ASSOCIATED HOME BUILDERS OF GREATER EASTBAY INC v. CITY OF LIVERMORE

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Court of Appeal, First District, Division 4, California.

ASSOCIATED HOME BUILDERS OF the GREATER EASTBAY, INC., a California corporation, individually and for the benefit of all its members, Plaintiff and Respondent, v. CITY OF LIVERMORE, a municipal corporation, and all Councilmen of the City of Livermore, consisting of Clyde Taylor, et al., Defendants and Appellants.

Civ. 33383.

Decided: September 10, 1974

Robert C. Burnstein, Oakland, for plaintiff and respondent. Maurice Engel, Hayward, for defendants and appellants.

This is an appeal from a decision of the Superior Court of Alameda County, enjoining and restraining appellants from enforcing an initiative ordinance enacted by the citizens of the City of Livermore.

The Associated Home Builders of the Greater Eastbay brought an action against the City of Livermore and the councilmen of that city, seeking to have the initiative ordinance entitled ‘Initiative Ordinance re Building Permits' declared unconstitutional, and seeking to enjoin the city, its officials and its employees from enforcing the provisions of that ordinance.1

Appellants, City of Livermore, et al., contend that the trial court erred when it found the initiative in question to be a zoning ordinance and thus invalid as enacted through the initiative process.

Assessment of this issue must begin with an analysis of Hurst v. City of Burlingame, 207 Cal. 134, 277 P. 308; Laguna Beach Taxpayers' Assn. v. City Council, 187 Cal.App.2d 412, 9 Cal.Rptr. 775, and Taschner v. City Council, 31 Cal.App.3d 48, 107 Cal.Rptr. 214.

Both parties accept the fact the Hurst v. City of Burlingame, Laguna Beach Taxpayers' Assn. v. City Council, and Taschner v. City Council, prohibited the enacting of zoning ordinances by the initiative process.

Hurst v. City of Burlingame, supra, struck down a comprehensive zoning ordinance enacted by a general law city2 through the initiative process. The court reasoned that (1) a general law city cannot enact a zoning ordinance by the initiative process because the power to zone is conferred upon the legislative body of the city by statute. This statute prescribes the method for the adoption of a zoning ordinance. This method is therefore the measure of the power to enact zoning measures. (2) Since a zoning ordinance may seriously affect property rights, compliance with statutory notice and hearing requirement is necessary in order to satisfy procedural due process. ‘The initiative law and the zoning law are hopelessly inconsistent and in conflict as to the manner of the preparation and adoption of a zoning ordinance.’ (Supra, at p. 141, 277 P. at p. 311.)

Laguna Beach Taxpayers' Assn. v. City Council, supra, 187 Cal.App.2d 412, 9 Cal.Rptr. 775, involved initiatives which proposed the adoption and implementation of architectural policy for future buildings and which regulated the height of buildings. The court, citing Hurst, held that both initiatives were zoning ordinances within the purview of section 65800 of the Government Code and could only be adopted by the method prescribed by the State Zoning Law.

Appellant in Laguna Beach contended, as appellants contend here. That both initiatives were not zoning regulations of the type subject to the restrictive method of adoption imposed by the statute conferring authority on the city to enact zoning legislation and for that reason could be adopted through the initiative process. (Supra, 31 Cal.App.3d at p. 415, 107 Cal.Rptr. 214.)

The court answered this contention as follows: ‘The initiative architectural policy ordinance involved in this case proposes a policy that all future buildings in the city should conform to a type of architecture to be adopted and enforced through appropriate legislation. Appellants contend that the subject of this ordinance is not within the purview of Section 65800 of the Government Code. We conclude to the contrary. An architectural policy very conceivably could regulate the use of a building by requiring conformance to a design which, as a practical matter, would limit its use to or prevent its use for a specific purpose. In like manner, such a policy readily could be used to regulate the ‘location, height, bulk, number of stories, and size of buildings.’' (Laguna Beach Taxpayers' Assn. v. City Council, supra, 187 Cal.App.2d at pp. 415–416, 9 Cal.Rptr. at p. 777.)

In Laguna Beach, the proponents of the initiative also contended that former Government Code section 65807 provided authority for the enactment of the ordinance. Section 65807 then provided: ‘Except as otherwise provided in this article any amendment to a zoning ordinance may be initiated and adopted as other ordinances are initiated and adopted.’ Appellants in the case at bar, rely on section 658533 for a similar argument.4 The court in Laguna Beach concluded that the proposed ordinance fell within the ‘[e]xcept as otherwise provided’ clause of section 65807 and could only be adopted by following procedures prescribed for the amendment of a zoning ordinance. (Supra, at pp. 417–418, 9 Cal.Rptr. 775.)

It is clear then that appellants at bar, cannot rely on section 65853 of the Government Code if the initiative in question is a zoning regulation of the type subject to the restrictive method of adoption imposed by statute conferring authority on the city to enact zoning legislation.

Taschner v. City Council, supra, 31 Cal.App.3d 48, 107 Cal.Rptr. 214, involved the question whether a general law city could enact a building height limit ordinance through the initiative process. The city council in Taschner contended that the building height limit initiative was not a zoning ordinance and hence its enactment was not subject to the procedural requirements of the State Zoning Law.

Taschner recognizes the distinction that appellants are trying to make in the case at bar. ‘We recognize . . . that a valid distinction exists between an ordinance regulating land use and one enacted pursuant to a city's general police power to protect public health, safety and morals. Thus an ordinance regulating a business not a nuisance per se but which may become a nuisance may be enacted without complying with the procedural requirements of the State Zoning Law. (City of Escondido v. Desert Outdoor Advertising, Inc., 8 Cal.3d 785, 106 Cal.Rptr. 172, 505 P.2d 1012; Castiglione v. County of San Diego, 15 Cal.App.3d 880, 883–885, 93 Cal.Rptr. 499.)’ (Taschner v. City Council, supra, 31 Cal.App.3d at p. 59, 107 Cal.Rptr. at p. 224.)

The court, however, concluded that the ordinance in question was a land use regulation of a type specifically covered by the State Zoning Law. (§ 65850.) (Supra, 31 Cal.App.3d at p. 60, 107 Cal.Rptr. 214.)

The respondents in Taschner urged that Hurst and its progeny were no longer viable because the Legislature indicated through its enactment of section 658005 and 658016 that the State Zoning Law was not designed to forbid local zoning legislation by initiative. (Supra, 31 Cal.App.3d at p. 61, 107 Cal.Rptr. 214.)

Appellants herein, make the very same argument. Citing City of Sausalito v. County of Marin, 12 Cal.App.3d 550, 557–558, 90Cal.Rptr. 843, and Bayless v. Limber, 26 Cal.App.3d 463, 102 Cal.Rptr. 647, they contend that the rationale of both they contend that the rationale of both Hurst and Laguna Beach was vitiated by the enactment of section 65801.

The Taschner case thoroughly answers the appellants' contentions.

Relying on section 65853 of the Government Code, the court concluded that sections 65800 and 65801 do not permit local zoning legislation through the initiative process. ‘While section 65800 indicates that the Legislature did not intend to interfere with municipal home rule in zoning matters, it does at the same time declare in effect that local zoning powers must be exercised in conformity with the minimum standards prescribed by state law.’ (Taschner v. City Council, supra, 31 Cal.App.3d at p. 63, 107 Cal.Rptr. at 227.)

Respondent in Taschner also relied on Bayless v. Limber, supra, 26 Cal.App.3d 463, 102 Cal.Rptr. 647, arguing that the decision therein is inconsistent with the Hurst due process rationale.

Bayless v. Limber does not deal with the threshold question presented here, whether the initiative a zoning ordinance. Furthermore, the court in Bayless v. Limber specifically held that the facts involved therein were clearly distinguishable from those of Hurst and Laguna Beach.

The court in Bayless v. Limber in a footnote, did disagree with the Hurst and Laguna Beach decisions, arguing that the enactment of section 65801 of the Government Code vitiated the rationale of both these cases. (Bayless v. Limber, supra, 26 Cal.App.3d at p. 469, fn. 5, 102 Cal.Rptr. 647.) But as Taschner ponts out, this reasoning is without merit.

Both Scott v. City of Indian Wells, 6 Cal.3d 541, 99 Cal.Rptr. 745, 492 P.2d 1137, and People's Lobby, Inc. v. Board of Supervisors, 30 Cal.App.3d 869, 106 Cal.Rptr. 666, support the trial court's decision.

In Scott, plaintiffs, whose property lay outside the municipal boundaries of Indian Wells but adjacent to the property for which city zoning was sought, sought a declaratory judgment voiding the city's grant of a conditional use permit to construct a large planned development on land lying just within the city limits. Plaintiffs alleged that the city failed to give notice to the adjacent land owners and thus violated their due process.

In overruling the lower court's sustaining of a demurrer, the Supreme Court of California stressed the need of notice and hearing in zoning cases. The initiative process would deprive respondents of such due process.

In People's Lobby, Inc. v. Board of Supervisors, supra, 30 Cal.App.3d 869, 106 Cal.Rptr. 666, the court's denial of a writ of mandate which would have compelled the Santa Cruz County Clerk to place upon the ballot an initiative measure restricting use of ocean front property.

In holding that zoning may not be adopted through the initiative process, the court noted that ‘[i]nitiatives are limited generally to the kinds of measures the entity to which they are addressed can adopt.’ (Supra, at p. 872, 106 Cal.Rptr. at p. 669.) Since a local government cannot adopt a zoning ordinance without notice and hearing, ‘initiatives in the field of zoning are invalid.’ (Supra, at p. 872, 106 Cal.Rptr. at p. 669.) The court refused to change the law, stating that: ‘Though we recognize that the power of the initiative process must be liberally construed it is questionable whether environmental protection would be advanced by a change in the Hurst rule. Zoning proposals should have the benefit of public hearings and professional study by the local government's planning staff so as to integrate the proposal with the other zoning ordinances and particularly the city or county land use master plan. Overall planning would be seriously crippled if the initiative process could be used in this field.’ (People's Lobby, Inc. v. Board of Supervisors, supra, 30 Cal.App.3d at p. 873, 106 Cal.Rptr. at p. 669.)

Citing City of Escondido v. Desert Outdoor Advertising, Inc., 8 Cal.3d 785; 106 Cal.Rptr. 172, 505 P.2d 1012, appellants contend that the initiative in question does not substantially interfere with land use. In that case the court upheld a general law city ordinance regulating placement of billboards and signs along freeways against an attack upon its validity for noncompliance with State Zoning Law procedures. In concluding that the city's ordinance was authorized by the provisions of section 38774 of the Government Code, the court stated the following: ‘We emphasize that ordinarily municipalities must follow statutory or charter zoning procedures strictly whenever they propose a substantial interference with land use, for such procedures are constitutionally mandated to insure that private property owners receive due process of law. (See Scott v. City of Indian Wells, 6 Cal.3d 541, 549, 99 Cal.Rptr. 745, 492 P.2d 1137; Hurst v. City of Burlingame, 207 Cal. 134, 141, 277 P. 308; 56 Cal.Jur.2d Zoning, § 109; McQuillin, Municipal Corporations, §§ 25.40, 25.46.) In the instant case, however, defendants have failed to establish any such substantial interference.’ (City of Escondido v. Desert Outdoor Advertising, Inc., supra, 8 Cal.3d at p. 790, 106 Cal.Rptr. at p. 176, 505 P.2d at p. 1016.)

In the present case, a very substantial interference with land use is apparent from the provisions of the initiative. A total regulation of building permits cannot be compared to billboard regulation. (See People's Lobby, Inc., supra, 30 Cal.App.3d at p. 874, 106 Cal.Rptr. 666.)

As stated above, appellants contend that the initiative in question is not a zoning ordinance within the meaning of section 65850 of the Government Code, and thus, was a proper exercise of the police power. The thrust of appellants' argument is that this initiative is not directed toward zoning concepts as found within the State Zoning Law, but involves the right of a municipality to issue a building permit which is a valid exercise of the police power.

Though appellants are correct when they state that ‘[t]here is a dichotomy to be recognized between the exercise of the zoning power, as such, and the right of the municipality to issue a building permit,’ they forget that the right to issue or not to issue a building permit depends on the zoning ordinance. Furthermore, it is clear that the zoning function also involves the police power. (Euclid v. Ambler Co., 272 U.S. 365, 47 S.Ct. 144, 71 L.Ed. 303.) That the ordinance in question involves the police power does not mean that the ordinance in question is not a zoning ordinance.

In order to avoid the Hurst and Laguna Beach decisions, appellants claim that the initiative in question is not a zoning law. This claim is immaterial because the initiative is admittedly a land use control measure. (People's Lobby, Inc. v. Board of Supervisors, supra, 30 Cal.App.3d at p. 873, 106 Cal.Rptr. 666.) The initiative provides that the intent of the initiative is to control residential building permits. Appellants assert that the initiative seeks certain preconditions before the right to use land may be exercised.

In People's Lobby, Inc. v. Board of Supervisors, supra, the court, relying on Scott v. City of Indian Wells, supra, 6 Cal.3d 541, 99 Cal.Rptr. 745, 492 P.2d 1137, held that due process aside from section 65850 or section 65853 of the Government Code requires compliance with State Zoning Law procedures where a land use control measure is involved. Scott v. City of Indian Wells held that the due process clause of the Fourteenth Amendment of the United States Constitution requires that an individual whose property is ‘affected by local land use controls' be given an opportunity for a hearing before he is deprived of any significant property interest. (Supra, at p. 549, 99 Cal.Rptr. at p. 749, 492 P.2d at p. 1141.)

‘To hold, under these circumstances, that defendant city may zone the land within its border without any concern for adjacent landowners would indeed ‘make a fetish out of invisible municipal boundary lines and a mockery of the principles of zoning.’ ‘[C]ommon sense and wise public policy . . . require an opportunity for property owners to be heard before ordinances which substantially affect their property rights are adopted. . . .’ (Kissinger v. City of Los Angeles (1958) 161 Cal.App.2d 454, 464, 327 P.2d 10, 17.) Indeed, the due process clause of the Fourteenth Amendment requires ‘at a minimum . . . that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing. . . .’ (Mullane v. Central Hanover Co. (1950) 339 U.S. 306, 313, 70 S.Ct. 652, 656, 657, 94 L.Ed. 865, 873.) Zoning does not deprive an adjacent landowner of his property, but it is clear that the individual's interest in his property is often affected by local land use controls, and the ‘root requirement’ of the due process clause is ‘that an individual be given an opportunity for a hearing before he is deprived of any significant property interest, except or extraordinary situations where some valid governmental interest . . . justifies postponing the hearing until after the event. . . .’ (Boddie v. Connecticut (1971) 401 U.S. 371, 379, 91 S.Ct. 780, 786, 28 L.ed.2d 113, 119.)' (Scott v. City of Indian Wells, supra, 6 Cal.3d at pp. 548–549, 99 Cal.Rptr. at p. 749, 492 P.2d at p. 114.) (Emphasis added.)

Both People's Lobby, Inc. and Taschner applied this reasoning to cases involving local land use control, without needing to discuss whether the initiatives in question were zoning ordinances pursuant to section 65850 of the Government Code.

The court in People's Lobby specifically stated that appellant's claim that the initiative involved therein was not a zoning law became immaterial under Scott v. City of Indian Wells, because the initiative was a land use control measure. ‘In the recent case of Scott v. City of Indian Wells (1972) 6 Cal.3d 541, 549, 99 Cal.Rptr. 745, 749, 492 P.2d 1137, 1141, the court held that the Due process Clause of the Fourteenth Amendment requires that an individual whose property is ‘affected by local land use controls' be given the opportunity for a hearing before he is deprived of any significant property interest. As the proposed initiative ordinance here unquestionably does seek to impose land use control and as there is no opportunity for hearing before it would become effective, the measure would clearly be invalid if adopted. Appellants admit that all of the provisions of the measure affect the use of land but claim that it is not a zoning law. This claim, however, becomes immaterial under Scott because it is admittedly a land use control measure.’ (People' Lobby, Inc., supra, 30 Cal.App.3d at p. 873, 106 Cal.Rptr. at p. 669.)

Fletcher v. Porter, 203 Cal.App.2d 313, 21 Cal.Rptr. 452, is inapplicable to the case at bar. In that case, the court upheld the use of the initiative method to enact an amendment to a zoning ordinance which redefined the powers and duties of the planning commission to adopt the provisions of the State Zoning Law respecting the procedure for the adoption of a master plan and which imposed a limited moratorium on rezoning. The court pointed out that since the proposed moratorium did not interfere with land use its enactment by the initiative process would not violate due process.

The other contentions of the appellants need not be dealt with in light of the fact that it is clear that the trial court did not err when it held that the ordinance was invalid because the City of Livermore failed to comply with the requirements for the enacting of zoning ordinances as prescribed by applicable sections of the Government Code. Appellants' further contentions assume the validity of the ordinance.

The judgment is affirmed.

FOOTNOTES

1.  The initiative provides as follows:INITIATIVE ORDINANCE RE BUILDING PERMITS‘An ordinance to control residential building permits in the City of Livermore.BE IT ORDAINED BY THE PEOPLE OF THE CITY OF LIVERMORE:A. The people of the City of Livermore hereby find and declare that it is in the best interest of the City in order to protect the health, safety, and general welfare of the citizens of the city, to control residential building permits in the said city. Residential building permits include single-family residential, multiple residential, and trailer court building permits within the meaning of the City Code of Livermore and the General Plan of Livermore. Additionally, it is the purpose of this initiative measure to contribute to the solution of air pollution in the city of Livermore.B. The specific reasons for the proposed petition are that the undersigned believe that the resulting impact from issuing residential building permits at the current rate results in the following problems mentioned below. Therefore no further residential building permits are to be issued by the said city until satisfactory solutions, as determined in the standards set forth, exist to all the following problems:1. EDUCATIONAL FACILITIES—No double sessions in the schools nor overcrowded classrooms as determined by the California Education Code.2. SEWAGE—The sewage treatment facilities and capacities meet the standards set by the Regional Water Quality Control Board.3. WATER SUPPLY—No rationing of water with respect to human consumption or irrigation and adequate water reserves for fire protection exist.C. This ordinance may only be amended or repealed by the voters at a regular municipal election.D. If any portion of this ordinance is declared invalid the remaining portions are to be considered valid.

2.  Both parties agree that the City of Livermore is a general law city.

3.  ‘A zoning ordinance or an amendment to a zoning ordinance. Which amendment changes any property from one zone to another or imposes any regulation listed in Section 65850 not theretofore imposed or removes or modifies any such regulation theretofore imposed shall be adopted in the manner set forth in Sections 65854 to 65857, inclusive. Any other amendment to a zoning ordinance may be adopted ax other ordinances are adopted.’ (Emphasis added.)

4.  The 1965 revision of the State Zoning Law reenacted the substance of former sections 65807 and 65804 into section 65853. (Taschner v. City Council, supra, 31 Cal.App.3d at p. 59, 107 Cal.Rptr. 214.)

5.  Section 65800 provided that: ‘It is the purpose of this chapter to provide for the adoption and administration of zoning laws. ordinances, rules and regulations by counties and cities, as well as to implement such general plan as may be in effect in any such county or city. The Legislature declares that in enacting this chapter it is its intention to provide only a minimum of limitation in order that counties and cities may exercise the maximum degree of control over local zoning matters.’

6.  Section 65801 provided that: ‘Formal rules of evidence or procedure which must be followed in court shall not be applied in zoning matters, except to the extent that a county or city may provide therefor. No action, inaction or recommendation regarding any zoning matter by any legislative body or any administrative body or official of any county or city shall be held void or invalid or be set aside by any court on the ground of the improper admission or rejection of evidence or by reason of any error, irregularity, informality, neglect or omission (hereinafter called ‘error’) as to any matter pertaining to petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals or any matters of procedure whatever, including, but limited to, those included in this section, unless after an examination of the entire case, including the evidence, the court shall be of the opinion that the error complained of was prejudicial, and that by reason of such error the party complaining or appealing sustained and suffered substantial injury, and that a different result would have been probable if such error had not occurred or existed. There shall be no presumption that error is prejudicial or that injury was done if error is shown.'

CALDECOTT, Presiding Justice.

RATTIGAN and CHRISTIAN, JJ., concur.