Tustin Heights Ass'n v. Board of Sup'rs of Orange County
| Citation | 339 P.2d 914,170 Cal.App.2d 619 |
| Court | California Court of Appeals |
| Decision Date | 25 May 1959 |
| Parties | TUSTIN HEIGHTS ASSOCIATION, T. Cecil Ostrander, and F. N. Clark, Petitioners and Appellants, v. BOARD OF SUPERVISORS OF COUNTY OF ORANGE et al., Respondents. Civ. 5917. |
Rutan, Lindsay, Dahl, Smedegaard, Howell & Tucker, Milford W. Dahl, and H. Roger Howell, Santa Ana, for appellants.
Joel E. Ogle, County Counsel (Orange County), and Adrian Kuyper, Asst. County Counsel, Santa Ana, for respondents Board of Supervisors of Orange County and C. W. Donohue, Superintendent of Building and Safety for Orange County.
Blodget, Gilbert & Cochran and Arthur M. Bradley, Santa Ana, for respondent Roman Catholic Archbishop of Los Angeles.
The respondent board of supervisors enacted a land use plan for Orange County entitled 'The Districting Ordinance.' The respondent, The Roman Catholic Archbishop of Los Angeles, petitioned the Orange County Planning Commission for a conditional use permit for the establishment of a church and an elementary parochial school in the 100-E4 Small Estates District, After hearings, the planning commission recommended denial of the application on the grounds that (1) 'The site is not large enough to take care of students under customary state standards and also provide adequate parking space'; (2) that 'Material detriment or injury to the neighborhood will result from issuance of this permit.'
After disapproval by the planning commission, the matter was submitted to the board of supervisors. On May 22, 1957, the board of supervisors held a hearing at which evidence was submitted and the hearing was closed with a motion to reach a decision on the application on Wednesday, May 29, 1957. On May 29, 1957, the board of supervisors met without reopening the hearing, although the applicant proposed to amend the application by changing the location and number of the access roads, the size, type, number and location of the buildings, the size and location of the parking area, the size and location of the playground area, and by the addition of a second parcel of real property. No formal amended application was filed either with the planning commission or the board of supervisors. The matter was continued to June 5, 1957, on which date the board of supervisors, without reopening the hearing, allowed the respondent applicant to file an amended plot plan and verbally amend the original application to conform to the amended plot plan. Neither the amended plot plan nor the amended application was referred to the planning commission. The board of supervisors authorized the issuance of the conditional permit on the basis of the proposed amended application and the amended plot plan.
The petitioners, T. Cecil Ostrander and F. N. Clark, are residents and property owners residing in the county of Orange and in the immediate vicinity of the property to which the conditional permit in controversy applies. Both of said petitioners, T. Cecil Ostrander and F. N. Clark, are members of the board of directors of petitioner, Tustin Heights Association, which is an unincorporated association. Its members are residents and property owners in the area in which the property in question is located, which is within the 100-E4 Small Estates District. Petitioners filed their petition as a representative suit on behalf of the members of the association and individually as property owners within the zoned area. They sought a writ of mandate requiring the board of supervisors, collectively and individually, to vacate and set aside the order of the board of supervisors granting the conditional permit. The petition further requested that a writ of mandate issue against C. W. Donohue, Orange County Building Superintendent of Building and Safety, to refrain from in any manner issuing a construction permit for the construction of the church and school requested by the conditional use application, and if a permit had been issued that it be revoked and rendered null and void.
This is an appeal by the petitioners Cecil Ostrander and F. N. Clark, individually and on behalf of the members of Tustin Heights Association, from the judgment after the demurrer of the respondents to the second amended petition had been sustained without leave to amend.
This action is concerned with four sections of the zoning ordinance pertaining to the area in which the respondent, The Roman Catholic Bishop of Los Angeles, proposed to establish a church and an elementary parochial school. Section 9.2 E4 entitled 'Small Estates' District Regulations, provides, insofar as pertinent, as follows:
'A Uses Permitted: * * *.
'7. The following additional uses, subject to the issuance of Conditional Permits therefor, as prescribed in Section 19: * * *.
Thus conditional permits for the use of churches and schools may be issued pursuant to the ordinance, but only under the conditions provided by section 19. The applicable subsections of section 19 provide:
'Section 19. Conditional Permits and Variance Permits.
'A. Conditional Permits:
'The Board of Supervisors, after receipt of the report and the recommendation of the Planning Commission as hereinafter in this section provided, shall have the power to authorize the issuance of conditional permits by the Building Inspector for specified types of uses and buildings in the foregoing Districts, as provided in the use regulations of such districts, under conditions which will preserve the integrity and character of the district, the utility and value of adjacent property and the general welfare of the neighborhood. Minimum conditions therefor are specifically as follows, * * *.
'7. Churches, museums and libraries, upon condition that the location and building and plot plans be approved by the Planning Commission.
'8. Schools, colleges, public playgrounds and athletic fields upon the following conditions:
One of the minimum conditions of 19-A, subdivisions 7 and 8, is the approval of the planning commission as to those particular uses. Respondents contend that section 19-A is not controlling and that section 19-B, relating to variances, also applies to the conditional uses covered by section 19-A. The trial court agreed with this contention and held that subdivision 19-A should not be interpreted independently but must be construed with section 19-B in determining whether the board of supervisors has the authority to grant a conditional permit without the approval of the planning commission and contrary to subdivisions 7 and 8 of section 19-A.
Section 19-B, which the trial court held to be controlling, reads as follows:
'The Board of Supervisors, after receipt of the report and recommendation of the Planning Commission as hereinafter in this section provided, shall have the power to grant variances to the height, yard, area and use regulations of this ordinance and authorize the issuance of Variance Permits therefor by the Building Inspector, in cases where practical difficulty, unnecessary hardships or results inconsistent with the general purpose and intent of this ordinance occur through strict application of such regulations and under such conditions as said Board may deem necessary to assure that the General purpose and intent of this ordinance will be observed, public safety and welfare secured, and substantial justice done.'
Subsection B of section 19 clearly vests in the board of supervisors the authority to grant a variance when the conditions enumerated by that section are shown to exist. There is nothing in section 19-B requiring a favorable recommendation by the planning commission as a prerequisite to the granting a variance.
Respondents contend that section 19-A, Conditional Use Permits, and section 19-B, Variance Permits, must be read together. Inasmuch as section 19-B, relating to variances, authorizes the board of supervisors to grant a variance permit even thought the planning commission makes an adverse recommendation, respondents argue that such power coheres to conditional use permits covered by section 19-A. Aside from disregarding the plain wording of the ordinance which treats conditional uses and variances separately, this argument ignores the basic distinctions between conditional use permits and variance permits. Classically, a master zoning ordinance establishes the basic uses permitted within the particular zoned area. Usually such permitted uses are not exclusive and the zoning act also enumerates certain other uses known as exceptions which do not comply with the ordinance but which may nonetheless be permitted upon application and hearing. Although various jurisdictions use different terminology when referring to such exceptions, they fall within three categories and the attributes of each type are essentially the same in all jurisdictions. The first is the 'nonconforming use'. It is a use of property that was in effect prior to the enactment of the zoning ordinance. Although prohibited, it may be permitted if shown that it is not a menace to the health, welfare and safety of the public. Livingston Rock & Gravel Co. v. County of Los Angeles, 43 Cal.2d 121, 127, 272 P.2d 4; Hopkins v. MacCulloch, 35 Cal.App.2d 442, 445, 95 P.2d 950; 2 Metzenbaum, Law of Zoning, 2d Ed., Chap. IX-m, p. 957; 1 Yokley, Zoning Law and Practice, 2d Ed., sec. 147, p. 362; 8 McQuillan Municipal Corporations, 3d Rev.Ed., Chap. 25.160. The second type of exception is the 'conditional use', which is sometimes referred to by...
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