Taschner v. City Council

• Decision Date: 08 March 1973
• Citation: 107 Cal.Rptr. 214,31 Cal.App.3d 48
• Court: California Court of Appeals Court of Appeals
• Parties: Vern M. TASCHNER, Petitioner and Appellant, v. CITY COUNCIL OF the CITY OF LAGUNA BEACH, Respondent. Civ. 12090.

Page 214

107 Cal.Rptr. 214

31 Cal.App.3d 48

Vern M. TASCHNER, Petitioner and Appellant, v. CITY COUNCIL OF the CITY OF LAGUNA BEACH, Respondent.

Civ. 12090.

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

March 8, 1973.

Hearing Denied May 16, 1973.

[31 Cal.App.3d 52] Lane, Hoag, Overholt & Bonaparte, Los Angeles, and E. Gene Crain, Newport Beach, for petitioner and appellant.

Tully H. Seymour, Newport Beach, and William M. Wilcoxen, Laguna Beach, for respondent.

OPINION

TAMURA, Associate Justice.

This appeal involves the question whether a general law city may enact a building height limit ordinance through the initiative process. By a petition for writ of mandate in the court below, petitioner sought to challenge the validity of an initiative building height limit ordinance of the City of Laguna Beach. Respondent's general demurrer was sustained without leave to amend and petitioner appeals from the ensuing judgment of dismissal.

In the posture in which this case comes before us, the facts alleged in the petition for writ of mandate must be deemed to be true. (Isrin v. Superior Court, 63 Cal.2d 153, 155, 45 Cal.Rptr. 320, 403 P.2d 728.) Those facts may be summarized as follows:

The City of Laguna Beach is a general law city. Pursuant to an initiative petition for the adoption of an ordinance which would limit the height of buildings which could be constructed in the city to 36 feet and not more than three stories, ¹ respondent called a special election for the purpose of submitting the measure to voters of the city. The election was duly held and a majority of those voting in the election voted in favor of the measure. ²

Following certification of the result of the election, respondent adopted resolutions directing the City Planning Commission to take appropriate steps toward modification of the city zoning ordinance and land use plan to conform to the initiative measure and extending the moratorium on issuance of building permits for buildings which would exceed the initiative height limitation pending the effective date of the ordinance. ³

Petitioner alleged he was a qualified elector, taxpayer, and owner of a real property within the city. He charged that the initiative was invalid on two grounds: (1) It was enacted without complying with the procedures prescribed by the State Planning and Zoning Law (Gov.Code, § 65000 et seq., hereinafter State Zoning Law) and (2) it violated the State Zoning Law by prohibiting variances and conditional use permits. He alleged that city officials responsible for the administration of the zoning and building ordinances were confused concerning the validity of the initiative measure and that consequently petitioner and other property owners were unable to plan for the future development of their properties. The prayer was for a writ 'ordering respondent to consider (the initiative) as an illegal ordinance' and not to enforce its provisions.

Respondent interposed a general demurrer and answer to the petition. Following argument on the demurrer, the judge rendered a memorandum opinion in which he decided that the initiative ordinance was valid and that the general demurrer should be sustained without leave to amend. In addition, the judge held that independent of the general demurrer the petition should be denied in the exercise of the court's discretionary power to grant or deny the extraordinary relief sought. Judgment was entered in accordance with the memorandum decision.

Petitioner contends the ordinance is a zoning measure and that its enactment by the initiative process is proscribed by the State Zoning Law, citing Hurst v. City of Burlingame (1929) 207 Cal. 134, 277 P. 308, and Laguna Beach Taxpayers' Assn. v. City Council (1960) 187 Cal.App.2d 412, 9 Cal.Rptr. 775.

Respondent urges that apart from the merits of the controversy, the judgment of dismissal was justified on the following procedural grounds: (1) Petitioner lacked standing to maintain the action and (2) mandate was not a proper remedy. On the merits respondent advances two theories in support of the ordinance: (1) The ordinance is not a zoning regulation and (2) considered as a zoning measure, its enactment constituted a valid exercise of the people's constitutional power to legislate by initiative.

For reasons which follow we have concluded (1) that the judgment of dismissal cannot be sustained on the procedural grounds advanced by respondent and (2) that the ordinance is a zoning regulation and as such its enactment by the initiative process was in violation of the State Zoning Law and the due process clause of the Fourteenth Amendment.

I

Preliminarily, we dispose of respondent's procedural contentions.

Insofar as standing is concerned, the allegation that petitioner was an elector, taxpayer, and owner of real property in the city was sufficient to give him standing to challenge the validity of the ordinance. (Tustin Heights Assn. v. Bd. of Supervisors, 170 Cal.App.2d 619, 636--637, 339 P.2d 914.) A private citizen may apply for a writ of mandate 'where there is not a plain, speedy, and adequate remedy' at law and he is a 'party beneficially interested.' (Code Civ.Proc., § 1086.) One who has some special interest to be subserved or some particular right to be preserved or protected independent of that which he holds in common with the public at large has a sufficient beneficial interest. (Fuller v. San Bernardino Valley Mun. Wat. Dist., 242 Cal.App.2d 52, 57, 51 Cal.Rptr. 130; Kappadahl v. Alcan Pacific Co., 222 Cal.App.2d 626, 643, 35 Cal.Rptr. 354; Tusin Heights Assn. v. Bd. of Supervisors, Supra, 170 Cal.App.2d 619, 636--637, 339 P.2d 914.) As a property owner, petitioner's right to be free from height limitations in the development of his property constituted a sufficient special property interest to be subserved to give him standing to seek an adjudication as to the validity of the ordinance. The allegation that city officials were uncertain as to the validity of the ordinance, the consequent inability of petitioner and others similarly situated to plan for future development of their properties, and the desirability of avoiding a multiplicity of actions were sufficient allegations to establish inadequacy of legal remedies.

As to the propriety of the relief sought, respondent contends that petitioner is, in effect, seeking to compel the city council to vacate the ordinance and implementing resolutions. It is urged that such acts being legislative in nature are not controllable by mandate. Assuming that respondent is correct concerning the propriety of the relief sought (see Hilton v. Board of Supervisors, 7 Cal.App.3d 708, 714, 86 Cal.Rptr. 754; Bowles v. Antonetti, 241 Cal.App.2d 283, 286--287, 50 Cal.Rptr. 370; Tandy v. City of Oakland, 208 Cal.App.2d 609, 611, 25 Cal.Rptr. 429) the mere fact that the wrong relief was sought would not have justified the order sustaining a general demurrer without leave to amend.

Frequently a complaint for declaratory relief and petition for mandate are combined in a single action. (15 Cal.Jur.2d Declaratory Relief, § 27, p. 148.) From the allegations of the petition it is apparent that what petitioner was really seeking was a decree declaring the initiative ordinance invalid and an order enjoining its enforcement. The validity of a zoning ordinance or regulation may be tested by a declaratory relief action (McCarthy v. City of Manhattan Beach, 41 Cal.2d 879, 882, 264 P.2d 932) as well as by mandamus (Roman Cath. etc. Corp. v. City of Piedmont, 45 Cal.2d 325, 289 P.2d 438; Floresta, Inc. v. City Council,190 Cal.App.2d 599, 611, 12 Cal.Rptr. 182). As against a general demurrer, a complaint for declaratory relief may be treated as a petition for mandate (Scott v. City of Indian Wells, 6 Cal.3d 541, 546, 99 Cal.Rptr. 745, 492 P.2d 1137; Salsbery v. Ritter, 48 Cal.2d 1, 7, 306 P.2d 897; Boren v. State Personnel Board, 37 Cal.2d 634, 638, 234 P.2d 981), and where a complaint for declaratory relief alleges facts sufficient to entitle plaintiff to mandate, it is error to sustain a general demurrer without leave to amend. (Salsbery v. Ritter, supra, 48 Cal.2d at 7, 306 P.2d 897.) We see no reason why the converse should not hold equally true. As against a general demurrer, a complaint is sufficient if the facts alleged show that plaintiff is entitled to some form of judicially cognizable relief. (Scott v. City of Indian Wells, Supra, 6 Cal.3d 541, 546, 99 Cal.Rptr. 745, 492 P.2d 1137; Boren v. State Personnel Board, Supra, 37 Cal.2d 634, 638, 234 P.2d 981.) '(I)f upon a consideration of all the facts stated, it appears that the plaintiff is entitled to any relief at the hands of the court against the defendants, the complaint will be held good, although the facts may not be clearly stated or may be intermingled with a statement of other facts irrelevant to the cause of action shown, Or although the plaintiff may demand relief to which he is not entitled under the facts alleged.' (Emphasis supplied.) (Scott v. City of Indian Wells, Supra, 6 Cal.3d 541, 549, 99 Cal.Rptr. 745, 750, 492 P.2d 1137, 1142.) A complaint for declaratory relief is sufficient if it sets forth facts showing the existence of a controversy relating to the legal rights and duties of the parties under a written instrument and requests that those rights and duties be adjudicated. (Bennett v. Hibernia Bank, 47 Cal.2d 540, 549--550, 305 P.2d 20; Columbia Pictures Corp. v. DeToth, 26 Cal.2d 753, 760, 161 P.2d 217.) The petition in the instant case contains the requisite allegations for declaratory relief.

Treating the petition as a complaint for declaratory relief, however, raises the further question whether a general demurrer should have been sustained without leave to amend. Strictly speaking, a general demurrer is not an appropriate means of testing the merits of the controversy in a declaratory relief action because plaintiff is entitled to a declaration of his...