third cause of action alleges facts concerning adopting and enforcing the ordinance causing the expenditure of public tax monies and giving rise to the need for injunctive relief. The fourth and fifth causes of actions seek injunctive relief alleging, respectively, the adoption and enforcement of the zoning ordinance by the City Council will deny respondents the use of their property without due process, and the ordinance violates guarantees or equal protection. The sixth cause of action alleges the ordinance is overboard in scope and violates the Fourteenth Amendment.
After argument on the motion for summary judgment the trial court, on January 29, 1973, ordered the city's answer to the first and third causes of action stricken and judgment for respondents on those causes entered as follows:
'I
'The initiative zoning ordinance set forth in Exhibit A to plaintiffs' complaint is void as an initiative measure and has no force or effect as law because (1) it was enacted by the initiative process and mandatory procedures for hearings held by the Planning Commission and the City Council required by the City Charter of San Diego and the Government Code were not followed, and (2) the failure to hold such hearings has deprived plaintiffs of that due process of law guaranteed by the Fourteenth Amendment to the United States Constitution.
'II
3
An important point not raised by the parties relates to the rule contained in Code of Civil Procedure section 437c that no judgment shall be entered prior to the termination of the action. Since the order on the motion for summary judgment pertains to only two of the six causes of action pleaded, it is, when viewed strictly as a summary judgment proceeding, a partial order which is nonappealable (King v. State of California, 11 Cal.App.3d 307, 310, 89 Cal.Rptr. 715; Lopes v. Capital Co., 192 Cal.App.2d 759, 762, 13 Cal.Rptr. 787).
The breadth of the order declaring the ordinance void and of no force or effect, however, makes determination of the remaining causes of action unnecessary for it affords respondents the essential relief they seek in the complaint. Additionally, the 'motion for summary judgment' proceedings in this case clearly show the parties had no factual issues to tender the court and sought only a determination of the purely legal question of the ordinance's constitutional validity. Under these circumstances we view the order entered January 29, 1973, as in the nature of a judgment on the pleadings from which an appeal lies. (See Jones-Hamilton Co. v. Franchise Tax Bd., 268 Cal.App.2d 343, 347, 73 Cal.Rptr. 896; 4 Witkin, Cal.Procedure, 2d Ed., Proceedings Without Trial, § 177, pp. 2829-2830.) 4
The merits of the case involve two issues: (1) Does the San Diego City Charter require use of the means prescribed by general law to enact a zoning ordinance and thus preclude the people from using the initiative process to adopt the ordinance as is the case in a general law city; 5 and (2) if not, does the use of the initiative process to adopt the ordinance violate guarantees of due process of law and make the ordinance invalid? We answer each question in the negative.
Initially, as pointed out in Bayless v. Limber, 26 Cal.App.3d 463, at pages 467 and 468, 102 Cal.Rptr. 647, 649, under article 1, section 2 of the California Constitution, 'All political power is inherent in the people' and under article 4, section 1 of the same document, 'The legislative power of this State is vested in the California Legislature . . . but the people reserve to themselves the powers of initiative and referendum.' In the case of a charter city dealing with municipal affairs, however, the legislative power is divided between the City Council on the one hand and the electors on the other. (See Cal.Const., art. 11, § 3, and art. 4, § 25; Dwyer v. City Council, 200 Cal. 505, 513, 253 P. 932; Lawing v. Faull, 227 Cal.App.2d 23, 29, 38 Cal.Rptr. 417.)
Subject only to constitutional limitations and preemptive state law, the charter of the city is the supreme law. (See Cal.Const., art. 11, § 3, subd. (a), and § 5, subd. (a); Harman v. City and County of San Francisco, 7 Cal.3d 150, 161, 101 Cal.Rptr. 880, 496 P.2d 1248.)
The initiative power extends to all municipal legislation. (Hopping v. Council of City of Richmond, 170 Cal. 605, 609-610, 150 P. 977; Dwyer v. City Council, supra, 200 Cal. 505, 511, 253 P. 932.) Included in such legislation are zoning ordinances which represent an exercise of the police power granted cities by California Constitution, article 11, section 7. (Lockard v. City of Los Angeles, 33 Cal.2d 453, 460, 202 P.2d 38; Dwyer v. City Council, supra, 200 Cal. 505, 511-512, 253 P. 932.)
The initiative power reserved to the people of a city by its charter must be liberally construed. (Farley v. Healey, 67 Cal.2d 325, 328, 62 Cal.Rptr. 26, 431 P.2d 650.) It is the duty of the courts to guard jealously this power of the people. (Martin v. Smith, 176 Cal.App.2d 115, 117, 1 Cal.Rptr. 307.)
Article III of the San Diego City Charter vests all of the city's legislative powers, 'except such legislative powers as are reserved to the people by the Charter, and the Constitution of the State,' in the City Council, 'subject to the terms of this Charter and of the Constitution of the State of California.' ( Section 23, also contained in article III relating to legislative power, provides in part:
The City Council has complied with the charter mandate to adopt an election code ordinance and establish procedures for the exercise of the initiative. (See San Diego City Ord. § 27.2501 et seq., particularly §§ 27.2504 to 27.2508, incl.)
In article V of the Charter, entitled 'Executive and Administrative Service,' section 41(c) provides, in 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.'
This language of the charter cannot properly be construed as excluding or otherwise limiting use of the initiative process for enacting zoning ordinances. The...
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