TUSTIN HEIGHTS ASSOCIATION, T. Cecil Ostrander, and F. N. Clark, Petitioners and Appellants, v. BOARD OF SUPERVISORS OF COUNTY OF ORANGE et al., Respondent.*
The respondent Board of Supervisors enacted a land use plan for Orange County entitled ‘The Districting Ordinance’. The respondent, The Roman Catholic Archbishop of Los Angeles, petitioned to Orange County Planning Commission to permit the establishment of a church and elementary parochial school in the 100–E4 Small Estates District. After hearings, the Planning Commission recommended denial of the application on the grounds that (1) the site was not large enough to take care of students under customary state standards and also provide adequate parking space; (2) that ‘Material detriment or injury to the neighborhood will result from issuance of this permit.’
After disapproval by the Planning Commission, the matter was submitted to the Board of Supervisors, and the Board held a hearing on May 22, 1957. On that date the Board of Supervisors heard the evidence submitted and closed the hearing with a motion to reach a decision on the application on Wednesday, May 29, 1957.
On May 29, 1957, the Board of Supervisors met, and without reopening the hearings the applicant proposed to amend the application by changing the location and number of the access roads, the size, type, number and location of the buildings, the size and location of the parking area, the size and location of the playground area and by the addition of a second parcel of real property. No formal amended application was filed either with the Planning Commission or the Board of Supervisors. The matter was continued to June 5, 1957, on which date the Board of Supervisors, without reopening the hearing, allowed the respondent applicant to file an amended plot plan and verbally amend the original application to conform to the amended plot plan. Neither the amended plot plan nor the amended application was referred to the Planning Commission. The Board of Supervisors authorized the issuance of the conditional permit on the basis of the proposed amended application and the amended plot plan.
The petitioners, T. Cecil Ostrander and F. N. Clark, are residents and property owners residing in the County of Orange and in the immediate vicinity of the property to which the conditional permit in controversy applies. Both of said petitioners, T. Cecil Ostrander and F. N. Clark, are members of the Board of Directors of petitioner, Tustin Heights Association, which is an unincorporated association. Its members are residents and property owners in the area in which the property in question is located, which is within the 100–E4 Small Estates District. Petitioners filed their petition on the basis of a representative suit on behalf of the members of the Association. They sought a writ of mandate requiring the Board of Supervisors, collectively and individually, to vacate and set aside the order of the Board of Supervisors granting the conditional permit. The petition further requested that a writ of mandate issue against C. W. Donohue, Orange County Building Superintendent of Building and Safety, to refrain from in any manner issuing a construction permit for the construction of the church and school requested in the conditional permit, and if a permit had been issued that it be revoked and rendered null and void.
This is an appeal by the petitioners, Tustin Heights Association, by Cecil Ostrander and F. N. Clark, individually and on behalf of the members of said association, from the judgment on demurrer after the demurrer of the respondents to the second amended petition was sustained without leave to amend.
This action is concerned with four sections of the zoning ordinance pertaining to the area in which the respondent, The Roman Catholic Bishop of Los Angeles, proposed to establish a church and an elementary parochial school. Section 9.2 E4 entitled ‘Small Estates' District Regulations, provides, insofar as pertinent, as follows:
‘A. Uses Permitted: * * *
‘7. The following additional uses, subject to the issuance of Conditional Permits therefor, as prescribed in Section 19: * * *
‘b. Churches, museums and libraries.
‘C. Schools and colleges.’
Thus conditional permits for the use of churches and schools may be issued pursuant to the ordinance, but only under the conditions provided by section 19. The applicable subsections of section 19 provide:
‘Section 19. Conditional Permits and Variance Permits.
‘A. Conditional Permits:
‘The Board of Supervisors, after receipt of the report and the recommendation of the Planning Commission as hereinafter in this section provided shall have the power to authorize the issuance of conditional permits by the Building Inspector for specified types of uses and building in the foregoing Districts, as provided in the use regulations of such districts, under conditions which will preserve the integrity and character of the district, the utility and value of adjacent property and the general welfare of the neighborhood. Minimum conditions therefor are specifically as follows, * * *.
‘7. Churches, museums and libraries, upon condition that the location and building and plot plans be approved by the Planning Commission.
‘8. Schools, colleges, public playgrounds and athletic fields upon the following conditions:
‘a. An area adequate in the judgment of the Planning Commission be provided to reduce possibility of injury to adjoining residential properties.
‘b. Building and plot plans be approved by the Planning Commission.
‘c. The location of the school site be approved by the Planning Commission.’
This section standing alone requires the approval of the Planning Commission as to the particular uses covered by subdivisions 7 and 8 of section 19–A. Such approval is specifically made a ‘minimum condition’ by the wording of division A of section 19. The trial court held that subdivision 19–A should not be interpreted independently but should be construed with section 19–B in determining whether the Board of Supervisors has the authority to grant a conditional permit without the approval of the Planning Commission as required by subdivisions 7 and 8 of section 19–A. Section 19–B, which the trial court held to be controlling, reads as follows:
‘B. Variance permits:
‘The Board of Supervisors, after receipt of the report and recommendation of the Planning Commission as hereinafter in this section provided, shall have the power to grant variances to the height, yard, area and use regulations of this ordinance and authorize the issuance of Variance Permits therefor by the Building Inspector, in cases where practical difficulty, unnecessary hardships or results inconsistent with the general purpose and intent of this ordinance occur through strict application of such regulations and under such conditions as said Board may deem necessary to assure that the General purpose and intent of this ordinance will be observed, public safety and welfare secured, and substantial justice done.’
Subsection B clearly vests in the Board of Supervisors the authority to grant a variance when the conditions enumerated therein are shown to exist. There is nothing in Section 19–B requiring a favorable recommendation by the Planning Commission as a prerequisite to granting a variance.
If section 19–B can be said to be applicable to section 19–A then the recommendation of the Planning Commission referred to in 19–A is unnecessary. However, section 19–A concerns Conditional Permits and 19–B concerns Variances and they do not complement one another nor are they interchangeable. The regulations and restrictions concerning each type of zoning are separately stated in the ordinance. No provision of the ordinance has been pointed out by either party specifically making sections 19–A and 19–B interdependent and our review of the ordinance has disclosed none. From our examination of the whole ordinance these sections do not appear to be interdependent. The distinction between a conditional permit and a variance is noted in Essick v. City of Los Angeles, 34 Cal.2d 614, at page 623, 213 P.2d 492, at page 498, wherein the court said:
‘Aside from the difference in language between the variance provisions of the charter and the conditional use provisions of the Zoning Plan, which indicates the difference in character of the purposes sought to be accomplished, the case of Johnston v. Board of Supervisors (1947), supra, 31 Cal.2d 66, 73, 187 P.2d 686, recognizes that a ‘use permit’ and a ‘variance’ are not the same and at least suggests that the granting of the latter involves a ‘broader power’ than does the granting of a use permit. Also, Wheeler v. Gregg (1949), supra, 90 Cal.App.2d 348 , 203 P.2d 37, makes the distinction with respect to the same Los Angeles ordinance which we are considering here. (See also, Thomson v. Tafel (1949), 309 Ky. 753, 218 S.W.2d 977, 981; Illinois Bell Telephone Co. v. Fox (1949), 402 Ill. 617, 85 N.E.2d 43, 50.)'
The respondents argue that the Board of Supervisors has the power to issue a conditional permit regardless of the recommendation of the Planning Commission and without referring the amended petition back to the Planning Commission because ultimate authority rests in the Board. In essence their argument is that the powers delegated to the Planning Commission are advisory in nature and simply amount to a delegation of authority to an inferior body by a superior body, and that the superior body is the final repository of power in that area of government. Thus they contend the board is not limited to the power to approve or refuse to approve the recommendation of the Planning Commission but has the power to make an independent decision. This proposition was advanced cogently and forcefully in the dissenting opinion in Johnston v. Board of Supervisors, supra, but that theory was rejected by the majority of the court.
Even though Section 19–A concerning conditional permits and 19–B concerning variances were to be construed together, the demurrer in this case should not have been sustained without leave to amend. The Planning Commission recommended to the Board of Supervisors that they deny the permit. Thereafter, on May 22, 1957, the Board of Supervisors held a public meeting and the matter was taken under submission. On May 29, 1957, respondent church amended the application by changing the locations of roads, adding additional property to the site, changing the number and locations of the buildings and the size and location of the parking area and of the playground area. The matter was continued to June 5, 1957, at which time the board made its minute order approving the granting of the permit in accordance with the amended application. The amended application was not referred to the Planning Commission after the amendments were made. Section 19–C of the ordinance specifies the procedure to be followed when an application for either a conditional permit or a variance is amended and reads as follows:
‘C. Procedure—Conditional Permits and Variance Permits:
‘Application for a Conditional Permit or a Variance Permit shall be made to the Planning Commission. The Planning Commission shall prescribe the form, content and manner of preparing and submitting any application provided for in this section * * *.
‘9. The Board of Supervisors after receipt of the report and recommendation of the Planning Commission may grant amendment of any Conditional Permit or Variance Permit and authorize the issuance of an Amended Conditional Permit or Amended Variance Permit by the County Building Inspector under the following provisions: * * *.
‘e. That the application for such amendment shall be subject to the same requirements as to filing of plot plans and related information as was required in filing application for the original permit.’
Thus when an application, whether it be for a conditional permit or a variance, is amended, the application as amended must be referred to the Planning Commission in accordance with 19–C 9–e. An allegation raising the question of procedure as an issue is properly pleaded in the petition. Thus the question of whether or not the board complied with the procedure specified in the ordinance is an issue regardless of whether or not the Board of Supervisors has the authority to grant either a conditional permit or a variance contrary to the recommendation of the Planning Commission. The Board of Supervisors is bound by the provisions of its own ordinance (Johnston v. Board of Supervisors, 31 Cal.2d 66, at page 76, 187 P.2d 686, at page 692).
Counsel for the respondent, The Roman Catholic Archbishop of Los Angeles, argues that the zoning ordinance violates Article I, Section 4 of the California Constitution and the First and Fourteenth Amendments to the United States Constitution in that it is an interference with the right to the free exercise of religion and education. These arguments were presented in the case of Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. City of Porterville, 90 Cal.App.2d 656, 203 P.2d 823, construing a zoning ordinance which prohibited the building of a church in an area zoned for single family dwellings. In answer to the contention that the zoning ordinance interfered with religious worship the court held that the enactment of zoning ordinances is a valid exercise of the police power of the state, the purpose of which is to promote the public health, safety, morals and general welfare. The court specifically held that zoning ordinances do not offend the constitutional right of freedom of religious worship in the following language at page 660 of 90 Cal.App.2d, at page 825 of 203 P.2d:
‘We find no merit in plaintiff's contention that the application of the ordinance to the plaintiff results in an unwarranted restriction of religious worship. The petitioner is not a congregation, but holds its property as a corporation sole, the existence of which depends upon the laws of the State. Having such right from the State, the enjoyment of the property is subject to reasonable regulations. The denial of a building permit did not prohibit anyone from religious worship and there is nothing in the record before us to indicate that the church building could not be erected if located in the area zoned for that purpose.’
The judgment is reversed.
STONE, Justice pro tem.
MUSSELL, Acting P. J., and SHEPARD, J., concur.