YOUNGBLOOD v. SANTA FE COMPANY

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

James H. YOUNGBLOOD ef al., Petitioners and Appellants, v. BOARD OF SUPERVISORS OF SAN DIEGO COUNTY, Defendants and Respondents; SANTA FE COMPANY et al., Real Parties in Interest and Respondents.

Civ. 14893.

Decided: July 12, 1977

Jonathan C. Gibson and Russell J. Clark, San Diego, for appellants. Gray, Cary, Ames & Frye and Brian L. Forbes, San Diego, as amicus curiae on behalf of appellants. Donald L. Clark, Acting County Counsel, and John J. McEvoy, Deputy County Counsel, San Diego, for respondents. Milch, Wolfsheimer & Wagner and James S. Milch, San Diego, for real parties in interest and respondents.

Petitioners (Youngblood) appeal from judgment of dismissal entered after the trial court sustained, without leave to amend, the general demurrer of the Board of Supervisors of San Diego County (Board) and the real party in interest (Santa Fe Company) to their amended petition for writ of mandate. The amended petition alleges two causes of action.

Youngblood, first, seeks a traditional writ of mandate (Code Civ.Proc. § 1085) alleging the Board disregarded a mandatory duty imposed by statute in refusing to rezone the Rancho del Dios area of San Diego County from A–4–1 (heavy agricultural use) to E–1–B (one dwelling unit per two-acre parcel) thereby conforming the zoning to the applicable San Dieguito Community (General) Plan. Youngblood cites Government Code section 65860(a), which states ‘. . . zoning ordinances shall be consistent with the general plan of the county . . .’ and Government Code section 65860(c), which requires, in the event a zoning ordinance becomes inconsistent with the general plan by reason of its amendment, that ‘. . . such zoning ordinance shall be amended within a reasonable time . . .’ so as to become consistent with the general plan as amended.

In the second cause of action, Youngblood charges the Board with abuse of discretion in refusing to rezone the Rancho del Dios area in conformity with the San Dieguito General (Community) Plan of September 5, 1967 and in approving the tentative subdivision map not conformable to the General Plan. They seek to compel the Board to hold further hearing to obtain compliance with Government Code section 65860, subsections (a) and (c).

In sustaining the demurrer without leave to amend, the trial court enigmatically concluded the ‘. . . Writ of Mandamus does not lie because the act is legislative and discretionary, . . ..’

We assess the sufficiency of Youngblood's petition against the general demurrer in light of these well-settled rules: The demurrer admits all material facts properly pleaded. Where the order sustains a demurrer without leave to amend, the allegations of the petition must be liberally construed to the end of attaining substantial justice among the parties. (King v. Central Bank (1977) 18 Cal.3d 840, 843, 135 Cal.Rptr. 771, 558 P.2d 857.)

Our principal inquiry is into the propriety of the trial court's sustaining the demurrer to the amended petition without leave to amend. To this end, it is appropriate and necessary to examine the facts alleged in the amended petition, Youngblood's proposed supplemental petition, and ‘Statement of Facts' filed in support of the demurrer on the premise the petition is amendable to state those facts. (Mobaldi v. Regents of University of California (1976) 55 Cal.App.3d 573, 585, 127 Cal.Rptr. 720.)

Petitioners, 61 in number, reside in the vicinity of Rancho Sante Fe and Rancho del Dios. They are the owners of single family residences, each situated on a building site ranging in size from two acres to 49.53 acres. Rancho del Dios is located generally adjacent to and east of Rancho Santa Fe in San Diego County and is composed of 217 acres.

In mid-1974 the Santa Fe Company filed its application with the County of San Diego for approval of a tentative subdivision plan for Rancho del Dios. They proposed to subdivide the 217 acre parcel into 131 lots with an average overall density of .60 housing units per acre. Certain of the lots were one acre in area. The zoning on the acreage was (and still is) A–4–1 and E–1. San Diego County Zoning Ordinance (article X, § 210) governing A–4–1 classification requires one acre minimum per lot and building site as does the E–1 classification (article X, § 165).

The County Planning Department staff reported its approval to the County Planning Commission of the tentative subdivision map subject, however, to some 40 conditions. The Commission approved the tentative map and found it:

‘. . . consistent with the San Dieguito General Plan because it proposes a density of 0.60 dwelling units per acre in an area designated on the Plan as Residential Low Density which permits up to 0.75 dwelling units per acre; and . . . the design or improvements of the proposed subdivision are consistent with the goals of the San Dieguito General Plan; and . . . the site is physically suitable for the Low Density Residential type of development because the proposed density is actually lower than the maximum allowed by the zone and the Plan . . ..’

On December 10, 1974, the Board of Supervisors, after open hearing, approved the tentative map with similar findings and subject again to conditions as set forth in the Planning Commission's recommendations.

One of the conditions imposed was that the Santa Fe Company file a request for zone change on a portion of the property from A–4–1 to E–1. A condition that Santa Fe Company file and have adopted by the Board, the specified zone change was considered by the Board and omitted. Pursuant to express conditions imposed, Santa Fe Company filed to rezone the property from A–4–1 to E–1.

Youngblood has consistently opposed Santa Fe's proposed subdivision of Rancho del Dios, the filing of the tentative map and the proposed rezoning. They have requested the Board to rezone the acreage to E–B–2 (one building site per 2 acre parcel).

The San Dieguito General Plan, in effect on the date of the Board's approval of the tentative map, was adopted by the Board on September 5, 1967. However, a long term study looking toward the amendment of the General Plan had been in process by the Board for some months before December 10, 1974.

Within four days (December 13, 1974) after the Board's approval of and finding of conformity of Santa Fe Company's tentative subdivision map with the General Plan, it held further hearing looking toward amendment of the San Dieguito General Plan. The study and hearings culminated in a Board meeting held December 31, 1974, where the San Dieguito General Plan was amended. The unit-per-acre density required on the 217 acres was changed from the previous standard of .75 dwelling units per acre to .50. Upon this change in the General Plan, the San Diego County Planning Commission withdrew its recommendation of change of zoning in the 217 acres from A–4–1 to E–1 and recommended no change.

The Board of Supervisors, at its April 24, 1975 meeting, followed the recommendation of the Planning Commission and denied the Santa Fe Company's request for a zone change. At this meeting, the Board also refused Youngblood's request to change the zoning to the 217 acres from A–4–1 to E–1–B (one unit per two-acre parcel). On October 22, 1975 (after the filing of this action) the Board approved Santa Fe Company's final subdivision map with the identical building unit density per acre, as in the tentative map. Out of this factual brew grow these contentions.

Youngblood contends (1) the Board violated its duty mandated by statute (Gov.Code § 65860) when it refused their request to rezone the area in accordance with the December 31, 1974 amendment to the San Dieguito General Plan; (2) the Board's approval of the tentative subdivision map on December 10, 1974 was illegal and void in that the Board was under the mistaken impression that the San Dieguito General (Community) Plan of 1967 called for a density of one dwelling unit per acre in the Rancho del Dios area and under the mistaken idea it was bound legally by the density provision of that plan; and (3) Youngblood also contends the Board, on October 24, 1975, in approving the final subdivision act, violated its statutory duty. It accepted a final map violative of the San Dieguito General Plan as amended December 31, 1974. These decisions violate Government Code sections 65860, 66452.4, 66452.5, 66473.5 and 66474.5, Youngblood asserts.

In sharp contrast, Santa Fe Company points to the tentative subdivision map as approved on December 10, 1974. It was ‘consistent’ with the then existing General Plan for that area (the San Dieguito General (Community) Plan of 1967). The conditions attached to the approval of the tentative map were complied with before the final map was approved. Further, they recite and rely upon the Board's then finding, as required by Government Code section 66473.51 the tentative map was ‘consistent’ with the General Plan then in effect and the land use proposed was compatible with the objectives of the Land Use Plan.

Santa Fe Company maintain their right to obtain approval of the final subdivision map is protected by Government Code section 66474.1 which provides:

‘A legislative body shall not deny approval of a final map . . . if it has previously approved a tentative map for the proposed subdivision and if it finds that the final map is in substantial compliance with the previously approved tentative map.’

They contend the December 31, 1974 amendment to the San Dieguito General Plan did not affect the validity of the filing of the tentative map nor could it thwart their right under Government Code section 66474.1 to file, and have accepted, their final map upon fulfillment of the conditions attached.

These respective contentions create, superficially at least, a conflict between the duties, the authority of a board of supervisors with respect to (1) the filing of subdivision maps, tentative and final, (2) the powers and duties of a board in the area of zoning and (3) their power and duty to enact a general plan of land use.

To resolve this apparent conflict certain fundamental rules of statutory construction must be kept in mind. Each of the statutes involved should be construed with reference to the whole system of law of which it is a part so that all may be harmonized and of effect; where separate codes, separate acts, are to be construed, they must be regarded as blending into each other and forming a single statute. (Tripp v. Swoap (1976) 17 Cal.3d 671, 679, 131 Cal.Rptr. 789, 552 P.2d 749; Select Base Material v. Board of Equal. (1959) 51 Cal.2d 640, 645, 335 P.2d 672.) They must be read together and so construed to give effect where possible to all the provisions thereof. (Pareses v. State Board of Prison Directors (1929) 208 Cal. 353, 355, 281 P. 394.)

With these interpretive rules in mind, we examine the statutes here involved. The Santa Fe Company relied upon Government Code section 66474.1, which requires the Board of Supervisors ‘shall not deny’ approval of a final map if it has previously approved a tentative map for the proposed subdivision and if it finds the final map is in substantial compliance with the ‘previously approved tentative map.’ The section is part of the California Subdivision Map Act (§ 66410 et seq., Gov.Code, formerly Bus. & Prof.Code § 11500 et seq.). The purpose and intent of the Map Act is to provide for regulation and control of design and improvement of subdivisions with proper consideration of their relationships to adjoining areas. (Pratt v. Adams (1964) 229 Cal.App.2d 602, 606, 40 Cal.Rptr. 505). The Map Act is clearly designed to restrict activities of the subdivider of land. (Keizer v. Adams (1970) 2 Cal.3d 976, 979, 88 Cal.Rptr. 183, 471 P.2d 983.) The authority of the Board of Supervisors with respect to approval of a subdivision map, tentative or final, derives from the Map Act itself. (Roney v. Board of Supervisors (1956) 138 Cal.App.2d 740, 743, 292 P.2d 529.)

The duties of the Board relating to the filing of subdivision maps are interrelated and subject to that independent legislative delegation of authority of the Board to control land use by zoning ordinances.

It was stated in Roney v. Board of Supervisors, supra, (1956) 138 Cal.App.2d 740, at page 743, 292 P.2d 529, at page 531:

‘The extent of the authority of the governing body [board of supervisors] in respect of approval of subdivision maps is set forth in the Business and Professions Code, sections 11500 et seq. (the Subdivision Map Act), but the master plan including the Zoning Ordinance of the county based on statutes of equal dignity with the Subdivision Map Act as set forth above, controls the uses to which the land may be put, and may exclude a subdivision entirely, if no constitutional rights be invaded . . ..’

The filing, the acceptance by the Board of Supervisors, of the tentative or final map does not estop or prohibit the county under its zoning powers from a change in land use. The acceptance of the subdivision map, tentative or final, does not determine the use to which the property shown on the map may be put. In Kappadahl v. Alcan Pacific Co. (1963) 222 Cal.App.2d 626 at 633, 35 Cal.Rptr. 354, at 358 it was argued:

‘Appellants contend that when the board of supervisors accepted the . . . subdivision map with Via Mallorca shown thereon as a cul-de-sac . . . the county became forever estopped from permitting the use of any of the lots or portions thereof for roadway purposes . . ..’

Answered the court:

‘The filing of a map showing streets, lots and blocks in no way prevents a county under its zoning power from changing the zoning uses nor from permitting a property owner to use his property for road purposes, provided, of course, he brings himself within the provisions of the applicable zoning ordinance.’ Kappadahl v. Alcan Pacific Co., supra, (1963) 222 Cal.App.2d 626 at 633, 35 Cal.Rptr. 354 at 358.

Further:

‘Even if the map did not show an easement, right of way or other interest in the land outstanding, it does not follow that the county is estopped or otherwise precluded by such recordation from exercising its zoning or planning functions.’ Kappadahl v. Alcan Pacific Co., supra, (1963) 222 Cal.App.2d 626 at 633, 35 Cal.Rptr. 354 at 359.

Great Western Sav. & Loan Assn. v. City of Los Angeles (1973) 31 Cal.App.3d 403, 410, 107 Cal.Rptr. 359, 363, involved a city council's duty to file a final map after adoption of the tentative map. It was stated:

‘It is clear that the governing body's function is administrative, ministerial and mandatory where the final tract map complies with the state and local laws and has complied with the conditions to the tentative tract map.’

The court further says, on page 413, 107 Cal.Rptr. on page 366:

‘We do not say that there is no instance in which the city council may act other than to accept or approve a final tract map, as for example where there is fraud or misrepresentation . . ..’

Thus the approval of the final map is but a ministerial act so long as the developer had complied with all the requisite conditions. This rule derives from the express language and directions of Government Code section 66474.1. The general rule does not resolve our specific problem.

People v. County of Kern (1974) 39 Cal.App.3d 830, 115 Cal.Rptr. 67, distinguishes Great Western Sav. & Loan Assn. v. City of Los Angeles, supra, (1973) 31 Cal.App.3d 403, 107 Cal.Rptr. 359, adding a further exception to the generalization that filing of the final map is mandatory if conditions attached to the tentative map approval are met. 39 Cal.App.3d at page 839, 115 Cal.Rptr. at page 73, footnote 7, it is stated:

‘The County has cited and relied on the case of Great Western Sav. & Loan Assn. v. City of Los Angeles, 31 Cal.App.3d 403 [107 Cal.Rptr. 359], where it was held that upon approval of the tentative subdivision map, the approval of the final map was but a ministerial act so long as the developer had complied with all of the requisite conditions. That case, however, is distinguishable in that there was no issue before the court as to compliance with the applicable zoning ordinance.’

Great Western Sav. & Loan Assn. v. City of Los Angeles, supra, (1973) 31 Cal.App.3d 403, 107 Cal.Rptr. 359, is further distinguishable. No conflict with the general plan was there present.

Santa Fe Company does not point to some specific right which they claim has vested by virtue of filing of the tentative map. The decision of the Board of Supervisors, in approving the tentative subdivision map, did not confer or create some fundamental vested right in the Santa Fe Company; nor does it appear that the decision of the Board of Supervisors affected a then existing ‘fundamental vested right’ of Santa Fe Company. (Cf. Friends of Lake Arrowhead v. Board of Supervisors (1974) 38 Cal.App.3d 497, 518, fn. 18, 113 Cal.Rptr. 539.) The concept of vested rights has no application where the subdivider has merely obtained the recordation of his tentative or final subdivision map. (Anderson v. City Council (1964) 229 Cal.App.2d 79, 88–89, 40 Cal.Rptr. 41.) The obtaining of building permits, substantial investment, are matters necessarily involved before anything approaching a vested right develops against future land use controls. To hold that the Board of Supervisors is estopped to perform its zoning function by the acceptance of a tentative or final map would defy express statutory authority. The zoning power is an independent power. (Gov. Code §§ 65800, et seq.) Gisler v. County of Madera (1974) 38 Cal.App.3d 303, 309, 112 Cal.Rptr. 919, 922, states:

“. . . The zoning and planning sphere does not derive from the proprietary interests of the county. It is an independent power. (Gov. Code, § 65800 et seq.) To hold that the county could be estopped from performing this function by the filing of a map would be to fly in the face of an express statutory grant. The simple act of filing a map would destroy the power of the planning commission, the zoning board and the local legislative body to ever permit the use of land for purposes other than these specified on the map, or zoned at the time the map was filed. The uses to which a parcel could be put would be irrevocably fixed for all time. [Citation.] There is no indication in the Subdivision Map Act (Bus. & Prof. Code, § 11500 et seq.) that such a result was intended by the Legislature.”

(See also People v. County of Kern, supra, (1974) 39 Cal.App.3d 830, 838, 115 Cal.Rptr. 67.) Only a rare and unusual circumstance will ever give rise to the doctrine of estoppel against the public agency to prevent the enforcement of its zoning duties. While this rule may result in harsh consequences to the developers who anticipate approval, the overriding interests of the public must prevail. (Pettitt v. City of Fresno (1973) 34 Cal.App.3d 813, 819–823, 110 Cal.Rptr. 262.) Unless the owner possesses all the necessary permits, the mere expenditure of funds or commencement of construction does not vest any right in the development.2 (See Russian Hill Improvement Assn. v. Board of Permit Appeals (1967) 66 Cal.2d 34, 40, 56 Cal.Rptr. 672, 423 P.2d 824.)

We conclude [there being no conflict with the zoning then in effect] the Board of Supervisors could, upon finding of conformity of the final map with the tentative map previously accepted, and upon the finding of fulfillment of conditions imposed upon approval and filing of the tentative map, direct the filing of the final map. However, the ‘ministerial’ duty to file the map when found conformable with the tentative map filed in no way affects, controls, derogates, or limits the powers of the Board of Supervisors to change the zoning in effect at the time the tentative map or the final map was filed. We repeat: Zoning is an independent power. The Board's act of filing the tentative and final map does not determine land use.

Our conclusion based upon the facts of this case that the ministerial duty of the Board to file a final map (Gov. Code § 66474.5) is consistent with, not an invasion of, authority of the Board of Supervisors in the zoning sphere, does not resolve the further question of whether the Board could lawfully approve the filing of a final map which is inconsistent with the general land use plan then in effect. We here face a different legislative directive. Government Code section 664743 provides that the legislative body of the county shall deny approval of a final or tentative map if it makes any of the following findings:

‘That the proposed map is not consistent with applicable general and specific plans.’

Section 66473.5 of the Government Code explicitly prohibits approval of a map unless the Board finds it is ‘consistent’ with the general plan.4

The tentative map as approved and filed was consistent and found to be consistent with the San Dieguito General Plan then in effect on December 10, 1974. However, intervening between the time of the tentative map and the final map filing has been the amendment to the General Plan which clearly and unequivocally makes the final map inconsistent with the General Plan applicable on the date of filing of the final map.

The ministerial duty imposed on the Board of Supervisors to file the final map must be juxtaposed with the express denial of authority to approve a final map if it is not consistent with the ‘applicable’ general plan. Santa Fe Company argues that the term ‘applicable’ means the general plan in effect at the filing of the tentative map, not the general plan as amended and in effect at the time when the final map approval is sought.

The resolution of the dilemma depends upon an interrelated third statute, Government Code section 65860.5 This section mandates consistency between the zoning ordinance and the county general plan. Subsection (c) of section 65860 explicitly requires when inconsistency between the zoning ordinance and a general plan occurs:

‘. . . by reason of amendment to such a plan or to any element of such a plan, such zoning ordinance shall be amended within a reasonable time so that it is consistent with the general plan as amended.’ (Emphasis added.)

From this trinity of laws reviewed, the Subdivision Map Act, zoning powers, and general plan authority, we discern the legislative intent. Internal consistency of these three bodies of law is mandated to the end

‘. . . that the proposed subdivision be judged with an eye toward future generations' land use requirements in recognition of the deleterious effects of premature land use characterization.’ (59 Ops. Cal. Atty. Gen. 129, 132.)

(See also Mountain Defense League v. Board of Supervisors (1977) 65 Cal.App.3d 723, 733, 135 Cal.Rptr. 588.) Pursuant to this requirement of internal consistency, zoning (Gov. Code § 65860) and subdivision maps (Gov. Code § 66473.5) must be or be made consistent with the applicable general plan. (Gov. Code § 65860, subs. (a) and (c).) The general plan stands first in order of priority in determining land use. The general plan is:

‘. . . a constitution for all future developments within the [county] city.’ (O'Loane v. O'Rourke (1965) 231 Cal.App.2d 774, 782, 42 Cal.Rptr. 283, 288.)

It must be obeyed.6

In contrast, the filing of the map whether tentative or final does not preclude the county, under its zoning powers, from changing zone uses. Absent vested rights, the board is not pre-empted by the recordation of the map from the exercise of its zoning or planning function. (Kappadahl v. Alcan Pacific Co., supra, (1973) 222 Cal.App.2d 626, 633, 35 Cal.Rptr. 354.)

In this legal labyrinth, we examine the Santa Fe contention. The Santa Fe Company would allow a ministerial duty which has no preclusive effect either as to zoning or planning functions to control the Board of Supervisors and to require the Board to ignore two specific prohibitions against acceptance of maps not consistent with the general plan. To follow Santa Fe Company's reasoning is to invite the developer to obtain a permit, to invest substantial funds and by this process to attempt to create vested rights in uses in a project on lands upon which the general plan then in effect disapproves. Such a rule circumvents, thwarts, the legislative intent. It negates, denies, the primacy of the general plan in directing future land use. The statutory intent of the integration of the three land use control statutes is disrupted or lost if the ‘applicable’ plan is determined to be a plan in force at some earlier time, some time other than that when the final map is presented for filing. The lowest order of the functions, a ministerial act is allowed to control the highest, the ‘constitution’ for future land development.

In Woodland Hills Residents Assn., Inc. v. City Council (1975) 44 Cal.App.3d 825, 118 Cal.Rptr. 856, after a tentative tract map had been filed, the city council adopted an amended ‘district plan’ which included the area covered by the approved tentative map. The appeal court in Woodland Hills adopted without discussion the premise that the amended plan, the plan adopted after the approval of the tentative map, was the operative plan, the plan to which the city council was required to look to make a finding of consistency pursuant to then Business and Professions Code section 11526(c). Support of this position was found in Selby Realty Co. v. City of San Buenaventura (1973) 10 Cal.3d 110, 109 Cal.Rptr. 799, 514 P.2d 111. Selby involved an application for a building permit denied for failure to comply with the ordinance which was in existence when the application was submitted. In the interim, between the denial of the permit and the appeal from the denial, the ordinance was amended. The Supreme Court held that even though the ordinance was amended after the permit was denied, the amended version was applicable. The Supreme Court reasoned:

‘It is the prevailing rule that a reviewing court will apply the law in existence at the time of its decision rather than at the time the permit was denied. [Citation.] The purpose of the rule is to prevent an appellate court from issuing orders for the construction of improvements contrary to presently existing legislative provisions.’ (Selby Realty Co. v. City of San Buenaventura, supra (1973) 10 Cal.3d 110, 125, 109 Cal.Rptr. 799, 809, 514 P.2d 111, 121.)

The reason compelling an appellate court not to issue orders for construction of improvements contrary to an amended ordinance apply with equal force to a board of supervisors where it has, after approving a tentative map, amended its general plan which creates a disconformity between the tentative map as approved and the amended general plan.

We conclude the Board of Supervisors disobeyed its statutory duty in accepting a final subdivision map not consistent with the ‘applicable’ general plan in effect at the time when the approval of the final map is sought.

The thrust of Youngblood's second contention is that the Board of Supervisors is required to amend its zoning ordinance to conform to the San Dieguito General Plan as amended on December 31, 1974. Government Code section 65860(a) requires that zoning ordinances be made consistent with the county general plan by January 1, 1974. However, section 65860(c) clearly requires when an inconsistency between the zoning and the general plan occurs ‘by reason of amendment to such a plan . . . [then] such zoning ordinance shall be amended within a reasonable time’ so that it will become consistent with the plan as amended. Government Code section 65860(b) authorizes an action in the superior court by any resident or property owner within the county to compel compliance with subdivision (a) of section 65860.

The language of subsection (b) does not lend itself to that same positive grant of authority to bring an action where the zoning ordinance becomes inconsistent by reason of an amendment to the general plan under (c). We therefore must look to Code of Civil Procedure section 1085 or 1094.5 to determine whether or not such a remedy is available to plaintiffs. Code of Civil Procedure section 1085 authorizes the issuance of traditional writ of mandamus to ‘compel the performance of an act which the law specially enjoins.’ Section 1094.5 of the Code of Civil Procedure provides for a review of administrative orders or decisions to determine whether there has been prejudicial abuse of discretion in the administrative action, whether abuse of discretion is established if the Board has not proceeded in the manner required by law or the order or decision of the board is not supported by findings or the findings by evidence. (Code Civ.Proc. § 1094.5.)

Government Code sections 65800–65912 make the zoning of property a discretionary act of the local legislative body. (See People v. County of Kern, supra, (1974) 39 Cal.App.3d 830, 837, 115 Cal.Rptr. 67.) It is generally held that the Board of Supervisors in the enacting of zoning ordinances exercises a governmental legislative function which cannot be forced—compelled, hastened. In Banville v. County of Los Angeles (1960) 180 Cal.App.2d 563, 570, 4 Cal.Rptr. 458, 461, it is stated:

‘Under our law the legislative body cannot be forced to enact or amend a zoning ordinance. The courts can declare an action of the Legislature unconstitutional where such action exceeds the limits of the Constitution, but the courts have no means and no power to avoid the effects of non-action. ‘The Legislature being the creative element in the system, its action cannot be quickened by other departments.’ (Myers v. English, 9 Cal. 341, 349.)'

Where, as here, a statute clearly defines the specific duties, the course of conduct the governing body must take, that course of conduct becomes mandatory and eliminates any element of discretion. (Elder v. Anderson (1962) 205 Cal.App.2d 326, 23 Cal.Rptr. 48; Drummey v. State Bd. of Funeral Directors (1939) 13 Cal.2d 75, 87 P.2d 848.) In Drummey, at page 83, 87 P.2d at page 853, it was stated:

‘. . . where a statute requires an officer to do a prescribed act upon a prescribed contingency, his functions are ministerial, and upon the happening of the contingency the writ may be issued to control his action.’

Here the express direction of statute is that the Board of Supervisors, upon the happening of a specific contingency, to wit: the zoning ordinance becoming inconsistent by reason of amendment to the general plan, must amend the zoning ordinance to be conformable to the general plan as amended. Here the prescribed contingency has occurred. We conclude the duty to amend to conform the zoning ordinances becomes mandatory. The element of discretion by the Board has been eliminated.

The sole question remaining is whether the Board of Supervisors has acted within a ‘reasonable’ time as required by the terms of the statute. This is a question of fact for the trial court to ascertain from examination of the totality of the circumstances.

If the Board has not, does not, rezone to conform the Rancho del Dios area to the San Dieguito General Plan as amended within a reasonable time, the writ of mandamus may issue to compel its action.

We conclude that the trial court erred in sustaining the demurrer without leave to amend.

Judgment reversed and remanded for further proceedings consistent with the views expressed in this opinion.

FOOTNOTES

1.  Government Code section 66473.5 reads:‘No local agency shall approve a map unless the legislative body shall find that the proposed subdivision, together with the provisions for its design and improvement, is consistent with the general plan required by Article 5 (commencing with Section 65300) of Chapter 3 of Division 1 of this title, or any specific plan adopted pursuant to Article 8 (commencing with Section 65450) of Chapter 3 of Division 1 of this title.‘A proposed subdivision shall be consistent with a general plan or a specific plan only if the local agency has officially adopted such a plan and the proposed subdivision or land use is compatible with the objectives, policies, general land uses and programs specified in such a plan.’

2.  On oral argument counsel for the Santa Fe Company referred to activities taken pending this appeal. Such matters are not before us and are not here determined.

3.  Section 66474 of the Government Code provides in part:‘A legislative body of a city or county shall deny approval of a final or tentative map if it makes any of the following findings:‘(a) That the proposed map is not consistent with applicable general and specific plans.’

4.  Section 66473.5 of the Government Code is set out in Footnote 1.

5.  Section 65860 reads as follows:‘(a) County or city zoning ordinances shall be consistent with the general plan of the county or city by January 1, 1974. A zoning ordinance shall be consistent with a city or county general plan only if:‘(i) The city or county has officially adopted such a plan, and‘(ii) The various land uses authorized by the ordinance are compatible with the objectives, policies, general land uses and programs specified in such a plan.‘(b) Any resident or property owner within a city or a county, as the case may be, may bring an action in the superior court to enforce compliance with the provisions of subdivision (a). Any such action or proceedings shall be governed by Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure. Any action or proceeding taken pursuant to the provisions of this subsection must be taken within six months of January 1, 1974, or within 90 days of the enactment of any new zoning ordinance or the amendment of any existing zoning ordinance as to said amendment or amendments.‘(c) In the event that a zoning ordinance becomes inconsistent with a general plan by reason of amendment to such a plan, or to any element of such a plan, such zoning ordinance shall be amended within a reasonable time so that it is consistent with the general plan as amended.’

6.  Prior to the 1970 amendment to Government Code section 65860 the section read:‘No county or city shall be required to adopt a general plan prior to the adoption of a zoning ordinance.’The 1971 amendment indicated the consistency requirements.

STANIFORTH, Associate Justice.

GERALD BROWN, P. J., and KLEIN (Judge of the Superior Court of Los Angeles County sitting under assignment by the Chairperson of the Judicial Council), J., concur.

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