MEAD v. CROOK

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Court of Appeal, Fourth District, Division 1, California.

Terry MEAD, Plaintiff and Appellant, v. CITY COUNCIL, CITY OF REDLANDS, Defendant and Respondent; William CROOK, Real Party in Interest.

D000945.

Decided: August 16, 1984

Terry Mead, in pro. per., for plaintiff and appellant. Gregory V. Moser and Best, Best & Krieger, Riverside, for defendant and respondent. No appearance for real party in interest.

Petitioner Terry Mead sought a writ of administrative mandamus (Code Civ.Proc., § 1094.5), challenging the grant by the City Council (Council), City of Redlands (City), of a conditional use permit to his neighbors (the Crook family) which allows the Holt House, a historic and architecturally significant mansion located on Olive Street in Redlands to be open to civic and community groups on a limited basis and to be used as the site for limited fund-raising events for the maintenance, restoration and preservation of the estate.   The conditional use permit (CUP) was granted for a six-month period by the Council.   Six months thereafter, and independent of this present action, the CUP was extended for a full year.

Mead appeals the denial of his writ of mandamus, seeking to order the City to set aside the permit.   He sets forth a variety of contentions of error:  (1) The application for the CUP did not qualify under the terms of the City's zoning ordinances and therefore could not be lawfully granted;  and (2) the Council did not proceed in the manner required by law, therefore denied fundamental requirements of due process owed Mead.   In contrast, the City contends substantial evidence supports the findings made by the Council in granting the permit, that its procedure was proper under state law, and finally in any event the issues are now moot in view of the renewal (for one year) of the permit six months after its original issuance.

At oral hearing the City raised a second factual base for declaring this appeal moot.   Effective March 7, 1984, the Council revoked the one-year CUP granted on February 1, 1983, because of the failure of the owners of Holt House to comply with one of the conditions of approval of the CUP, to wit:  No fire hydrant had been installed as required by Fire Department Condition No. 3. (Res. No. 3959, City Council of Redlands.)

FACTS

Mead is the owner of real property at 324 West Olive Avenue, Redlands.   The Holt House is across the street within approximately 300 feet.   The area is zoned R–3.   The house was owned by William Crook, together with his wife and son.   The Crooks formed the Redlands Restoration and Historical Association (Association), a mutual benefit corporation, and thereafter applied for a conditional use permit under section 52.00(A)(2)(p) of Redland's zoning ordinance.   The Association sought to use the Holt House for meetings of the Association and other civic groups and for public use for scheduled events, including some designed to raise money, “to preserve estate, and permit community use of same as a meeting place.”

The Holt House is an 80-year-old residence, the home of two important figures in the history of Redlands.   The staff of the Redlands Planning Commission (Commission) described the Holt House as the finest remaining residential example of Mission Revival architecture in California.   The Association's CUP application represented the Holt House would “operate for charitable or educational purposes,” “be used for school children,” “meetings for charitable and civic groups and the community,” and “meetings for the Association's quarterly board meetings.”   In addition “[i]n order to preserve and further restore the mansion, ․ the Association would use the facilities for weddings and receptions.”

On July 13, 1982, the Commission conducted public hearing on the Crooks' request for a CUP.   On July 7, one week before the public meeting, Mead sent a letter to City Planning Director, Wilmar Schindler, requesting a record of the public hearing be made and preserved, citing Government Code section 65804.1

At the duly noticed public hearing the staff report was made.   The lack of on-site parking facilities was discussed.   The neighborhood opposition was reported as a major problem.   Nevertheless the staff recommended approval.   Residents, owners of property near Holt House, spoke in opposition;  they addressed issues such as parking, traffic, noise, reduced property values and change in the character of the neighborhood from residential to commercial.   The opposition also asserted the Association was not a community group or civic organization;  that weddings and receptions were not authorized meetings.   It was pointed out only members of the Crooks family formed the Association and the revenue generated would be used to pay for maintenance and improvements.   A tape recording of the public hearing was made by the planning department.

The Commission voted 4 to 1 to deny the request.   On July 15, 1983, the planning director sent the Association (the Crooks) a notice its application would be considered by the Council at 3 p.m. on July 20.   However, no notice was mailed nor was any other equivalent notice given to Mead or to the other owners of property within 300 feet of the Holt House.   At the Council meeting on July 20, the Crooks were present but none of the persons who opposed the application at the Commission meeting were there.   The Council had before it the report, seven single-spaced typed pages summarizing the discussion, of the Commission's meeting.   It had been verified by reference to the tapes made at the meeting.   The tape was not available because it had been “routinely erased through reuse.”

The Commission's report recommended denial of the CUP, but the Commission members agreed “that the application is in conformance with the first requirements of section 52.00(C)(1),” that is to say, the use proposed was proper.   The Commission, however, felt the use might be disruptive of the neighborhood.   After consideration of these matters, the Council voted 3 to 2 to reject the report and findings of the Commission on CUP No. 373 and:

“to find that all five findings in Section 52.00 of Ordinance No. 1000 can be made and are made in behalf of Condutional Use Permit No. 373;  to find that this is a permitted use under Section 52.00(A)(2)(p) of Zoning Ordinance No. 1000;  and to approve the conditional use permit for such use at such location;  and to add the condition to such approval that the conditional use permit be reviewed at the first meeting in February, 1983, by the City Council at a public hearing for any violation of any condition or unanticipated adverse impact on the neighborhood from the use and operation.”

The CUP granted was expressly made subject to 28 additional conditions recommended by the city departments and the Commission.   The Council explained to Mead later (that same day) the CUP was granted only for a six-month period (expiring Feb. 1983) rather than the usual one-year period as authorized by section 52.00(G).

Six months later, February 1, 1983, a further—and a duly noticed—public hearing was held by the Council to review the CUP “for any violations of any condition or unanticipated adverse impact upon the neighborhood.”   The objectors were in attendance and made their views known.   At the end of the hearing the Council extended the CUP for the Holt House use for a full one-year period under the same conditions.

In light of and after consideration of the foregoing factual matters, Mead's petition for writ of mandamus seeking to cancel the permit was denied by the superior court.   Mead appeals.

DISCUSSION

I

A preliminary issue must be determined before considering Mead's substantive contentions.   The Council contends Mead's appeal is moot.   Pending these proceedings the challenged CUP was reviewed for violations of conditions and for any unanticipated impacts on the neighborhood.   In this duly noticed subsequent (six months later) hearing the Council considered conditions and circumstances surrounding the original granting.   It heard further evidence from the objectors.   At this hearing the conditional use permit was extended for an additional year's period.   Thus Mead seeks to void a CUP which is no longer in existence.   It may be conceded the precise issue, the validity of the original—but now expired—six-month CUP, is moot.   Moreover, this appeal is twice mooted by the Council's order taken one week before oral argument in this matter in revoking the CUP for noncompliance with one of the conditions of issuance.

Despite the disposition of the issue of the particular CUP in issue favorable to Mead, the first one is expired—the renewal CUP is now revoked—yet he seeks resolution of the important constitutional and procedural issues surrounding the issuance of the original conditional use permit here transcends the importance of the particular CUP which gave rise to the dispute.

 He asserts this opinion should consider the contentions made because of the significance and the novelty of the issues presented and the need for procedural guidance in an area of ever present municipal activity.   We concur.  “If a pending case poses an issue of broad public interest that is likely to recur, the court may exercise an inherent discretion to resolve that issue even though an event occurring during its pendency would normally render the matter moot.”  (In re William M., 3 Cal.3d 16, 23, 89 Cal.Rptr. 33, 473 P.2d 737.)   Such resolution is particularly appropriate when it is likely to effect the future rights of the parties now before the court.   (Daly v. Superior Court, 19 Cal.3d 132, 141, 137 Cal.Rptr. 14, 560 P.2d 1193.)   This is a condition which is capable of repetition, for the Holt House controversy is still embedded in the Olive Street neighborhood.   We therefore proceed to the resolution of those issues.

II

 The conditional use permit here in issue is a separate and distinct mechanism from a zone variance or an ordinance amendment.   It is granted for a public or quasi-public purpose within the terms of the zoning plan or ordinance.   The grant of a conditional use permit does not create a new zone, or constitute an alteration or amendment of the zoning regulations;  it merely affirms as a fact the existence of the circumstances under which the ordinance by its terms prescribes that such permit shall issue.   In other words, the granting of an application for a conditional use does not constitute a deviation from the zoning ordinance but is in compliance with it.  (Essick v. City of Los Angeles, 34 Cal.2d 614, 213 P.2d 492.)   It allows a use permitted rather than proscribed by the zoning regulations.   Because of the possibility the sought after use could be incompatible to some degree with the applicable zoning, the special permit is required.  (County of Imperial v. McDougal, 19 Cal.3d 505, 510, 138 Cal.Rptr. 472, 564 P.2d 14.)   The granting of a conditional use permit is generally held to be an administrative quasi-judicial act—not a legislative one.  (Essick v. City of Los Angeles, supra, 34 Cal.2d at p. 623, 213 P.2d 492;  Hawkins v. County of Marin, 54 Cal.App.3d 586, 595, 126 Cal.Rptr. 754;  Essick v. City of Los Angeles, supra, 34 Cal.2d at p. 624, 213 P.2d 492;  3 Anderson, American Law of Zoning (2d ed.) § 19.01, p. 359.)

Even though the permit may authorize a change in the property's use, such use is already sanctioned by the provisions of the existing ordinance.   The variance is conditioned upon approval by the proper administrative authorities.  (Anderson, American Law of Zoning, supra.)   As a result, the public is not affected to as great a degree by the issuance of these permits as would be the case of changes in zoning;  the public is already on notice these special uses are permissible by administrative decree.

III

The standard of judicial review where a conditional use permit has been granted or denied by the responsible public agency is found in Public Resources Code section 21168, which states:

“Any action or proceeding to attack, review, set aside, void or annul a determination, finding, or decision of a public agency, made as a result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken and discretion in the determination of facts is vested in a public agency, on the grounds of noncompliance with the provisions of this division shall be in accordance with the provisions of Section 1094.5 of the Code of Civil Procedure.

“In any such action, the court shall not exercise its independent judgment on the evidence but shall only determine whether the act or decision is supported by substantial evidence in the light of the whole record.”  (Ibid.)

(See Markley v. City Council, 131 Cal.App.3d 656, 665, 182 Cal.Rptr. 659.)

 No constitutional nerves are impinged by this statutory standard of judicial review.   The surrounding property owners have no fundamental vested right in the Crooks' either receiving or being denied a conditional use permit.  (Jones v. City Council, 17 Cal.App.3d 724, 728–729, 94 Cal.Rptr. 897;  Stoddard v. Edelman, 4 Cal.App.3d 544, 550–551, 84 Cal.Rptr. 443;  but see also Friends of Lake Arrowhead v. Board of Supervisors, 38 Cal.App.3d 497, 518, fn. 18, 113 Cal.Rptr. 539.)

 Thus the issue before the trial court was whether the administrative decision was supported by substantial evidence in light of the whole record.   The inquiry, at the appellate level, is limited as in the trial court to ascertain whether there was any substantial evidence, contradicted or uncontradicted which supports the findings.  (Siller v. Board of Supervisors, 58 Cal.2d 479, 481–482, 25 Cal.Rptr. 73, 375 P.2d 41.)   Mead here bears the burden of establishing lack of evidentiary basis on which the actions of the Council were posited.  (Markley v. City Council, supra, 131 Cal.App.3d at p. 673, 182 Cal.Rptr. 659.)   Failure to do so will be tantamount to a concession that the evidence supports the findings.  (Jacobson v. County of Los Angeles, 69 Cal.App.3d 374, 388, 137 Cal.Rptr. 909.)

IV

Mead contends the Council in granting the Crook family's application violated its own zoning ordinance.   Section 52.00(A)(2) of the Redlands city ordinance lists the uses for which a conditional use permit may be issued.   The ordinance declares the uses may be permitted pursuant to the provisions of this section, in any zone except where expressly prohibited, when such uses are determined by both the Commission and the Council to be essential or desirable for the public welfare and convenience and in conformity with general plans and its objective.   Section 52.00(A)(2) contains a list of uses for which a CUP may be issued.   Subdivision (p) provides:  “Meeting places of nonprofit civic groups or community organizations, other than social or fraternal clubs.” 2

Mead argues the record shows the Association is not a civic group or community organization within the plain meaning of the ordinance and asserts such uses as weddings and receptions and tour groups conducted on a regular basis for a fee do not constitute “related” functions according to established zoning principles.

Words in an ordinance or statute are to be interpreted according to their plain and ordinary meaning.  (C.Y. Development Co. v. City of Redlands, 137 Cal.App.3d 926, 929, 187 Cal.Rptr. 370.)   In search of ordinary meaning Mead resorts to Internal Revenue Code cases which define civic and community organizations for tax purposes.  (26 U.S.C.A., § 501.)   These authorities are not persuasive.   They address a totally different question, to wit, taxability of an organization, not the breadth or scope of laws governing zoning or conditional use permits.   He also cites District Director of Int. Rev. v. Long Beach Junior ch. of c. (9th Cir.1964) 327 F.2d 857, to the effect there are two factors which appear to be determinative (again for tax purposes) in determining whether a group is a civic or community organization:  (1) a broad base of community membership;  and (2) benefits flowing to the community at large rather than the members as such.   Also inappositely relied upon is the Connecticut case of Gilbert v. Town of Hamden, 135 Conn. 630, 68 A.2d 157, 160, for the rule that permitting other organizations to use a private group's facilities was insufficient to convert a private club into a community organization.

The Holt House Association was organized under California law as a mutual benefit corporation.   It is a charitable organization under California law.   To gain such status it must be formed for the benefit of the community, not for private gain or benefit.   It may or may not be entitled to a tax exemption under California or federal law.  (See 3 Marsh's, California Corp. Law (2d ed. 1983 Supp.) § 22.2, pp. 63–65.)   Such tax contingency does not impinge upon or control the issue addressed here.

State law (Gov.Code, §§ 37361, 50280) expressly authorizes the City to provide for places of historic and esthetic value and the creation of historic zones through special conditions and regulations for their preservation.   In Bohannan v. City of San Diego, 30 Cal.App.3d 416, 422, 106 Cal.Rptr. 333, historic “Old Town,” San Diego was the site involved.   The San Diego ordinance regulated the architectural design and buildings and signs within the 230-acre plot.   The trial court found “the ‘purpose of the ordinance as shown by the evidence falls within the meaning of “general welfare” of the public.’ ”   (Ibid.;  italics added.)   This court held preservation of the image of Old Town, as it existed before 1871, as reflected in historical buildings in the area, as a visual story of the beginning of San Diego and as an educational exhibit of the birthplace of California, contributed to the general welfare.   Such an historic area gave the general public educational and cultural advantages.   By its encouragement of tourism it was of general economic value to the entire community.

 Similarly the Redlands City Council was lawfully authorized by its zoning ordinances to determine Holt House with its historic background and condition was a proper subject for being set aside as a historical monument through the activities of the Association.   This court in Bohannan made it clear these activities are lawfully within the parameter of “public welfare and convenience.”

Finally, there was a charitable purpose involved.   There appears to be no financial gain to any individual members of the Association.   It is stipulated by the application for CUP all income revenues are to be used for the preservation and improvement of the Holt House.   Revenue raising activities to maintain and preserve the historic house, not for a commercial purpose of providing an adequate return on a commercial investment, falls squarely within the charitable purpose clause.   The house is and will remain, under the CUP conditions, a residence maintained by a nonprofit association for meetings of civic and community organizations as well as for public use, enjoyment and benefit.

V

Mead concedes “accessory” uses are permitted and authorized in an R–3 zone.   He claims some uses permitted under the CUP cannot be considered “accessory” uses.3  He denies the revenue raising activities as authorized by the City will assist or promote the main use to provide civic and community groups with access to a historical and esthetic landmark.   Mead takes too narrow a view of what is an accessory use.   Mead would have this historic monument and Association caretaker operate in an economic desert or vacuum.

 Mead ignores the ever present problem of maintenance and care for such a house.   One cannot turn one's back on the need for care and maintenance of the highly ornate and aging architectural gem if it is to be available for its principal use.   These auxiliary uses aid in exposing to the public this historic landmark.   Certainly it is an incidental use, as well as being absolutely essential for its continued principal use.   Without financial lifeblood flowing from certain of these auxiliary activities, the house itself could soon fall into disuse, the principal objective lost.   Even Mead concedes the zoning ordinances are not straightjackets.   If such a narrow view of “accessory uses” was accepted the project could be hamstrung.   Substantial evidence supports the City's implied finding the specified accessory uses set forth in the application are reasonably necessary to fulfill of the primary uses authorized by the zoning law.

VI

Mead next contends the Council violated Government Code sections 65901 and 65905 procedural requirements, thus making its granting of the CUP invalid.4

Mead recites these facts:  (1) the Commission did not decide the application but merely made a recommendation and the matter was automatically forwarded (not appealed) to the Council, (2) he and the other objectors were given no notice of the Council hearings although the real party in interest, the Crooks, were notified, (3) in this circumstance—the objectors unnotified, not present—the Council rejected the Commission's recommendation and granted the CUP;  and (4) Mead also points out the Commission did not “adjudicate” or “determine” the application nor did the Council act as an appeals board.   Mead also complains of the lack of administrative appeal.5

 The provisions establishing the notice requirements are “mandatory” in the sense the Council was under an obligatory duty to comply with them.   (Plaggmier v. City of San Jose, 101 Cal.App.3d 842, 852, 161 Cal.Rptr. 886.)   But the failure to follow the “mandatory” procedure does not necessarily result in a void action.   A “mandatory” or “directory” legislative intent must be gathered from the statute construed as a whole, the nature of the act to be done and the consequences following the doing or failing to do the act required.  (Pulcifer v. County of Alameda, 29 Cal.2d 258, 262, 175 P.2d 1.)

In support of his contention Mead points out as a general law city, the City is bound by the provisions of the Government Code.  (Cal. Const., art. XI, § 7.)   He contends the right to a hearing in front of the decision maker is guaranteed by the statute since Government Code section 65903 provides:  “A board of appeals, ․ shall hear and determine appeals” and this “hear and determine” language imparts a right to notice and a hearing.   Section 65903, together with section 65904,6 has delegated to the local legislative body (here the Council) the authority to establish procedures for appeal.

While we do not here have an appeal process, the legislative intent is clear.

“We perceive a dual expression or legislative intent to involve members of the community in every level of the planning process.   The first is to directly involve the owners of the property situate within a radius of 300 feet of the property for which the conditional use permit application has been filed.   Through that involvement, those owners are granted the right to participate in the hearing itself and that involvement inherently carries the right of appeal and such right of appeal may not be restricted by local ordinance.   The second is to involve the general public ‘at every level’ of the planning process.  (Gov.Code, § 65033, supra.)”  (Concerned Citizens of Murhpys v. Jackson, 72 Cal.App.3d 1021, 1026, 140 Cal.Rptr. 531;  italics added.)

This statutory right to notice before the decision-making body is made explicit in Government Code section 65905 which requires wherever “an application for a ․ [CUP] ․ or an appeal from the action taken thereon, is submitted to the body or person charged with conducting a public hearing thereon, notice of hearing shall be given by notice through the United States mails ․”  (Italics added.).   The details of such notice is specified in section 65901.

Pursuant to Government Code sections 65100, subdivision (a), and 65101, subdivision (d), the planning commission performs only such functions as the legislative body (Redlands City Council) may direct.   Section 65861 provides where there is no planning commission with authority to act, the city council is required to take all actions which are authorized by law including the granting or denying of the conditional use permit.

 In this statutory setting the City argues it is not required to give notice of a second public hearing to those dissatisfied with the recommendations of the Commission.   These code sections create a duty to give notice.   First, the Council, not the Commission, is the decision-making body.   The Council has the duty and authority upon receipt of the report and recommendation from the Commission to modify, reject or accept the findings.   The failure to give notice and the opportunity to appear before the decision-making body is in direct violation of the specific directives found in section 65901 which declares:  “Prior to the decision on an application for variance ․ the legislative body of the city or county shall give notice of the proposed variance by mail or delivery to all persons, including businesses ․ within 300 feet ․”  There is no showing such notice or any equivalent notice was given in this case.

The case cited by the City, Meyers v. Board of Supervisors, 110 Cal.App.2d 623, 243 P.2d 38, is not in point, for it factually involved a zoning board which had the obligation and duty of holding a hearing, to adjudicate, make a determination on a variance with an appeal right to the city council.   Thus the zoning board was the “legislative body.”  (Contrast also Hopkins v. MacCulloch, 35 Cal.App.2d 442, 451, 95 P.2d 950;  Kissinger v. City of Los Angeles, 161 Cal.App.2d 454, 464, 327 P.2d 10.)

In contrast to Meyers, supra, there is in the City of Redlands legislative scheme no body to whom the duty to make such decision has been delegated.  (§ 65902.)   It is the Council which is mandated by section 65861 to hold a hearing and make the determination.

A notice was given for the earlier hearing before the Commission.   However, the Commission was not the “body or person charged with conducting a public hearing thereon” (§ 65905) which had the duty to make the decision.   Mead and allies were before the Commission at the noticed hearing and received a favorable vote.   Before the Council, where they had no notice, no opportunity to be present or to be heard, they lost.   The objectors were precluded from presenting their arguments to the precise body that had, by ordinance, the duty to make the decision on this matter.

 A fair reading of these statutes compels the conclusion the Council failed in its duty to give the statutory notice to the affected parties before it held its hearing to determine whether to grant or deny the CUP.

VII

 What process was due Mead?   Due process does not have a fixed content unrelated to time, place and circumstances.  (Cafeteria & Rest. Wkrs. U. Local 473 v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230.)   Instead, it is a flexible concept requiring such procedural protections as the particular situation demands.  (Greenholtz v. Inmates of Nebraska Penal & Cor., 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668;  Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484.)   As the United States Supreme Court emphasized:

“The function of legal process, as that concept is embodied in the Constitution, and in the realm of factfinding, is to minimize the risk of erroneous decisions.   Because of the broad spectrum of concerns to which the term must apply, flexibility is necessary to gear the process to the particular need;  the quantum and quality of the process due in a particular situation depend upon the need to serve the purpose of minimizing the risk of error.”   (Greenholtz, supra, 442 U.S. at p. 13 [99 S.Ct. at 2106] citing Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18.)

Due process requires at minimum there must be notice affording some kind of hearing.  “The principle can probably be applied to millions or billions of informal determinations annually ․”  (2 Davis, Admin. Law Treatise (2d ed. 1979) ch. 13, § 13:2, p. 475.)   Notice and opportunity to be heard are the sine qua non, “the fundamental requisite” of any proceeding where due process, a fair hearing is required.  (Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 656, 94 L.Ed. 865;  Sniadach v. Family Finance Corp. of Bay View, 395 U.S. 337, 342, 89 S.Ct. 1820, 1823, 23 L.Ed.2d 349.)

 The due process—fair hearing—right has “little reality or worth unless one is informed that the matter is pending and can choose for himself whether to ․ contest.”  (Mullane v. Central Hanover Bank & Trust Co., supra, 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865.)   The statutory provisions for public hearing implies notice and opportunity to appear before the administrative body or board in support or in opposition to the matter in issue.   A lack of these elements constitutes a want of procedural due process.  (Flaherty v. Board of Retirement, 198 Cal.App.2d 397, 407, 18 Cal.Rptr. 256.)

 The granting of a variance is an administrative or quasi-judicial matter and as such requires, at a minimum, due notice and fair hearing.   (Horn v. County of Ventura, 24 Cal.3d 605, 612–613, 156 Cal.Rptr. 718, 596 P.2d 1134;  Kennedy v. City of Hayward, 105 Cal.App.3d 953, 960–961, 165 Cal.Rptr. 132.)

While the municipal ordinances of the City may require no notice, the state statutes, binding upon the Council and due process considerations, do require it.   The failure to comply with these statutes or to give some reasonable equivalent notice and opportunity to be heard constituted denial of due process, a fair hearing and rendered this, an adjudicatory decision, void.   (Fascination, Inc. v. Hoover, 39 Cal.2d 260, 271, 246 P.2d 656;  Southern Ry. Co. v. Commonwealth of Virginia, 290 U.S. 190, 54 S.Ct. 148, 78 L.Ed. 260;  United States v. Libby, McNeil & Libby (D.C.Alaska 1952) 107 F.Supp. 697, 703.)

 Mead concedes the “hearing” may be limited to argument rather than production of evidence (citing Bess v. Park, 144 Cal.App.2d 798, 803, 301 P.2d 978).   Mead's concession conforms with California and federal decisional law.   In zone variance hearings, informal proceedings, whether before a board or city council, have been approved.  (Flagstad v. City of San Mateo, 156 Cal.App.2d 138, 141, 318 P.2d 825;  Jackson v. City of San Mateo, 148 Cal.App.2d 667, 669–670, 307 P.2d 451.)   The California Supreme Court in Wolfskill v. City Council of Los Angeles concluded informality in zone proceedings would serve the public interest.  (178 Cal. 610, 614, 174 P. 45.)

In the landmark administrative law case, Chief Justice Hughes made the oft-quoted statement, “The one who decides must hear.”  (Morgan v. United States, 298 U.S. 468, 481, 56 S.Ct. 906, 911, 80 L.Ed. 1288.)   To “hear,” there must be a hearing.   A “hearing” in its very essence demands that the party who is entitled to it shall have the right to support his allegations by argument, however brief and by proof, however informal.  (Londoner v. Denver, 210 U.S. 373, 28 S.Ct. 708, 52 L.Ed. 1103.)   When and under what circumstances procedural due process requires oral argument or production of evidence is not a matter for broadside generalization.   For example, due process has been construed to mean an examination of the record made in a previous hearing before others.  (Cooper v. State Bd. of Medical Examiners, 35 Cal.2d 242, 245–246, 217 P.2d 630.)   Due process is to be determined on a case-by-case basis taking into account the nature of the contested right, the circumstances involved and procedures prescribed by statute or ordinance.   Any other approach to this multifaceted problem would be grossly abstract.

“The Constitution does not require oral argument in all cases.”  (Federal Communications Com'n. v. WJR, the Goodwill Sta., 337 U.S. 265, 276, 277, 69 S.Ct. 1097, 1103, 1104, 93 L.Ed. 1353.)   Yet, “[c]ertainly sound common sense and wise public policy would require an opportunity for property owners to be heard before ordinances which substantially affect their property rights are adopted ․”  (Kissinger v. City of Los Angeles, supra, 161 Cal.App.2d 454, 464, 327 P.2d 10;  Scott v. City of Indian Wells, 6 Cal.3d 541, 548–549, 99 Cal.Rptr. 745, 492 P.2d 1137.)   This reasoning applies with equal force where variances, CUP's, form the council's agenda.  (Drum v. Fresno County, Dept. of Public Works, 144 Cal.App.3d 777, 782, 192 Cal.Rptr. 782;  and cases cited.)

VIII

 Mead alleges procedural error because a tape recording of the Commission hearing was not preserved.  (It was erased through reuse.)   There was a written record made, a seven-page single-spaced typed summary, of the verbatim transcript.   It is Mead's contention “record” means a verbatim account.   No statute or rule requires the City to retain tapes made of the hearing.   The California Attorney General has expressed the opinion tape recordings are made simply to aid the clerk in preparing minutes;  the tapes “are not records” within the meaning of Government Code sections 6200 and 6201 and need not be retained.  (64 Ops.Cal.Atty.Gen. 317.)

It is true the City clerk must keep a record of the proceedings of the Council.  (Gov.Code, § 40801.)   The secretary of the Commission is not under an equivalent obligation.   Even if there be such a duty, the keeping of tapes is not required under the concept of maintaining “records.”

 Finally, assuming there was such a duty, no prejudice has been shown by Mead for such failure to keep the tape itself.   He does not say the seven single-spaced typed pages omit anything of significance, nor does he charge any impropriety in the conduct of the public hearing.   The record preserved was adequate for the use of Mead for the Council and for the trial court.   It complies with the requirements of Government Code section 65801.

IX

 Finally, Mead seeks a grant of attorney fees under section 800 of the Government Code.   This section authorizes attorney fees where the action of the Council has been found to be arbitrary and capricious.  (Marlow v. Orange County Human Services Agency, 110 Cal.App.3d 290, 295, 167 Cal.Rptr. 776.)   Here we find nothing but a good faith attempt by the Council to interpret its zoning ordinances in accordance with the advice of its city attorney and planning staff.   There is no basis for finding under section 800 a lack of good faith or any arbitrary or capricious action warranting an award of attorney fees.

 Under section 1021.5 of the Code of Civil Procedure, however, attorney fees are authorized if the court finds:  (1) a significant benefit has been conferred on the general public or a large class by the appellant;  and (2) the necessity and financial burden of a private enforcement would make such an award appropriate.   The finding of a significant benefit conferred upon the general public or property owners of the City of Redlands is not difficult to perceive here.   Mead has demonstrated a procedural, a due process void in need of attention.   Mead and others were deprived of a procedural due process right by reason of the non-noticed hearing procedure followed by the Council.   Land use decisions may “substantially affect” the property rights of adjacent owners and may thus constitute a deprivation of property within the context of procedural due process.  (Horn v. County of Ventura, supra, 24 Cal.3d 605, 615, 156 Cal.Rptr. 718, 596 P.2d 1134.)   In correcting this delict, he has conferred a benefit on the public generally.   The cause should be remanded to the superior court for assessment and grant of a reasonable attorney fees.

Appeal dismissed because of mootness;  cause remanded for assessment of attorney fees only.

FOOTNOTES

1.   All statutory references are to the Government Code unless otherwise specified.Government Code section 65804 sets up standards of conduct for city and county zoning hearings.   Subdivision (b) provides:  “When a matter is contested and a request is made in writing prior to the date of the hearing, all local city and county planning agencies shall insure that a record of all such hearings shall be made and duly preserved, a copy of which shall be available at cost.   The city or county may require a deposit from the person making the request.”  (Italics added.)

2.   The city attorney (Holmes) advised the Council of the applicability of section 52.00(A)(2)(p):  “Council must satisfy themselves that under the Zoning Ordinance this entity [the Association] must either be a non-profit civic group or a community organization other than a social or fraternal club, and that if this organization is one of the two things, then it fits within the conditional use permit section and can meet and have related functions at the location of the conditional use permit.”

3.   The City's zoning ordinance defines an “accessory” use as one “incidental or subordinate to and devoted exclusively to the main use of the land or building thereon.”

4.   Section 65901 provides:“The board of zoning adjustment or zoning administrator shall hear and decide applications for conditional uses or other permits when the zoning ordinance provides therefor and establishes criteria for determining such matters, and applications for variances from the terms of the zoning ordinance.   Said board or said zoning administrator may also exercise such other powers as may be granted by local ordinance, and adopt all rules and procedures necessary or convenient for the conduct of its or his business.“In accordance with the requirements for variances specified in Section 65906, the legislative body of the city or county may, by ordinance, authorize the zoning administrator to decide applications for variance from the terms of the zoning ordinance without a public hearing on the application.   Such ordinance shall specify the kinds of variances which may be granted by the zoning administrator, and the extent of variation which the zoning administrator may allow.“Prior to the decision on an application for a variance as provided for in this section, the legislative body of the city or county shall give notice of the proposed variance by mail or delivery to all persons, including businesses, corporations, or other public or private entities, shown on the last equalized assessment roll as owning real property within 300 feet of the property which is the subject of the proposed variance.”  (Italics added.)Section 65905 provides:  “Whenever an application for a variance, or a conditional use permit or other permit, for revocation or modification of same or an appeal from the action taken thereon, is submitted to the body or person charged with conducting a public hearing thereon, notice of hearing shall be given by notice through the United States mails, with postage prepaid using addresses from the last equalized assessment roll, or alternatively, from such other records of the assessor or the tax collector as contain more recent addresses in the opinion of said body, or by both publication in a newspaper of general circulation in accordance with Section 65854 and posting said notice in conspicuous places close to the property affected.   Procedure for mailing or posting of said notices shall be governed by the provisions of the local ordinance.”

5.   The Government Code provisions relied upon by Mead do require some type of appeal from an administrative decision where the Council has delegated its authority to grant conditional use permits to another decision making body.   Here the Council has not created a board of zoning adjustment nor a zoning administrator with authority to grant or deny CUP's.   The Commission serves only as an advisory body on conditional use permits.  (See Minney v. City of Azusa, 164 Cal.App.2d 12, 38, 330 P.2d 255.)   It has no power to grant or deny the application., it merely recommends appropriate action by the Council.   Such power to hear and recommend may be validly delegated by the Council to the Commission.   (Johnston v. Board of Supervisors, 31 Cal.2d 66, 73, 187 P.2d 686.)   In Anderson v. Pittenger, 197 Cal.App.2d 188, 194–195, 17 Cal.Rptr. 54, the City of West Covina zone variance procedures were in issue.   The planning commission had the authority to grant or deny a conditional use permit, but this decision did not become effective, valid if an appeal was taken to the city council.

6.   Government Code section 65904 provides:  “If a board of appeals has not [as here] been created and established the local legislative body shall exercise all of the functions and duties of the board of appeals in the same manner and to the same effect as provided by Section 65903.”

STANIFORTH, Acting Presiding Justice.

WORK, J., concurs. WIENER, J., concurs in the result. Rehearing denied;  WEINER, J., dissenting.

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