ESSICK v. CITY OF LOS ANGELES

Reset A A Font size: Print

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

ESSICK et al. v. CITY OF LOS ANGELES et al.

Civ. 16819.

Decided: April 22, 1949

Carl W. Barrow, of Los Angeles, for appellants. Ray L. Chesebro, City Atty., and Bourke Jones and Roger Arnebergh, Asst. City Atty., all of Los Angeles, for respondents City of Los Angeles and its officials. Ugene U. Blalock and Harold S. Morrison, both of Glendale, and Towson T. MacLaren, of Los Angeles, for respondent Forest Lawn Company.

From a judgment of dismissal on motion of defendants of an action for declaratory relief relative to the validity of section 20 of Ordinance No. 91,503 of the City of Los Angeles, plaintiffs appeal.

FACTS

i. Complaint: In their complaint as amended plaintiffs alleged that they were qualified voters and electors of the City of Los Angeles and owned real property located in an R–1 One Family Zone; that defendant Forest Lawn Company also owned in the same zone 486 acres of land; that they filed the action on behalf of themselves and all real property owners located in the same zone similarly situated; that on March 7, 1946, the city council of defendant city passed Ordinance No. 90,500, commonly known as the Comprehensive Zoning Plan of the City of Los Angeles, which ordinance provided, among other things, that no cemeteries were to be located in the zone which included the respective properties of plaintiffs and defendant Forest Lawn Company, except that a procedure for the obtaining of a permit for the “conditional use” of property for cemetery purposes was established by subsection C of section 12.24 of said ordinance; that in February, 1947, the city council of defendant city passed section 20 of Ordinance No. 91,503 which amended the procedure established under section 12.24 of Ordinance No. 90,500 for obtaining a “conditional use permit;” that the procedure provided for in the ordinance as thus amended was that an applicant desiring to obtain permission to put his property to a nonconforming use should apply to the city planning commission; that a hearing was to be had thereon and in the event the city planning commission disapproved the application the applicant could apply to the city council which might “by resolution” modify or overrule the determination of the city planning commission by a two-thirds vote of the council and thereby grant a “conditional use;” in compliance with the provisions of the ordinance just mentioned defendant Forest Lawn Company submitted an application to the city planning commission on December 8, 1947, for a “conditional use” for cemetery purposes of their property, consisting of 486 acres of land located in the zone above mentioned; after a public hearing such application was denied by the city planning commission; on February 5, 1948, said defendant appealed to the city council of the City of Los Angeles, which on March 8, 1948, passed a resolution reversing the action of the city planning commission and granted defendant Forest Lawn Company's application for a “conditional use” of its property for cemetery purposes pursuant to which said defendant has commenced the construction of a cemetery upon its property.

It was further alleged that the foregoing ordinances are contrary to the provisions of section 97 of Article VIII of the Charter of defendant city and are therefore null and void.

Finally, it was alleged that an actual controversy existed between plaintiffs and defendants relating to their legal rights under the above mentioned ordinances and charter provisions, and it is prayed that the court make an adjudication thereof and declare the ordinances void.

ii. Motion to Dismiss: Defendants filed motions to dismiss the complaint on the grounds that (a) the court had no jurisdiction on the subject of the action since the complaint did not present a justiciable controversy, and (b) it was not necessary or proper under the circumstances at that time for the court to make a declaration or determination of the rights and duties of the plaintiffs relative to the subject matter of the complaint as amended. This motion was granted.

Questions

First: Did the complaint present a justiciable controversy?

The answer to this question is yes, because of these rules:

1. The charter of a municipality is its constitution or organic law and operates as a limitation upon the powers which may be exercised by a city council. (Wehrle v. Board of W. & P. Com'rs, 211 Cal. 70, 73, 293 P. 67; Platt v. City and County, 158 Cal. 74, 84, 110 P. 304; Thille v. Board of Public Works, 82 Cal.App. 187, 189, 255 P. 294.)

2. When a municipal charter definitely contains a method of procedure for the exercise of a power granted to municipal authorities all other methods of exercising the power are excluded. (McQuillin, Municipal Corporations, 2d Ed.1940, vol. 1, para. 386, p. 1061.)

3. The provisions of a municipal charter may be changed only by amendment in the method prescribed by law, and may not be amended by the passage of an ordinance. (Platt v. City and County, 158 Cal. 74, 83, 110 P. 304.)

4. An ordinance passed by a municipal corporation cannot change or limit the effect of a provision of the municipal charter. In order to be valid an ordinance must conform to the provisions of the charter. (Marculescu v. City Planning Comm., 7 Cal.App.2d 371, 373, 46 P.2d 308.)

5. In determining the validity of an ordinance, where the basis of the attack is that the ordinance is contrary to provisions in the municipal charter, the latter is to be considered according to its provisions at the time the questioned ordinance was enacted and not in the light of subsequent amendments. (Fleming v. Hance, 153 Cal. 162, 164, 94 P. 620; German Sav. etc. Soc. v. Ramish, 138 Cal. 120, 131, 69 P. 89, 70 P. 1067; Banaz v. Smith, 133 Cal. 102, 104, 65 P. 309.)

In 1946 and in February, 1947, when the ordinances hereinafter mentioned were adopted, the Charter of defendant municipality read in part as follows:

Section 97: “No ordinance, order or resolution shall be adopted by the Council authorizing, ordering or involving any of the following enumerated matters, unless and until such ordinance, order or resolution shall have first been submitted to the City Planning Commission for report and recommendation concerning the relation of the matter involved to and its effect upon any portion of the master plan of the City or any plans being prepared by said department: *

“c. The creation of districts or zones for the purpose of regulating the use of lands, density of population, the height, bulk, location or use of buildings therein, or the size of yards, open spaces or setbacks adjacent to buildings, or the changing, amending, or altering of any such zones, districts or regulations.

“It shall be the duty of the City Planning Commission within thirty (30) days from the receipt of any such proposed ordinance, order or resolution, to make and file its report and recommendation thereon with the Council, and should said Planning Commission recommend against the approval of the matter involved, the Council may adopt such ordinance only upon a two-thirds vote of the whole of said Council. Should the City Planning Commission recommend approval or fail to make any recommendation within the time mentioned herein, said Council may adopt such ordinance, order or resolution by a majority vote of the whole Council. *”

“Sec. 98. There is hereby created the office of Zoning Administrator. *

“(c) Subject to such rules and regulations as the Council may by ordinance prescribe he shall investigate, hear and determine all applications for variances from the rules, regulations, restrictions and requirements of the zoning ordinances and shall have power to grant such variances as may be in harmony with the general purpose and intent of said ordinances and in accordance with the general and specific rules therein contained and subject to such conditions and safeguards as he may impose. He shall have authority to grant variances only when practical difficulties, unnecessary hardships or results inconsistent with the general purposes of the zoning regulations may result from the strict and literal interpretation and enforcement of the provisions thereof and before any variance may be granted, it shall appear and the Zoning Administrator shall specify in his findings the facts in each case which shall establish beyond a reasonable doubt:

“(1) That there are exceptional or extraordinary circumstances or conditions applicable to the property involved or to the intended use of the property that do not apply generally to the property or class of uses in the same district or zone;

“(2) That such variance is necessary for the preservation and enjoyment of a substantial property right of the petitioner, possessed by other property in the same zone and vicinity; and

“(3) That the granting of such variance will not be materially detrimental to the public welfare or injurious to the property or improvements in such zone or district in which the property is located; and

“(4) That the granting of such variance will not adversely affect the master plan.

“The determination of the Zoning Administrator shall be final except that appeals therefrom may be taken to the Board of Zoning Appeals, as hereinafter provided, by any person aggrieved or by an officer, board, department or bureau of the City. *”

“Sec. 981/212. There is hereby created a Board of Zoning Appeals, consisting of three (3) members, who shall be appointed by the Mayor subject to confirmation of the Council, one of whom may be a member of the City Planning Commission. *”

“Sec. 99. The Board of Zoning Appeals shall have and exercise the following powers: *

“(b) To hear and determine appeals from the rulings, decisions and determinations of the Zoning Administrator granting or denying applications for variances from any rule, regulation, restriction or requirement of the zoning ordinances, or any section thereof.

“Upon the hearing of such appeals said board may affirm, change or modify the ruling, decision or determination appealed from, or, in lieu thereof, make such other or additional determination as it shall deem proper in the premises, subject to the same limitations as are placed upon the Zoning Administrator by this charter.” (Italics added.)

Defendant city council on March 7, 1946, adopted Ordinance No. 90,500 and in February, 1947, Ordinance No. 91,503, whereby a procedure was established for what was termed “conditional use of zoned property.” By these ordinances it was provided that an applicant desiring to obtain permission to put his property to a nonconforming use should apply to the city planning commission; that if after a hearing had been had thereon the city planning commission disapproved the application, the applicant could appeal to the city council which might “by resolution” modify or overrule the determination of the city planning commission by a two-thirds vote of the council, thereby granting a “conditional use” of the property.

Two methods were provided a property owner by the city charter for obtaining a variance from the provisions of a zoning ordinance: (1) A matter could be submitted by the city council to the planning commission and if the planning commission disapproved the application for a variance the city council might thereafter adopt an ordinance upon a two-thirds vote of the whole council granting the requested variance. (Sec. 97 of the municipal charter, supra.) (2) An owner of property could apply for a variance from the requirements of the zoning ordinance by applying to the zoning administrator from whose decision an appeal might be taken to the Board of Zoning Appeals. This body's decision was final. (Sections 98, 981/212 and 99 of the municipal charter, supra.)

It is apparent that the city council in adopting Ordinances No. 90,500 and No. 91,503 attempted to create a third method by which a property owner might obtain a variance from a zoning ordinance, to wit, by permitting him to apply to the city planning commission and if his application was denied, appealing to the city council, which “by resolution” could modify or overrule the decision of the city planning commission by a two-thirds vote.

We are now confronted with this proposition urged by plaintiffs: That Ordinances No. 90,500 and No. 91,503 are invalid and void because contrary to the provisions of the charter of defendant municipality. This proposition is tenable in view of the above stated rules. Since defendant city and its agencies are limited in the exercise of their powers by the provisions of the municipal charter (rule 1, supra), and since the charter provides only two methods of obtaining a variance from a zoning ordinance, these methods constitute a limit of defendant municipality's power to grant variances in zoning ordinances (rule 2, supra). The ordinances being contrary to the provisions of the charter can not amend or alter the procedure set forth in the charter for obtaining a variance from a zoning ordinance (rules 3 and 4, supra). Finally, since at the time the ordinances were adopted the charter referred to above was in effect, such provisions control and render invalid the ordinances which were adopted contrary to the provisions of the charter (rule 5, supra).

Defendants' attempt to draw a distinction in this case between the granting of a “variance” and a “conditional use permit” is without merit. It is obvious that permitting the use of 486 acres for cemetery purposes in a zone restricted to one-family homes constitutes a variance in the use of the property as well as a permission to use it for a purpose other than that for which it was zoned. (See Webster's New International Dictionary, 2d Ed.1947, page 2818, wherein “variance” is defined as “change; variation or a degree of such; difference; deviation.”) There is no doubt that if defendant Forest Lawn Company is permitted to use its 486 acres for cemetery purposes it will constitute a variance in the zoning ordinance.

North Side Property Owners' Ass'n v. County of Los Angeles, 70 Cal.App.2d 598, 161 P.2d 613, and North Side Property Owners' Ass'n v. Hillside Memorial Park, 70 Cal.App.2d 609, 161 P.2d 618, are not authorities to the contrary.

In view of the foregoing, the complaint, contrary to defendants' contention, did not show from the allegations contained therein that the ordinances were valid but did show that they were invalid and thus presented a justiciable issue.

Second: Was it necessary or proper under the circumstances alleged in the complaint as amended for the court to make a declaration of the rights and duties of the respective parties in regard to the matters alleged?

This question must be answered in the affirmative and is governed by these rules:

1. The power of the court to refuse to entertain an action for declaratory relief brought pursuant to the provisions of section 1060 of the Code of Civil Procedurea1 is not an arbitrary power (see sec. 1061) but is a sound discretion vested in the trial court which must be exercised to permit the maintenance of a declaratory relief action if the complaint sets forth facts and circumstances showing that a declaratory adjudication is appropriate. (Columbia Pictures Corp. v. DeToth, 26 Cal.2d 753, 762, 161 P.2d 217, 162 A.L.R. 747.)

2. A declaratory relief action may be invoked to test the constitutionality of a statute or zoning ordinance. (Lord v. Garland, 27 Cal.2d 840, 852, 168 P.2d 5; Andrews v. City of Piedmont, 100 Cal.App. 700, 701, 281 P. 78; Jones v. Robertson, 79 Cal.App.2d 813, 819, 180 P.2d 929.)

3. In seeking declaratory relief a plaintiff in pleading and proof is not bound by the rules applicable in an action for an injunction or which apply in equity cases. (See Borchard, Declaratory Judgments, 2d Ed.1941, pages 239, 240, 365.)

Under rule 1, supra, if the complaint alleges facts sufficient to show that a declaratory judgment is appropriate the trial court is bound to take cognizance of the action. That it did allege such facts is demonstrated because plaintiffs were seeking to have declared void an invalid ordinance (see rule 2, supra), and the complaint did not fail to show that it was an appropriate case for declaratory relief because of the absence of allegations that plaintiffs suffered injury different from that which other people similarly situated might suffer (rule 3, supra). Since it appears from the allegations of the amended complaint that it is necessary and proper under the circumstancees alleged that there should be a declaration and determination of the legal rights and duties of the respective parties the court abused its discretion in adjudging that the amended complaint did not present a justiciable issue. (Code Civil Procedure, sec. 1061.)

From the complaint it appears that plaintiffs are property owners in an area which was zoned for one-family dwellings; that defendant Forest Lawn Company was claiming the right under an invalid ordinance to use 486 acres of its land located in the same zone and within a few miles (approximately 51/212 miles) from plaintiffs' property for cemetery purposes. It is a matter of common knowledge that the proximity of a cemetery to residential property affects its value. In view of the foregoing facts it is evident that plaintiffs are entitled to maintain their action for declaratory relief.

The judgment is reversed.

FOOTNOTES

1.  Section 1060, Code of Civil Procedure reads: “(Declaratory relief.) Any person interested under a deed, will or other written instrument, or under a contract, or who desires a declaration of his rights or duties with respect to another, or in respect to, in, over or upon property, or with respect to the location of the natural channel of a watercourse, may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an action in the superior court for a declaration of his rights and duties in the premises, including a determination of any question of construction or validity arising under such instrument or contract. He may ask for a declaration of rights or duties, either alone or with other relief; and the court may make a binding declaration of such rights or duties, whether or not further relief is or could be claimed at the time. The declaration may be either affirmative or negative in form and effect, and such declaration shall have the force of a final judgment. Such declaration may be had before there has been any breach of the obligation in respect to which said declaration is sought.”

McCOMB, Justice.

MOORE, P.J., and WILSON, J., concur.