JOHNSTON v. BOARD OF SUP RS OF MARIN COUNTY ALIOTO

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

JOHNSTON v. BOARD OF SUP'RS OF MARIN COUNTY et al. (ALIOTO, Intervener).

No. 13000.

Decided: May 28, 1946

A. E. Bagshaw, Dist. Atty., and Harold Jos. Haley, Deputy Dist. Atty., both of San Rafael, for appellants Board of Supervisors and individual Supervisors (other than R. A. Thompson) and Geo. S. Jones, County Clerk. Natalie J. Holly, of San Rafael, for appellant R. A. Thompson. George Olshausen, of San Francisco, for intervener and appellant. Paul S. Marrin, Howard C. Ellis, and Sterling Carr, all of San Francisco, for respondent.

This is an appeal from an order granting a temporary injunction. The action was brought by a taxpayer and resident of Marin County to restrain the supervisors of that county from taking any further proceedings toward the issuance of a use permit to construct and operate a fish cannery and reduction plant at Waldo Point, on the westerly shore of Richardson Bay, after the county planning commission in the lawful exercise of the discretionary authority conferred upon it by the zoning laws governing in that county had considered and denied the application for the use permit; also to restrain the supervisors from taking further proceedings toward the enactment of an ordinance purporting to regulate the establishment, maintenance and operation of reduction plants in the county and to repeal all existing ordinances and parts of ordinances in conflict therewith. The proceedings of the board of supervisors complained of were taken by a three-fifths majority of the members of the board, the other two members having opposed the same.

The parties named as defendants and served with summons were the board of supervisors, the five members thereof, the county clerk, and Benicia Food Products Company, in whose behalf the application for the permit was filed. Later Vito B. Alioto, part owner of the Benicia Food Products Company, and who signed the application for the permit, was made a party defendant and served with summons. The order granting the temporary injunction was made after a hearing had in response to an order to show cause, and the matter was submitted for determination on a record consisting of the verified complaint, a demurrer and answer filed jointly by Benicia Food Products Company, Alioto and Supervisor Thompson; a demurrer filed jointly by the other members of the board of supervisors and the county clerk; and two affidavits. The several grounds of the two demurrers were that the complaint failed to state facts constituting a cause of action, misjoinder of two causes of action, and that the complaint contained two causes of action without separately stating them. The joint answer filed by Benicia Food Products Company Supervisor Thompson and Alioto, consisted mainly of admissions and denials of certain allegations of the complaint. One of the affidavits was made by Alioto and was devoted chiefly to averments as to the amount of damages he claimed he would suffer if the temporary injunction were issued; and the other affidavit was made by Attorney Natalie J. Holly, representing Supervisor Thompson and appearing also in the trial court as associate attorney for Alioto. Her affidavit sets forth excerpts from the minutes of the board of supervisors showing that on a few prior occasions the board had issued permits after denial of applications therefor by the county planning commission. At the hearing of the application for the temporary injunction the plaintiff dismissed as to the defendants Alioto and Benicia Food Products Company; whereupon those defendants asked for and were granted leave to come in as interveners, and they rested their opposition to the granting of injunctive relief on the demurrer and answer and the affidavits theretofore filed by them. On June 14, 1945, the trial court made its order directing the issuance of the temporary injunction upon the giving of indemnifying bonds in the amounts fixed by the court. Such bonds were furnished, and on June 29, 1945, the injunction was issued; whereupon the defendants and the interveners gave notice of appeal, and they present the appeal on a clerk's transcript.

The statutory background of the case and the underlying facts appearing from the record show the following: During the year 1937, the Legislature revised the then existing State Planning Act by amending nearly all of the sections thereof, adding two new ones and repealing a few others; and all of the changes so made have since remained in effect. See Act 5211b, Deering's General Laws; Stats.1929, p. 1805; Stats.1937, p. 1817. Section 1 was amended to read: ‘Every city and every county shall adopt and establish as herein provided a master plan of said city and county, and official plans based thereon. Such plans are hereby declared to be established to conserve and promote the public health, safety and general welfare’; and section 2 as amended reads: ‘The legislative body of each city may, and of each county shall, create by ordinance a planning commission to consist of nine members, as follows: * * *’ Then follows the set up for the selection and appointment of such members. Further on the act lays down a definite procedure that shall be followed in framing the ordinance, in the enactment thereof, and in making any subsequent changes therein. The procedure prescribed for the enactment of the ordinance provides that first a draft of the proposed ordinance shall be prepared and adopted by the planning commission; that before its adoption the commission shall hold at least one public meeting, notice of which shall be given by newspaper publication; that after its adoption by the commission an attested copy shall be certified to the legislative body of the city or county, upon the receipt of which the legislative body, if it approves the same, shall adopt the proposed ordinance, but only after holding at least one public meeting, notice of which shall be given by newspaper publication. (See sections 4 to 6 inclusive of the act.) And in connection therewith section 6 provides: ‘* * * No change in or addition to the master plan or any part thereof, as adopted by the planning commission, shall be made by the legislative body in adopting the same until the said proposed change or addition shall have been referred to the planning commission for a report thereon and an attested copy of such report shall have been filed with the legislative body.’ A limitation of time is fixed within which the commission must make its report; otherwise it shall be deemed that it has approved such change or addition. Section 9 of the act deals with procedure relating to amendments and changes. It provides that the legislative body may, whenever and as often as it may deem fit for the public interest, change or add to the master plan as theretofore adopted by the commission, but that it shall first refer the proposed change or addition to the planning commission for a report thereon; and that before making such report the planning commission shall hold hearings and give notice thereof, in accordance with the procedure specified for the adoption by the planning commission of the master plan; and that if the commission fails to make such report within the time fixed by the section it will be deemed that the commission approved such change or addition.

In 1938 the County of Marin, complying with the mandatory terms of the state act, enacted Ordinance Number 264. It is based on the state master plan and sets up a comprehensive zoning system for the county covering all territory therein outside of incorporated cities and towns. By its provisions the county is zoned into various districts, including residential, commercial, light and heavy industrial, the uses to which the land lying within the various districts can be put are specified, and the county planning commission is made the administrative board to carry out the provisions and the aims and purposes of the ordinance and the state act. The ordinance also lays down a definite procedure that shall be followed in applying for and in granting use permits necessary to be obtained for operations of different kinds of business in certain districts.

Following the requirements of the procedure thus laid down and on February 7, 1945, the application was filed with the commission for the use permit to construct and operate the fish canning and reduction plant at Waldo Point, which lies within the territory embraced in district M–2 (heavy industrial). Section 11.19 of the ordinance declares: ‘The following regulations shall apply in all ‘M–2’ districts * * * (a) Uses Permitted: All uses not otherwise prohibited by law; provided, however, that none of the following uses shall be established in any ‘M–2’ district unless and until a use permit in each case shall first have been secured for such use: Distillation of bones * * * Dumps, Fat rendering * * * Reduction, canning, processing or treatment of fish or of animal products of any kind * * * All other uses similarly objectionable, in the opinion of the Planning Commission, by reason of odor, dust, smoke, fumes, gas or noise.' (Italics added.)

Section 20 provides that use permits shall be issued under the same procedure as that specified in section 19 except that no public hearing need be held thereon if the planning commission deems such hearings unnecessary; and section 19 provides that at the hearing of the application, the applicant shall present a statement and adequate evidence in such form as the planning commission may require, showing that there are special circumstances or conditions applicable to the land, building or use referred to in the application; that the granting of the application is necessary for the preservation and enjoyment of substantial property rights; that it will not materially affect adversely the health or safety of persons residing or working in the neighborhood of the property of the applicant and will not be materially detrimental to the public welfare or injurious to property or improvements in said neighborhood. Continuing, section 19 provides: ‘The Commission shall make its decision on the said application and shall report such decision to the Board of Supervisors. * * * No permit shall be issued under the provisions of this section unless and until a decision of the Planning Commission, as aforesaid, approving the same, is approved and confirmed by the Board of Supervisors.’ The section then provides: ‘* * * Upon receipt of such report, if the decision of the Planning Commission approved the granting of the application, the Board of Supervisors either shall, by resolution, approve and confirm said decision, whereupon the permit as applied for may issue; or shall refuse to approve and confirm such decision.’ (Italics added.) The parties hereto agree that under the provision last quoted the board of supervisors is authorized to approve the decision of the commission or to refuse approval thereof in cases where the commission has granted the application for the use permit, but that neither the ordinance nor the State Planning Act contains any provision authorizing the board to reject the commission's decision and thereupon to grant a use permit in cases where the commission has denied the application therefor.

In the present case the application for the use permit came on for hearing before the commission on February 23, 1945, at a public meeting, after due notice thereof, and the application was denied. On February 26, 1945, the commission transmitted its report and decision thereon to the board of supervisors, and on that same date the board ordered that consideration of the report and decision be postponed for 30 days to permit the members of the board to make an examination of the same. However, before the expiration of the 30 day period and on March 5, 1945, the board called a special meeting which was attended by a number of interested citizens; and at the conclusion of the meeting there was submitted to the board for adoption a proposed ordinance entitled ‘An ordinance of the County of Marin regulating the establishment, maintenance and operation of reduction plants, prohibiting the escape of offensive or obnoxious odors therefrom, providing penalties for the violation of any of the provisions hereof, and repealing all conflicting ordinances and parts of ordinances.’ Supervisor Thompson moved the adoption of the ordinance, and by a three to two vote the motion was carried; whereupon, for parlimentary reasons only, one of the supervisors who had cast a negative vote changed his vote to the affirmative and moved for a reconsideration, which resulted in postponing further action one week. Immediately after the disposal of the matter of the adoption of the proposed ordinance, Supervisor Thompson moved that the report and decision of the planning commission be rejected and that the application for the use permit to construct and operate the fish cannery and reduction plant at the location mentioned be granted, subject to the provisions of the proposed ordinance, which it will be noted was not then in effect. The motion was carried also by a three to two vote, whereupon the same parlimentary strategy was invoked to postpone further action for one week. Prior to the expiration of that time, however, and on March 10, 1945, the plaintiff B. G. Johnston brought this action for injunctive relief, alleging that the proceedings taken by the three-fifths majority of the board of supervisors on March 5, 1945, were, for the reasons hereinafter stated, illegal and void; that the construction and operation of a fish cannery and reduction plant at the location mentioned would constitute a nuisance, and that his property and other residential properties situate in that vicinity would be irreparably damaged thereby.

As shown by the allegations of the verified complaint, the cause of action set forth therein is based on two principal grounds: (1) That the action taken by the three-fifths majority of the board of supervisors on March 5, 1945, toward the enactment of the proposed ordinance was without any legal authority and in direct violation of the provisions of the state act; and (2) that the proceedings taken by the three-fifths majority of the board in directing the issuance of the use permit after the planning commission had duly denied the application therefor were illegal and void for two reasons: (a) That they were taken without any authority of law and in violation of the provisions of the county ordinance, and (b) that Supervisor Thompson was disqualified from participating in any matter connected therewith, and that therefore since he cast the deciding vote to reject the commission's decision and to grant the use permit the affirmative action taken thereon is not supported by three legal votes.

The law is well settled that the granting or refusal to grant a temporary injunction is a matter that rests in the sound discretion of the trial court, upon a consideration of all the circumstances of each case, and that on appeal its ruling will not be disturbed in the absence of a showing of abuse. In other words, its ruling will be sustained if the appellate court finds any reasonable support for the discretion which the trial court has exercised. See 14 Cal.Jur. p. 180, and cases cited therein. And in this connection it is held that, notwithstanding the contrary general rule, circumstances may justify the issuance of a temporary injunction regardless of absolute denials in the answer; and that to grant such an injunction against a nuisance upon sufficient allegations contained in a verified complaint cannot be said in all cases to constitute an abuse of discretion. Monterey Club v. Superior Court of Los Angeles, 48 Cal.App.2d 131, 119 P.2d 349.

In the present case no abuse of discretion has been shown. On the contrary the circumstances disclosed by the record fully justified the trial court in granting the temporary injunction. Directing attention first to the proceedings taken by the majority members of the board on March 5, 1945, to enact the proposed ordinance, the provisions of the state act, as above pointed out, set up a complete and definite procedure that must be followed by the supervisors both in the enactment of the original zoning ordinance and in making any changes therein; and here the majority members of the board entirely ignored such provisions in the enactment of the proposed ordinance on March 5, 1945. As will be noted, the purpose of the proposed ordinance is expressed in its title, and as shown by the action taken thereunder on March 5, 1945, the majority members of the board construed its provisions as conferring upon the board the authority to reverse the commission's decision denying application for use permit to construct and operate fish canning and reduction plants and other uses similarly objectionable in the opinion of the commission in district M–2 of the county, and to issue permits therefor. It is apparent, therefore, that the effect of the proposed ordinance, if it became operative, would be to nullify completely vital provisions of the existing zoning ordinance which was enacted pursuant to and in conformity with the mandatory terms of the state act. Under such circumstances the trial court acted entirely within the scope of its discretionary powers in issuing the temporary injunction to restrain the supervisors from taking any further proceedings in the matter pending the trial and determination of the action on the merits.

As to the second principal ground of complaint set forth in plaintiff's cause of action, it is equally clear that the action taken by the majority members of the board in rejecting the decision of the planning commission and directing the issuance of the use permit was illegal. As already shown the provisions of the existing zoning ordinance authorizes the board to approve or disapprove the decision of the planning commission in cases where the commission has directed the issuance of a use permit, but neither the ordinance nor the state act authorizes the board to reject or reverse the decision of the commission and direct the issuance of a use permit after the commission in the lawful exercise of its power had denied the application therefor. Nevertheless the majority members of the board usurped such authority.

Appellants contend that properly construed the existing ordinance confers upon the commission only the limited authority to recommend the granting or refusal of use permits, and that the final decision in all cases rests with the supervisors regardless of the denial of the application therefor by the commission. In support of such contention it is argued that the mere absence from the ordinance of a provision conferring such power upon the supervisors does not deprive the board from exercising that power (citing Blevins v. Mullally, 22 Cal.App. 519, 135 P. 307; Sobey v. Molony, 40 Cal.App.2d 381, 104 P.2d 868; and Stanislaus Bridge Co. v. Horsley, 46 Cal. 108). The argument might have weight if as appellants contend there was merely an absence of such a provision from the ordinance; but that is not the situation presented. The ordinance goes on to state specifically in what cases the board may reverse the commission's decision, namely, where the commission has granted the application for the use permit; and that being so such specific provision constitutes the measure of the board's power. In other words the situation falls within the maxim ‘Expressio unius est exclusio alterius,’ which is applicable to and frequently invoked in cases involving statutory construction.

In further support of their contention that the authority conferred upon the commission is only advisory, appellants rely on an excerpt from the opinion rendered in Hopkins v. MacCulloch, 35 Cal.App.2d 442, 95 P.2d 950. The opinion in that case shows, however, that the provisions of the ordinance there under consideration were essentially different from those of the zoning ordinance here involved; consequently the language employed in the opinion is not here controlling. Admittedly under the provisions of the state act the present zoning ordinance can be amended so as to confer upon the supervisors the power it attempted to exercise, provided the procedure laid down in the state act is followed in adopting such an amendment; but until the ordinance is so legally amended the supervisors are bound by the provisions thereof as they now stand.

Nor is there anything contained in section 10 of the state act which supports appellants' view that under the provisions of the existing ordinance the commission acts only in an advisory capacity. The heading of the section and the first sentence thereof read: ‘Submission of other matters to planning commission. The body creating such planning commission may, by general or special rule, provide for the reference of any other matter or class of matters to the planning commission before final action thereon by the public body or officer of said city, county, or city and county, having final authority thereon, with the provision that final action thereon shall not be taken until said planning commission has submitted its report thereon. * * *.’ (Italics added.) From the foregoing it will be seen that the obvious purpose of the section is to authorize the legislative body of the city or county to require officers thereof having jurisdiction over matters which might affect county planning and which are not covered by the existing ordinance to submit such matters to the commission for a report before the officer acts upon the same. The section does not purport to interfere with the discretionary powers that may be exercised by the commission under the provisions of the existing ordinance.

Appellants seek to invoke the rule of contemporaneous construction by pointing out that the excerpts from the board's minutes show that in two particular instances the board granted a permit after the commission had denied the application therefor (citing among other cases Los Angeles County v. Frisbie, 19 Cal.2d 634, 122 P.2d 526). However, it does not appear from the excerpts that in either of those instances the applicant as here applied for a permit to construct and operate a business falling within the class of those enumerated in section 11.19 of the ordinance. Moreover, it is apparent from reading the cases cited by appellants that the rule of contemporaneous construction may not be applied where, as here, the plain wording of the statute calls for a different construction.

Finally, on this branch of the case, appellants contend that if the ordinance be construed as foreclosing the board from granting use permits after decision by the commission denying the same it thus deprives the board from exercising the legislative power conferred upon it by statute; and that to that extent the ordinance is invalid; furthermore, that if at the time of the adoption of the zoning ordinance the supervisors then in office, by the terms of the ordinance, attempted to make the decision of the commission final in cases where the commission had denied an application for a use permit, the ordinance to that extent is void as constituting an illegal abdication of the legislative powers of the board. There is no merit in any of the points so made. The state act clearly reserves to the board the legislative power to enact and amend all ordinances necessary to carry out the purposes of the State Planning Act; and in the present case the board exercised such power in the enactment of the original ordinance. While it is true that the board's legislative power may not be legally delegated or renounced, it is obvious that the function of issuing a use permit pursuant to the provisions of a zoning ordinance duly enacted by the board of supervisors involves a purely administrative act, and not a legislative act; and appellant has not called attention to any authorities which hold that a board of supervisors may not, by ordinance, properly confer upon a commission or on officers the authority to perform purely administrative functions, provided, of course, the performance of those functions are not by law enjoined upon the board. As above stated, if the board becomes dissatisfied with the operation of the existing zoning ordinance, it has the power to make such changes therein as it deems fit, provided it follows the procedure prescribed in the state act.

Briefly, the charge of disqualification made against Supervisor Thompson was based on these facts: Throughout the proceedings had before the planning commission and the board of supervisors to obtain the use permit, Alioto and Benicia Food Products Company were represented by Attorney Natalie J. Holly. She is the wife of Supervisor Thompson and was so during the period of time covered by those proceedings. Respondent contends, therefore, that because of the existence of such marital relationship Supervisor Thompson under the community property law of this state had a direct interest in whatever earnings his wife received or might receive for the legal services performed by her in connection with obtaining the use permit, which operated to disqualify him from participating in the proceeding to determine whether or not the board should issue the use permit. At the commencement of the proceedings had before the board on March 5, 1945, respondent challenged the qualifications of Supervisor Thompson by making appropriate objections to his participating in any matter connected with the denial of the use permit; but the objections were overruled. In support of his contention that Supervisor Thompson had an interest in the subject matter of the proceeding that the board was about to hear and decide, respondent cites the case of Nielsen v. Richards, 75 Cal.App. 680, 243 A. 697; and in support of his contention that such interest disqualifies supervisor Thompson from participating in the proceeding involving the issuance of the use permit respondent cites and quotes from the case of Noble v. City of Palo Alto, 89 Cal.App. 47, 264 P. 529. The position taken by appellant is that in this state the question of disqualification is controlled by statute; and that sections 1090 and 1091 of the Government Code restrict such disqualifications to matters (1) involving contracts made by them in their official capacity, or by a body or board of which they were members; and (2) to purchases or sales made by them in their official capacity; and appellants contend therefore that since none of those situations were here involved, Supervisor Thompson was not disqualified. In reply to this latter contention respondent argues that the statute is not controlling, and that apart therefrom there is an old and well established legal doctrine having its origin in the common law and founded on public policy and sound morals, which declares that a public officer is disqualified from participating in any proceeding in which he is called upon to exercise a discretionary power and in which he has a personal interest, regardless of the nature of the subject matter involved; and that such doctrine has been fully recognized by the courts of this state, citing Noble v. City of Palo Alto, supra, which quotes from a number of authorities from other jurisdictions; and numerous authorities are to be found holding that if the disqualified officer is the member of a board or an official body, and that his is the deciding vote, the action taken by the board is void. See note to 133 A.L.R. p. 1263.

Necessarily the question of disqualification opens up a broad field of inquiry for the reason that the provisions of sections 1090 and 1091 of the Government Code relied on by appellants are made to apply to ‘members of the Legislature, State, county, township and city ‘officers'; and the legal doctrine which respondent seeks to invoke includes even a greater number of public officers. In the present case it is evident that the issue of disqualification was made part of respondent's cause of action as an alternative issue, which would become a controlling issue only in the event of a holding adverse to respondent on the other two issues which go to make up his cause of action. Since, therefore, on this appeal, those two other issues have been decided in respondent's favor, from which it follows that this court's decision thereon will constitute the law of the case and be binding on the parties at the trial on the merits, and in whatever trial court proceedings may be had leading up to the trial, there could be no useful purpose served in prolonging this opinion by indulging in a discussion of and deciding the alternative issue.

The remaining points appellants urge for reversal are without merit, and are not of sufficient importance to call for special attention.

The order granting the temporary injunction is affirmed.

KNIGHT, Justice.

PETERS, P. J., and WARD, J., concur.

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