DRAKE et al v. CITY OF LOS ANGELES et al.
Plaintiffs, as taxpayers, brought this action to restrain the city of Los Angeles and the Housing Authority of the city of Los Angeles from developing, constructing, or acquiring certain housing projects. The county of Los Angeles and its tax collector were joined as defendants because some of the property proposed to be used as sites for the projects was tax-deeded land. The demurrers of the respective defendants were sustained without leave to amend. Plaintiffs appeal from the judgment of dismissal which followed.
The United States Housing Act of 1937, as amended, authorized the Public Housing Administration of the United States to give financial assistance to local governments for the development, acquisition, or administration of slum-clearance and low-rent housing projects. The assistance may be in either or both of two forms: a grant or loan for the making of preliminary investigations, surveys, and planning, and grants or loans for the acquisition, construction, and operation of the projects. Precedent to the granting of a preliminary loan, the governing body of the locality involved must have approved the public housing agency's application therefor by resolution. Precedent to receiving other financial aid, the local governing body must have entered into an agreement with the public housing authority providing a) for the demolition or compulsory repair of unsafe and unsanitary dwelling units in a number equal to those to be constructed; and, b) for the local co-operation required by the Public Housing Administration.1
In 1938 the California Legislature enacted the Housing Authorities Law2 and the Housing Cooperation Law.3 The Housing Authorities Law created a Housing Authority in each city, county, and city and county in the state, and declared the public necessity for slum-clearance and low-rent housing projects. Each Housing Authority is a body corporate and politic, complete in itself, separate and distinct from the public corporation in which it operates. Section 8(b) of the Law, in part, reads: ‘provided, that * * * no low-rent housing or slum-clearance project shall hereafter be developed, constructed, or owned by an authority * * * until the governing body of the city * * * in which it is proposed to develop, construct, or own the same, approves said project by resolution duly adopted.'4 The Law specifically provides that ‘No provisions of law with respect to the acquisition, operation or disposition of property by other public bodies shall be applicable to an authority unless the Legislature shall specifically so state.'5
Section 13 of the Law provides: ‘All housing projects of an authority shall be subject to the planning, zoning, sanitary and building laws, ordinances and regulations applicable to the locality in which the housing project is situated. In the planning and location of any housing project, an authority shall take into consideration the relationship of the project to any larger plan or long-range program for the development of the area in which the housing authority functions.'6
Section 73 of the State Conservation and Planning Act provides, in effect, that when a city has adopted a master plan no street shall be closed, and no public building or structure shall be constructed or authorized, until the matter shall have been submitted to and reported on by the Planning Commission.7
The Housing Co-operation Law authorizes a city in which an authority is located to aid and co-operate in ‘the planning, undertaking, construction or operation of housing projects', and to plan or replan, zone or rezone, any part of the city, and to enter into agreements with an authority ‘respecting action to be taken by [the city] pursuant to any of the powers granted by this act; * * *.'8 The Housing Co-operation Law specifically provides that the exercise of these powers may be authorized by resolution of the city council and such ‘resolution may be adopted at the meeting at which such resolution is introduced. Such a resolution * * * shall take effect immediately and need not be laid over or published or posted.'9
Section 97 of the Charter of Los Angeles provides that no ordinance or resolution authorizing, ordering, or involving any public building site, the location of any public building, or the changing of zones, shall be adopted by the Council until it shall have first been submitted to the City Planning Commission for report and recommendation.10
The complaint alleges:
1. On March 7, 1946, the city, by ordinance, set forth a master plan for the zoning of the city and adopted a comprehensive zoning plan.
2. Sometime prior to August 8, 1949, the Housing Authority determined it would propose the development of low-rent housing projects of 10,000 units.
3. On August 8, 1949, the Council adopted Ordinance 95222, an urgency ordinance effective immediately, which recited that the Housing Authority ‘proposes to develop and administer a low-rent housing project or low-rent housing projects' consisting of about 10,000 dwelling units. The ordinance approved ‘the development, construction, and operation’ of the projects ‘in accordance with Section 8(b) of the Housing Authorities Law.’ It also approved the application of the Housing Authority to the Public Housing Administration ‘for a preliminary loan for surveys and planning in respect to such projects.’ The ordinance authorized the execution of a co-operation agreement between the city and the Housing Authority. The agreement, executed August 9, 1949, in part, read: ‘7. The City further agrees to cooperate with the Authority by vacating without cost to the Authority such streets, roads, roadways, alleys and sidewalks within the area of the Projects, or adjacent thereto as may be necessary in the development of such Projects, by accepting the dedication of land for new streets and alleys, by zoning or re-zoning to an appropriate residential classification any area in the City within which the Projects shall be located, and by such other lawful action or ways as the Authority may find necessary in connection with the development and construction of the Projects,’ and ‘This Agreement shall evidence the following actions by the City Council: (a) Approval by the City Council of the Projects as required by Section 8(b) of the Housing Authorities Law of California,’ and said the sites of the projects were to be selected by the Housing Authority.
At that time no sites had been selected, no determination had been made as to the number of low-rent family dwelling units which would be contained in each project, no application had been made to the Public Housing Administration for a loan, and no contract had been made with the federal government for annual contributions. Ordinance 95222 was not first submitted to the City Planning Commission for report and recommendation as to its effect on any portion of the master plan of the city.
4. Between August 9, 1949, and August 16, 1950, the Housing Authority procured a preliminary loan of $1,729,000 from the Public Housing Administration for the purpose of making a study as to the location, size, character, and all other details, of one or more low-rent housing projects to accommodate 10,000 family dwelling units; made an annual contribution contract with the Public Housing Administration to assist in the development and administration of the projects estimated to cost about $200,000,000; made studies and determined on twelve projects.
5. On August 17, 1950, the Housing Authority sent a letter to the Council stating it had selected twelve sites and was ‘well advanced in the preparation of plans and specifications and land acquisition for the development of housing projects on said sites. The sites have been approved by the City's Planning Department and the Public Housing Administration.’ The letter listed the sites and a map of each was attached. It requested that no further building permits be issued, and stated: ‘After the sites have been acquired, the Housing Authority will make application for any zoning or rezoning as may be necessary pursuant to Section 7 of the Cooperation Agreement.’ The Council referred the letter to a committee. It was alleged it was not true, as stated in the letter, ‘that the twelve projects had been submitted to the City Planning Commission.’
6. On November 16, 1950, the Housing Authority sent a letter to the Council committee in which it advised that one site had been abandoned and the bound-aries of several others revised. The letter requested that the proposal of the Housing Authority to acquire the land comprising the eleven sites described on attached maps be approved ‘in accordance with the last paragraph of Section 12.24 B. 1. of the Comprehensive Zoning Plan [grant of a conditional use permit]’ of the city.
7. On November 22, 1950, the committee reported to the Council recommending that the proposal to acquire eleven sites and the request of the Housing Authority be approved. The report stated the committee was advised the sites had been approved ‘by the Planning Department.’ In fact the projects had not been submitted to the ‘City Planning Commission’ for report and recommendation. At no time has the selection of said sites or ‘the proposal to construct public buildings as said locations' been submitted to the City Planning Commission for report and recommendation as required by section 97 of the Charter. The report of the committee was adopted by the Council by resolution on November 22, 1950.
8. The complaint also alleged that: on October 31, 1950, the Council of the city of Los Angeles and the Board of Supervisors of the county of Los Angeles entered into an agreement whereby the Council agreed to purchase the state's title in 414 parcels of land, which had been deeded to the state for delinquent taxes, to be used in connection with one of the housing projects; the agreement was approved by the State Controller; the tax collector of the county had been authorized to give notice of the agreement as provided by law; he had given such notice; the city ‘as such’ does not contemplate the construction of any public housing; the time for redemption of tax-deeded property has expired and the tax collector is preparing a deed of the property to the city. The resolution by which the Council authorized execution of the agreement recited that it is proposed the property ‘be acquired by the City and subsequently be purchased by the Housing Authority after Federal authorization is received.’
Plaintiffs contend that under section 8(b) of the Housing Authorities Law, a Housing Authority has no power to develop, construct, or own a slum-clearance or low-rent housing project until the Council of the city has approved that precise project; that the Council did not approve precise projects, and, consequently, the Housing Authority has no power to proceed. They say the thing to be approved is ‘a specific low-rent housing project having situs and size and character.’ Plaintiffs also contend that because, under section 13 of the Law, all housing projects ‘of an authority shall be subject to the planning, zoning, sanitary and building laws, ordinances and regulations applicable to the locality in which the housing project is situated’, it was essential the projects be submitted to the City Planning Commission pursuant to section 97 of the Charter and section 73 of the State Conservation and Planning Act for report and recommendation before the Council could act thereon; that as the projects were not submitted to the Planning Commission before the Council approved them, the action of the Council was void, and the Housing Authority is without authority to proceed.
We have concluded that plaintiffs' contentions are unsound and the complaint does not state facts sufficient to constitute a cause of action.
In view of various statements in plaintiffs' briefs, we should say at the outset that we are not concerned with the wisdom of the Housing legislation or of the procedure therein described. The Housing Authorities Law has been held constitutional.11 If, as plaintiffs say, Housing Authorities have become ‘political Frankensteins,’ the remedy is not with the courts. Our sole province is to declare the law as we find it.
We read Kleiber v. City, etc., of San Francisco, 18 Cal.2d 718, 117 P.2d 657, and Housing Authority v. Superior Court, 35 Cal.2d 550, 219 P.2d 457, as settling the following proposition of law: 1) the declared purpose and policy of the Housing legislation is slum-clearance and substitution of low-rent, safe, and sanitary dwellings; 2) the public purpose and policy of the law is effective throughout the state; 3) the subject matter of the law is of state-wide, and not merely of local, concern; 4) the law applies to and affects the entire citizenry of the state as a body, whether the details incident thereto be executed in one or another, in several or all, of the political subdivisions authorized to act thereunder; 5) every necessary legislative act was completed by the Legislature, and there was nothing left to do except administer the law; 6) the steps to be taken by the city are not legislative but administrative in character, designed merely as detail to carry out a previously declared legislative purpose and policy; 7) except as otherwise specifically provided in the Housing Authorities Law, that law supersedes all laws, charter provisions, and ordinances; 8) the city, to gain the advantages of the Law, must proceed in the manner specified by the Housing Authorities Law, and the statute is the only authority under which the city may act in the premises.
Ordinance 95222, pursuant to section 8(b) of the Housing Authorities Law, specifically approved the proposed development, construction, and operation of lowrent housing projects of about 10,000 units. Plaintiffs argue that this approval was void. They say the Council can only approve specific projects, complete as to location, type, size, and similar details. Section 8(b) says that no project shall be developed ‘until the governing body of the city * * * in which it is proposed to develop, construct, or own the same, approves said project by resolution * * *.’ (Italics added.) We think it manifest that it is a ‘proposed’ project which must be approved before it may be developed. Approval must be given before development. The Federal Housing Act12 defines ‘development’ as ‘any or all undertakings necessary for planning, land acquisition, demolition, construction, or equipment, in connection with a lowrent housing project.’ We have no doubt the California Legislature used the word ‘develop’ in the same sense. To develop and present to the Council a specific project as described by plaintiffs would entail the expenditure of large sums of money13 which, in large part, would have to come from the federal government in the form of a preliminary loan.14 It is not reasonable to assume the Legislature intended that an Authority should obligate itself for a loan (here in excess of $1,700,000) without first obtaining the approval of the Council. The thing to be approved was a ‘proposed’ project. The requirement that a ‘proposed’ project be approved connotes that approval shall be given of a general proposal as distinguished from approval of a specific detailed project. There is no language in the Housing Authorities Law indicative of an intent that at the time the Council approves a project there shall be before it a determination of the sites of the buildings, specific plans and specifications for the dwelling units (e. g., their size, number of rooms in each unit, their arrangement), for front yards, for service yards, for streets, for parking areas, for walks, for play or garden areas, for disposal facilities, or for any of the other details going to make up a so-called modern housing project. The amendment of section 8(b) in 1945 was designed to make city approval a condition precedent to the doing of any work in the development of a project. Its purpose was to give the city the power to determine whether a particular project was or was not needed, and to give approval only if a project was needed. The concept of the federal legislation is the same: it is that the local governing body of the area in which the Authority functions shall determine whether a project is needed and shall be developed.15 When, on November 22, 1950, the Council again approved the projects, there were before it eleven definite projects, specifically located and described. This, in itself, was sufficient to constitute the approval required by section 8(b) of the Law.
Failure to submit the proposed projects to the Planning Commission before approval by the Council did not render the approval void. In approving the projects the Council was acting in an administrative capacity as an agent of the state. It was compelled to act in the manner prescribed by the Housing Authorities Law; not in the manner prescribed by the Charter of the city, unless the Housing Authorities Law specifically so states.16 Section 8(b) of the Law expressly provides the manner in which the Council shall act. It is by resolution.17 There is no requirement that the question of approval or disapproval shall first be submitted to the Planning Commission. Section 97 of the Charter is not applicable to the action of the Council in acting under section 8(b). Unless general municipal statutes, charter provisions, and municipal ordinances are expressly made applicable by the Housing Authorities Law to the city acting in its administrative capacity, such general municipal statutes, charter provisions, and municipal ordinances are not applicable.18 When section 13 of the Law says that all housing projects of an Authority shall be subject to the planning, zoning, sanitary, and building laws, ordinances, and regulations applicable to the locality in which the project is situated, it simply means that as a project is developed or constructed it shall conform to such laws, ordinances, and regulations; and if, as developed, it does not so conform, it cannot be constructed unless there is a change in such laws, ordinances, and regulations. It is evident from the wording of section 13 of the Law that its provisions apply only after a site for a project has been acquired by an Authority, and under section 8(b) a site cannot be acquired by an Authority until the proposed project has been approved by the Council. Section 13 says: ‘All housing projects of an authority shall be subject to the planning, zoning * * * laws * * *.’ (Italics added.) A project cannot be ‘of an authority’ if it is merely a proposed project, as were those approved by the Council. For the same reasons section 73 of the State Conservation Act does not apply to the approval of a proposed housing project.
Assuming, without deciding, that the approval of a housing project involves a ‘public building site,’ as argued by plaintiffs, we are of the view that the acquisition of a housing site is not within the meaning of the requirement of section 97 of the Charter that no resolution of the Council involving ‘acquisition * * * of any * * * public building site’ shall be adopted ‘unless and until such * * * resolution shall have first been submitted to the City Planning Commission for report and recommendation * * *.’ It appears patent from the language of section 97 that the acquisition of a public building site refers to the acquisition of a public building site by the city itself and not to the acquisition of a public building site by a separate and independent public corporation.
To hold it was necessary to follow the procedure prescribed by section 97 of the Charter or section 73 of the State Conservation and Planning Act prior to the approval of a housing project would, in effect, nullify the specific procedure prescribed by the Housing Authorities Law.19
In concluding that the acts of the Council in enacting Ordinance 95222 and in adopting the resolution of November 22, 1950, were valid, we are not to be understood as holding that the Housing Authority or the Council is not required to comply with section 97 of the Charter. As we have seen, section 13 of the Authorities Law provides that all housing projects shall be subject to the planning, zoning, sanitary, and building laws, ordinances, and regulations of the city.20 Conformity with the planning, zoning, sanitary, and building laws, ordinances, and regulations of the city is a mandatory requirement and not a matter of discretion. Section 4 of the Housing Cooperation Law authorizes the city, ‘upon such terms, with or without consideration, as it may determine’, to plan or replan, zone or rezone, any part of the city for the purpose of aiding and cooperating in the planning, undertaking, construction, or operation of housing projects.21 We do not construe section 7 of the Cooperation Agreement by which the city agreed to cooperate with the Authority ‘by zoning or re-zoning to an appropriate residential classification any area in the City’ as a commitment by the city to make such rezoning as the Authority may think necessary. This is in accord with the construction placed on the agreement in the letter of August 15, 1950, from the Authority to the Council in which it said: ‘After the sites have been acquired, the Housing Authority will make application for any zoning or rezoning as may be necessary pursuant to Section 7 of the Cooperation Agreement.’ The city did not by the agreement commit itself to do any specific thing in a specific location not then existing. The agreement did not supplant or supersede the planning, zoning, sanitary, and building laws, ordinances, and regulations applicable to the locality in which the project is situated; nor did it render unnecessary resort thereto at such time as the activities of the Authority are such as to require compliance therewith. The agreement is but a commitment that the city will co-operate by using its powers in aid of the accomplishment of the purposes of the Housing Authorities Law.22 We must presume official duty will be regularly performed. We must assume, as nothing to the contrary is alleged, that as the Authority proceeds in the planning, development, and construction of the projects, it and the Council will comply with all zoning, and other pertinent laws, ordinances, and regulations. The resolution of the Council of November 22, 1950, constituted a determination that the location of the projects conformed to the master plan. It did not constitute a determination that the planning, development, or construction of the projects conformed to the zoning, and other pertinent laws, ordinances, and regulations. The Council may, of course, acting in conformity with the Charter, and relevant laws, ordinances, and regulations, replan or rezone any part of the city for the purpose of aiding in the construction of a project.
The Housing Authority urges that because of specific provisions of Ordinance 90500 of the city (the ordinance which adopted the Comprehensive Zoning Plan), the action of the Council of November 22, 1950, constituted the grant of a conditional use permit for which no application to the Planning Commission was necessary.23 The city and the plaintiffs contend the contrary. The provisions of the ordinance referred to in the briefs are not pleaded in the complaint and are not before us. It appears from the record (affidavit of Howard L. Holtzendorff in support of motion to dismiss or affirm) that since the complaint was filed, conditional use permits have been formally applied for and granted. It is unnecessary, therefore, to determine this question.
The allegations of the complaint that the city proposed to buy tax-deeded land to be sold to the Housing Authority, do not state facts sufficient to constitute a cause of action. The city has the legal right to purchase tax-deeded land for a public use.24 The Housing Cooperation Law specifically empowers the city to ‘[d]edicate, sell, convey or lease any of its property to a housing authority’.25
Respondent Housing Authority filed a notice of motion to dismiss the appeal or affirm the judgment. As the judgment is to be affirmed, we have no occasion to consider the motion to dismiss the appeal.
The motion to dismiss the appeal is denied. The judgment is affirmed.
1. 42 U.S.C.A. §§ 1409–1411, 1415(7) and 1951 Supp.Pamphlet.
2. Stat.1938, Ex.Sess., p. 9, 2 Deering's Gen.Laws, Act 3483.
3. Stat.1938, Ex.Sess., p. 2, 2 Deering's Gen.Laws, Act 3484.
4. Stat.1945, p. 1450, § 8(b), 2 Deering's Gen.Laws (1949 Supp.), Act 3483, § 8(b).
5. Stat.1938, Ex.Sess., pp. 14–16, § 8, 2 Deering's Gen.Laws, Act 3483, § 8.
6. Stat.1938, Ex.Sess., p. 18, § 13, 2 Deering's Gen.Laws, Act 3483, § 13.
7. Stat.1947, ch. 807, amended by Stat.1947, chs. 249, 868, 869, 2 Deering's Gen.Laws, Act 5211 (1949 Supp.). Section 73 reads: ‘Whenever the legislative boyd of the city or county shall have adopted a master plan for the city or county, or for any major section or district thereof, no road, street, highway, square, park or other public way, ground or open space shall be acquired by dedication or otherwise, and no road, street, highway or public way shall be closed or abandoned, and no public building or structure shall be constructed or authorized in the area for which such master plan shall have been adopted by the legislative body, until the location, character and extent thereof shall have been submitted to and shall have been reported upon by the planning commission. If the authorization, acquisition, financing or acceptance of such road, street, highway, square, park or other public way, ground or open space, or the construction or authorization of such public building or structure, be vested by law or charter provisions in some governmental body, commission or board other than the legislative body of such city or county, then such other governmental body, commission or board having such jurisdiction shall first submit to the planning commission the location, character and extent of such proposed public improvement for report thereon. In the event that the planning commission shall disapprove the same, its disapproval may be overruled by such other governmental body, board or commission only by a vote of not less than two-thirds of its entire membership. Failure of the planning commission to act within 40 days, or such longer period as may be designated by the legislative body or such other governmental body, board or commission, after the date of the official submission of any matter to it by the legislative body or by such other governmental body, board or commission, shall be deemed to be approval of such matter by the planning commission.’
8. Stat.1938, Ex.Sess., p. 2, § 4(d, e), 2 Deering's Gen.Laws, Act 3484, § 4(d, e).
9. Stat.1938, Ex.Sess., p. 5, § 7, 2 Deering's Gen.Laws, Act 3484, § 7.
10. 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:‘(a) The acquisition, establishing, opening, widening, narrowing, straightening, abandoning or vacating of any public street, road, highway, alley, square, park, playground, airport, public building site, or other public way, ground or open space;‘(b) The location and appearance of any bridge, viaduct, subway, tunnel or elevated roadway for the use of pedestrian or vehicular traffic or any public building;‘(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.‘The Director of Planning shall make such investigation relative to such proposed ordinance, order or resolution as the City Planning Commission may require, and shall file his report thereon with the Commission.’ Stat.1941, ch. 97, pp. 3487, 3497.
11. Housing Authority v. Dockweiler, 14 Cal.2d 437, 94 P.2d 794.
12. 42 U.S.C.A. § 1402(5), 1951 Supp.Pamphlet.
13. See Housing Authority v. Forbes, 51 Cal.App.2d 1, 124 P.2d 194.
14. Stat.1938, Ex.Sess., p. 11, § 3(i), 2 Deering's Gen.Laws, Act 3483, § 3(i), 1949 Supp.
15. 42 U.S.C.A. § 1415(7), 1951 Supp.Pamphlet.
16. Stat.1938, Ex.Sess., p. 16, § 8, 2 Deering's Gen.Laws, Act 3483, § 8. Section 24 reads: ‘In so far as the provisions of this act are inconsistent with the provisions of any other law, the provisions of this act shall be controlling.’
17. In the present case approval was by ordinance. An ordinance is the equivalent of a resolution. Govt.Code, § 50020; Hellman v. Shoulters, 114 Cal. 136, 157, 44 P. 915, 45 P. 1057; City of Los Angeles v. Waldron, 65 Cal. 283, 285, 3 P. 890.
18. Housing Authority v. Superior Court, 35 Cal.2d 550, 559, 219 P.2d 457; State ex rel. Great Falls Housing Authority v. City of Great Falls, 110 Mont. 318, 100 P.2d 915, 920–922. See, also, Southern California Roads Co. v. McGuire, 2 Cal.2d 115, 121–126, 39 P.2d 412; In re Means, 14 Cal.2d 254, 257–259, 93 P.2d 105, 123 A.L.R. 1378; Department of Water and Power v. Inyo Chemical Co., 16 Cal.2d 744, 753–754, 108 P.2d 410; Eastlick v. City of Los Angeles, 29 Cal.2d 661, 664–668, 177 P.2d 558, 170 A.L.R. 225.
19. Simpson v. Hite, 36 Cal.2d 125, 129–134, 222 P.2d 225.
20. Stat.1938, Ex.Sess., p. 18, § 13, 2 Deering's Gen.Laws, Act 3483, § 13.
21. Stat.1938, Ex.Sess., p. 3, § 4(d), 2 Deering's Gen.Laws, Act 3484, § 4(d).
22. McNulty v. Owens, 188 S.C. 377, 199 S.E. 425, 430; McLaughlin v. Housing Authority of City of Las Vegas, Nev., 227 P.2d 206, 211.
23. Los Angeles Ord. 90500, § 12.24, B. 8. See Essick v. City of Los Angeles, 34 Cal.2d 614, 213 P.2d 492.
24. Rev. & Tax.Cole, § 3791 et seq.; Charter City of Los Angeles, § 2, St.1925, p. 1028.
25. Stat.1938, Ex.Sess., p. 3, § 4(a), 2 Deering's Gen.Laws, Act 3484, § 4(a).
SHINN, P. J., and PARKER WOOD, JJ., concur.