Toso v. City of Santa Barbara
| Citation | 88 Cal.App.3d 654,151 Cal.Rptr. 912 |
| Parties | Harold A. TOSO et al., Respondents and Cross-Appellants, v. The CITY OF SANTA BARBARA et al., Appellants and Cross-Respondents. Civ. 49261, 49990. |
| Decision Date | 22 January 1979 |
| Court | California Court of Appeals |
Hatch & Parent, Santa Barbara, Thorpe, Sullivan, Workman, Thorpe & O'Sullivan, Los Angeles, and Susan F. Dewey, Santa Barbara, for respondents and cross-appellants.
A. Barry Cappello, City Atty., and Frederick W. Clough, for appellants and cross-respondents.
This is an action filed by Toso individually and as agent of others against the City of Santa Barbara and all members of the city council who held office during the year 1974. The first cause of action seeks damages under section 1246.3 of the Code of Civil Procedure; the second cause of action seeks damages for inverse condemnation; the third cause of action seeks a writ of mandate to compel the city to grant to Toso a rezoning of the property involved; the fourth and fifth cause of action seek declaratory relief. After a trial, judgment was entered for the defendants on the first two causes of action and in favor of plaintiffs on the third, fourth, and fifth causes of action. The effect of the judgment in favor of plaintiffs was to vacate the proceedings hereinafter discussed that denied Toso a requested rezoning and to order the city to grant the rezoning requested.
The city has appealed from the judgment against it on the third, fourth, and fifth causes of action; Toso has appealed from the judgment against the plaintiffs and in favor of the city on the first and second causes of action.
While this appeal was pending, the plaintiffs other than Toso secured orders substituting themselves as parties appellant in place of Toso acting as their agent. The substituted parties then requested dismissal of the cross-appeal insofar as they were involved and we entered our order of dismissal in accordance with that request. As a result of those proceedings, we now have before us the city's appeal and a cross-appeal by Toso as an individual. We reverse the judgment adverse to the city on the third, fourth and fifth causes of action; we affirm the judgment in favor of the city on the first cause of action. We reverse the judgment in favor of the city of the second cause of action.
At the time of the events herein involved, Toso had an option to buy from his co-plaintiffs a tract of land in the City of Santa Barbara known as the Wilcox property. It was his desire and intent to develop that property as a resort hotel. The result of the events hereinafter described was that his request to rezone the property for that purpose was denied and in January of 1977, he allowed the option to expire unexercised.
In 1964, the City of Santa Barbara adopted a general plan showing the Wilcox property as a resort hotel with five dwelling units per acre. In 1965, the city zoning ordinance was amended to add a chapter providing for a resort hotel zone land zoned as RH also zoned as single and multiple family residential zone. The Santa Barbara zoning ordinance provides for zone changes by zoning amendments. The zoning ordinance provides for appeal to the city council and a public hearing following the denial of an application for a zone change.
Prior to Toso's application for rezoning, the city had permitted rezoning to RH zoning certain other property belonging to another person. This property which was granted rezoning already had a resort hotel on the premises. However, the city had also denied an RH rezoning application to W. Von Biskupsky, who wanted to build a resort hotel across the street from the Wilcox property. The city also denied the application to zone Loma Hacienda property for a resort hotel. The property surrounding the Wilcox property was zoned F-1 for single family residences at the time of plaintiff's rezoning application.
Toso knew that the city's general plan provided for a resort hotel on the Wilcox property when he secured the option to buy the property in 1973. In January of 1974, the city's environmental officer advised the City Park Director of an incipient movement to purchase the Wilcox property for a park. In February of 1974, Toso filed a rezoning application to change the zoning on the Wilcox property from E-1 and R-1 single family residences to RH resort hotel.
Citizens met with the Park and Recreation Director to discuss the purchase of the Wilcox property as a park, and sometime after that, the city had the Wilcox property appraised for value. After the City of Santa Barbara received a sum of money for settlement of an oil spill, the city placed the following proposition on the ballot: "Shall the City of Santa Barbara purchase the Wilcox property for open space use?" The planning commission had several meetings on the rezoning application, they found the resort hotel plot plan aesthetically satisfactory, but they denied Toso's application for resort hotel rezoning, finding that a commercial hotel in a single family area was an improper land use.
The voters in Santa Barbara approved the proposition favoring purchase of the Wilcox property, and the city attorney began negotiations with Toso's attorney for the purchase of the property.
Toso appealed the denial of the resort hotel rezoning application and, prior to the public hearing, the city council met in executive session with the city attorney to receive legal advice from him. A statement was prepared as a result of those sessions stating that the city council would divorce consideration of respondents' appeal on rezoning from the city's desire to purchase the Wilcox property. A public hearing was then held and respondent's rezoning application was once again denied.
The city attorney met with the city council and decided to inform Toso's attorney that the city was not interested in the property and that he was free to develop it as a residential subdivision. The city attorney advised Toso's attorney that the city did not intend to condemn the property.
Toso then filed his complaint in inverse condemnation, damages and writ of mandate. The city attorney met with the city council to prepare a draft of a resolution. Afterwards, the city council adopted Resolution 8111 stating nonintention to acquire the Wilcox property. The resolution also initiated proceedings to consider rezoning the property for a Planned Unit Development (PUD).
Trial in the action began. The planning commission approved rezoning of the Wilcox property to E-3 PUD and E-1 PUD, which allowed either single subdivision or a planned unit development residential project.
The discussion below deals first with the city's appeal from that portion of the judgment that is not in its favor, including the order of the court to the city council to rezone the Wilcox property to permit a resort hotel.
Appellant city's first argument is that the trial court erred in determining that the city council's denial of respondent's rezoning application was a quasi-judicial act reviewable under Code of Civil Procedure section 1094.5 rather than an act reviewable under Code of Civil Procedure section 1085. We agree. Toso, by his own language, sought to have the Wilcox property "rezoned" and he submitted a "rezoning" application for that purpose. Although granting a variance, a conditional use permit, or an exception to use is an administrative act, where rezoning is requested it is a legislative act. (Tandy v. City of Oakland (1962) 208 Cal.App.2d 609, 611, 25 Cal.Rptr. 429; Topanga Assn. For A Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 513, 113 Cal.Rptr. 836, 522 P.2d 12; Banville v. County of Los Angeles (1960) 180 Cal.App.2d 563, 570, 4 Cal.Rptr. 458.) Rezoning is accomplished by amendment of a zoning ordinance and by the same procedure as the The trial court below then exacerbated this error by applying Code of Civil Procedure section 1094.5 rather than Code of Civil Procedure section 1085 as a method of review. Review under Code of Civil Procedure section 1094.5 is not available where an agency is acting in a legislative capacity. (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 35, 112 Cal.Rptr. 805, 520 P.2d 29.) Zoning is a legislative act reviewable under ordinary mandamus under Code of Civil Procedure section 1085. 1 (Ensign Bickford Realty Corp. v. City Council (1977) 68 Cal.App.3d 467, 137 Cal.Rptr. 304.)
original enactment, and therefore the city council's act in amending a zoning ordinance to exclude previously included property is a legislative and not administrative act. (Johnston v. City of Claremont (1958) 49 Cal.2d 826, 834, 323 P.2d 71.) Therefore, the court below erred in its conclusion that the denial of Toso's rezoning application was a quasi-judicial act rather than a legislative act.
Appellant city's second contention is that the trial court erred when it substituted its judgment for that of the city council by ordering the city council to apply resort hotel zoning to the Wilcox property, and by finding that the Planned Unit Development zoning for the Wilcox property was null and void. Again, we agree with appellant city. In this state courts generally refuse to overturn the legislative bodies' refusal to rezone. (Tandy v. City of Oakland, supra, 208 Cal.App.2d 609, 25 Cal.Rptr. 429; Lockard v. City of Los Angeles (1949) 33 Cal.2d 453, 461, 202 P.2d 38; Sladovich v. Fresno (1958) 158 Cal.App.2d 230, 322 P.2d 565.) Denial of rezoning will be held valid unless there is no reasonable relation to the public welfare; and before the courts will interfere with a zoning ordinance, the plan must be arbitrary. 2 (Lockard v. City of Los Angeles, supra, 33 Cal.2d 453, 461, 202 P.2d 38.) The sole issue on review of a zoning ordinance is whether or not there is any reasonable basis to support the...
To continue reading
Request your trial